All rights reserved by the
International Court of Justice
Tous droits réservés par la
Cour internationale de Justice Abbreviated reference:
I.C.J. Pleadings, South West Ajrica,
Vol. VIII
Référenceabrégée:
G.I.]. Mémoires,Sud-Ouest africain,
vol. VIII
Sales nlDDber
No de vente: 325 SOUTH WEST AFRICA CASES
(ETHIOPIA v.SOUTH AFRICA;
LffiERIA v. SOUTH AFRICA)
AFFAIRES DU SUD-OUEST AFRICAIN
(ETHIOPIE c. AFRIQUE DU SUD;
LIDERIAc.AFRIQUE DU SUD) INTERNATIONAL COURT OFJUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETHIOPIA v. SOUTH AFRICA;
LIDERIA v. SOUTH AFRICA)
VOLUME VIII
• 1966
COUR INTERNATIONALE DE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIE c. AFRIQUE DU SUD;
LIBÉRIA c.AFRIQUE DU SUD)
VOLUME VIII .!~
PRINTED IN THE NETHERLANDS The present volume contains the minutes of the public sittings and
the oral arguments on the merits relating to the South West A/rica
cases covering the .Period 15 March to 26 April 1965. The proceedings
in these cases. wh1ch were entered on the Court's General List on
4 November rg6o under numbers 46 and 47, were joined by an Order
of the Court of 20 May rg6r (South West A/rica. Order of 20 May
Ig6I, I.C.]. Reports Ig6I, p. 13}. Two Judgments have been rendered,
the first o21 December rg6z (South West Ajrica, Preliminary Objections,
]udgment,I.C.]. ReportSig62, p. 319), and the second on r8 July 1966
(South West Ajrica, Second Phase, ]udgment, I.C.]. Reports rg66, p6).
The page references originally appearing in the pleadings have been
altered to correspond with the pagination of the present edition.
Where the reference is to another volume of the present edition, the
volume is indicated by a roman figure in bold type.
The Hague, 1966.
Le présent volume reproduit les procès-verbaux des audiences
publiques tenues dans les affaires du Sud-Ouest africain; il porte sur la
période allant du 15 mars au 26 avril 1965 et contient le texte des plai
doiries sur le fond prononcées à l'occasion de ces audiences. Les affaires
du Sud-Ouest africain ont étéinscrites au rôle généralde la Cour sous
8
les n° 46 et 47 le 4 novembre 1960 et les deux instances ont étéjointes
par ordonnance de la Cour l20 mai rg6r (Sud-Ouestafrica or·onnance
du 20 mai rg6r, G.I.]. Recueil rg6I, p. 13). Elles ont fait l'objet de
deux arrêts rendus le21 décembre rg6z (Sud-Ouest africain, exceptions
préliminaires,arr~ Ct..]. Recueil rg62, p. 319) et le r8 juillet rg66
(Sud-Ouest africain, deuxième phase, arrêt,G.I.]. Recueil rg66, 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 le numéro de ce volume.
La Haye, rg66. CONTENTS-TABLE DES MATIÈRES
PART II. ORAL ARGUMENTS (con#nued)
DEUXIÈME PARTIE. PLAIDOIRIES (suite)
MINUTES.PROCÈS-VERBAUX
Page
Public hearings held from 15 March to 14 ]uly, 20 September
to 15 November and 29 November 1965, and 21 March21966 . .
Audiences publiques tenues du 15 mars au 14 juillet, 20 septembre
au 15 novembre et 29 novembre 1965, et 21 mars Ig36 . . .
Public hearing held on r8 July 1966 . . . roo
Audience publique tenue le 18 juillet rg66 . roi
ANNEXES TO THE MINUTEANNEXESAUX PROCÈS-VERBAUX
1.Statement by Mr. Gross (Ethiopia-L18III65. ros
2.Statement by Mr. Barnes {Ethiopia-LibIII65, 18 I06
3·Argument of Mr. Gross (Ethiopia-LibeII65 .18 107
Incompatibility of apartheid with the. . . . . .II3
ObJ:f:c !~~iit~~:r%i.~thia~tc.~m~c a~ .nbiIIJli.ty.
Administrative supervision and judicial protection . . .
Alleged lapsing of the Ma. . . . . . . . . . . 128
4· Argument of Mr. Moore (Ethiopia-LrS-1III65 136
Nature of the mandates system ..... 136
Principle of non-annexation . . . . . . . . . . 138
Obligations of international accou. . . .ty 142
Material well-being and social progress . . . . 146
Historical background duringeriod 1945-1949. 147
S· Argument of Mr. Gross (Ethiopia-Liberia)II65 .2I674
Obligations devolving fromsacred trust" of civil167tion .
Right of recourse to judicial pro(Article 7 of the
Mandate) ..................... . 170
Article2 of the Covenant and A6of the Mandat. . I79
Right of the United Nations to exercise supervisory funetions .
Internationcharacter of the fonctions entto the
Union of South Africa .............. . 193
The concept of an organized international . .mun197
Supervision an alleged "specifie organ" . . . . . . . .
The mandates system at the time of the League's dissolution
Signifi.cance of Article 7, rof tlie Manda.• 215
Limitatioof Respondent's rights over the t. .lto219
Actions and policies of the Respondent within the terri tory . .
PuCharter ..........o, pa.agraph r, of the Unite223ations
Respondent's attitude in I946 . . . . . . . . . . . . . .x SOUTH WEST AFRICA
Page
Legal nature of Respondent's obligations toward the inhabi-
tants of the territory. . . . . . . . . . . . . . . . 231
The concept of international judicial review. . . . . . .. 237
The minorities treaties and the mandates system . . . . . 241
Good faith in the exercise of discretion . . . . . . . . . . 244
Legal norms for determining the nature of Respondent's
obligations . . . . . . . . . . . . . . . . . . . . . 251
Respondent's distinction between "norms" and "standards" 258
Prohibition of discrimination on the basis of race . . . 263
The Applicants' submissions . . . . . . . . . . . . z68
6. Argument of Mr. de Villiers (South Africa),30m-r4 IV65 . ·. 270
Introductory . . . . . . . . . • . . . . . . . . . . . 270
Application for inspectionin loco. . . . . . . . . . . . . 271
Applicants' .charges in the pleadings and Respondent's
. replies thereto . . . . . . . . ·. . 271
African reali ties . . . . . . . . . . . . . 272
Far-reaching implications of this case . . . 272
Dispute as to merits of Respondent's policies 273
Alternative suggested . . . . . . . . . . 273
Even admitted facts require evaluation. . .. . . . . 274
Respective contentions asto the basis of adjudication 275
No power to adjudicate ............ . 275
Abusé of discretionary power . . . . . . . . . . 275
Norms and standards-confusion between method and
principle ....... . 276
Necessity of fullnvestigation ·. 277
States to be visited. . . . . . 278
Soüth West Africa . . . . . 278
South Africa . . . . . . .
Ethiopia and Liberia. . . . . . . . . 278
One or two further sub-Saharan countries. 280
Scheme of Respondent's arguments .... 280
Lapse of the Mandate and accountability . 281
Relationship between two topics. . . . 281
How they arise . . . . . . . . . . . 282
Applicants' case uncertain and variable. 284
Summary of Respondent's case . . . 284
Legal principles applicable . . . . 284
Obligation related to specifieody . 285
Event in 1945-1946 . . . · . 287
Views subsequently expressed . 288
1950 Opinion . . . . . . . . 288
New tacts ......... . 288
Applicants' case.. . . . . . . . 290
Applications . . . . . . . . 290
Memorials .......... . 290
Observations-automatic succession . . . . . 291
. Oral proceedings on Preliminary Objections . 294
Not based on consent. . . . 295
Article 8o(1) . . . . . . . 295
Judgment and opinions in 1962 296 CO~TENTS XI
Page
Counter-Memorial . . . . . . . . . . . . 297
Reply-organized internationalcommunity . 297
Rejoinder.. .. . . . . . . . . . 298
Oral proceedings in 1965 . . . . 299
. General principle of devolution 300
Succession . . . . . . . . . 300
_ Article 8o (r) ....... _. 300
Summary of previous day's argument 301
Article So (r) (cont.) . . . . . . . . . 302
~ubstal!tive_ advro\ceddis oral proceedings 304
Sum!!lary . . . . . . . . . . . . . . 309
Necessity for Respondent's consent . . 309
Applicants' reasons for changing their case 3II
1962 Judgment and opinions 3II
Treatment in Rejoinder 312
- - Expenses case _ . . . . . 312
Barcelona Traction case. . . 313
Consequent dilemma as far as 1950 Opinion concerned . 314
Applicants' reaction to dilemma . . . . - - 314
Adjust own attitude . . . _ . . . . . . 315
Adopt statements in 1956 minority opinion 315
Ambîguous about consent. 317
Summary of conflicting contentions 319
Implications of Applicants' charges 319
Merits of the conflicting contentions 320
Legal principles applicablè _ _ _ . 320
Article 38 of the Statute . . . . . 321
Qnly interpret<J.tion and implication relevant 321
Interpretation . . . . . . . . . . . . . . 322
Implication . . . . . . . . . . .. . . . . 323
Effectiveness . . . . . . . . . . . . . . 325
Respondent's suggested reference to "clear text" 325
What_ authors of Mn,ndate would have done had they
foreseen the future . . . . . . . . . . . . . . . . 327
Use of wide terms . . . . . . . . . . . . . . - . . 329
Barcelona Traction case . . . . . . . . . . . . . . 33 r
\Vhether the supervisory authority was intended to be a
specifie organ . . . . . . . . . . . . . . . . . . . 332
Legal principles applicable . _ . . . . . . . . . . 333
The nature of the implication sought to be drawn by
. Applicants-stillcontains element of succession . . 333
Respondent's argument resuccession in pleadings . . . 334
Applicants' counter thereto . . . . . . . . . . . . . 336
The importance of compromise in mandate arrangement
(historical survey) . . . . . . . . . _ . . . . _ . 336
The founders of the Mandate were concerned about the
· method and extent of accountability . . . . . . . . 341
.Respondent's position . . . . . . . . . . . . . . 348
Comparison with history of drafting of trusteeship
provisions of United Nations Charter . . . . . . . 353
Conclusions to be drawn from historical survey . . . . . 354XII SOUTH WEST AFRICA
Page
Passage by Judge Van Wyk. . . . . . . . . . . . 355
The membership of the League and United Nations not
static . . . . . . . . . . . . . . . . . . . . . 356
Whether founders of the Mandate contemplated a right of
annexation on the dissolution of the League . . . . . 357
Applicability of Barcelona Traction case to international
accountability. . . . . . . . . . . . . . . . . . 358
\Vhether supervision essential where control and benefit
separated. . . . . . . . . . . . . . 365
Analogy with Mandate . . . . . . . . . . . . . 369
Liability to report to the inhabitants . . . . . 370
Events in the years 1945-1946 . . . . . . . . . . 371
Nature of dispute and principles applicable thereto . . 371
Distinction between survival of Mandate and sub
stitution of supervisory organs . . . . . . . . . 373
Views expressed by States regarding former need not
include latter . . . . . . . . . . . . . . . . 373
Court in 1950 accepted severability . . . . . . . . 374
Reliance upon Barcelona Traction case involves
acceptance of severability . . . . . . . . . . 375
In fact States distinguished between these concepts . 376
Foundation of the United Nations and its early history. 376
Early co-existence of League and the United Nations. 376
Mandate for South West Africa discussed at San
Francisco . . . . . . . . . . . . . . . . . . . 376
No provision for mandates in Charter. . . . . . . . 377
No obligation to conclude trusteeship agreement. . . 378
Work of Preparatory Commission . . . . . . . . . 378
Statements by Mandatories that certain mandates
would or might not come under trusteeship . . . . 379
General Assembly resolution re trusteeship (XI) • . . 380
General Assembly resolution re assumption of func-
tions (XIV) . . . . . . . . . . . . . . . . . . 380
Conclusions: future of mandates delibera tely avoided . 382
Applicants' contention that tacit agreement preferred
to express agreement. . . . . . . . . . . . . . 383
Desire to avold delay would suggest lack of any
agreement . . . . . . . . . . . . . . . - . 385
Applicants' contention that supervisory authority of
United Nations assumed by Prepara tory Commission 386
Article 8o (1) of the Charter. . . . . . 387
Conclusion . . . . . . . . . . . . . . . 391
Summary of preceding argument . . . . . . . 391
Final assembly of the League in April 1946 391
Previously given little attention by Applicants 392
Rival contentions of the Parties . . . . . . . . . . . 392
League attitude unlikely to differ from that of the United
Nations . . . . . . . . . . . . . . . . . . . . 393
British statement . . . . . . . . 393
Light thrown by UNSCOP report 395
And by British conduct . . . . 395 CONTENTS XIII
Page
South African statement . . . 396
Light thrown by probabilities 398
Subsequent conduct . . . . 399
French, New Zealand and Belgian statements 399
Australian statement. . . . . . . . . 400
Effect of Article 73 (e) of the Charter 401
History of Article 73 (e) . . . . . . 403
Conclusion ta be drawn from statements . 406
Light thrown by wording of resolution . 406
Chinese draft proposais . . . . . . . . . 407
Difference between them . . . . . . . . . . . . 408
Applicants' explanation for difference in wording . 408
Respondent's explanation for difference in wording. 410
Chinese delegate aware of significance of difference . 4II
Applicants' reliance on Chinese statement. . . . . 413
Final League resolution. . . . . . . : . . 414
Applicants' interpretation. . . . . . . . 414
lncludes supervision . . . . . . . . . . 414
French and Australian staternents in support . . . 415
Similarity in concept and language in various stages . . . 415
Whether States present contemplated continuation of
Mandate as an institution . . . . . . . 416
The Egyptian reservation. . . . . . . . . 417
Conclusion . . . . . . . . . . . . . . . . 418
Subsequent history of League assets, functions and
powers . . . . . . . . . . . . . . 418
Article 102 of the Charter . . . . . 418
Common plan for handing over assets 419
Appointrnent of board of liquidation . 419
Final League resolutions . . . . . . 420
Registra tion under Article 102. . . . 421
Report of board of liquidation 424
Events in the United Nations after dissolution of the
League. . . . . . . . . . . . . . 426
Applicants' contention . . . . . . . 426
Respondent's statements and actions. 427
Method and purpose of survey. . . 427
Errors in Applicants' approach . . 427
Whole evidence to be considered. . . . . . . 427
No prior acceptance by Respondent of continued
accountability. . . . . . . . . . . . . . . 428
Statement that Mandate exists does not neces-
sarily entail substitutioof supervisory organs . 428
Respondent's view as to continuation of Mandate 428
Differences of view on this question . . . . . . 429
No differences asto accountability. . . . . . . 430
Distinction between supervision and agreement
as to change of status 430
Eritrea . . 431
West Irian 432
Palestine . 433XIV SOUTH WEST AFRICA
Pa.ge
. Article 1 of the Charter . . . . . . . 433
Relationship between Articles 6 and 7 (1) . 434
Statements in autumn 1946 . . . . . . . . 434
Memorandum of 16 October 1946 . . . . . 435
. Submission c;>pfroposai for incorporation. . . . 436
. Statement by Smuts on .13 November 1946 (ref
erence to Art. 73(e)) . . . . . . . . . . . . 437
. Applicants' telescoping of passages in the .rg5o
Opinion. . . . . . . . . . . . . . . . . . 44.1
Debates in the Fourth Committee . . . . . . . 444
Comparison between 1935 and 1946 . . . . . . 445
Respondent's conduct after rejection of incorporation
proposai . . . . . . . . . . . . . . . 449
Letter of 23 July 1947 . . . . . . . . ·. . . . 449
Letter of 22 September 1947 . . . . . . . . . 451
Later statements by Respondent . . . . . . . . . 451
Statem{mt by Mr. Lawrence of 27 September 1947 . 452
Statement by !\Ir. Lawrence in November 1947 454
Conclusion . . . . . . . . . . . . 454
Events subsequent to September 1947 455
Submission of information . . . . 455
Action of Trusteeship Council . . 456
Submission of further information 456
Respondent's attitude thereanent . . . . . . . . 456
Whether Respondent still clàimed rights under the
Mandate . . . . . . . . . . . . . . . . . . . 459
State~e byn t r. Louw on r8 November 1948 460
Statement before General Assembly on 17 January
~946 . . . . . . . . . . . . . . . . . . 460
Statement by Mr. Louw on 9 November 1948 . 461
Statement by Mr. Louw on 26 November 1948 461
Statement by l\fr. Louw on 16 November 1948 462
Contentions in regard to Respondent's statements 462
Minority opinion of 1956 . . .· . . : . . 463
1950 Opinion . . . . . . . . . . . . . . . 463
Resolution of House of Assembly . . . . . . 464
Significance oftatement by other States . . . 466
Resolutions of the United Nations . . . . . . . . 466
General Assembly resolution 65 (1) of 14 December
1946 ............... ·. . . . . 466
General Assembly resolution 141 (11)of 1 November
1947 . . . . . . . . . . 467
Debates in Trusteeship Council 468
Membership 468
Australia . 469
Belgium . 470
China . . 471
Costa Rica 473
France . 474
Iraq . . . 474
i\iexico . . 475 CQ}l"TENTS xv
Page
New .Zealand ..
Philippines . . 478
Soviet Union .... 479
Great Britain .. .. . 481
482
United States of America . . 482
China (cont.) . . . . . . . 484
Summary and contentions 485
Debates in the United Nations generally (1947-1949). 486
. Conclusions from statements quoted in Counter
. Memorial-. '~.~ 486
Belgium .. . 487
Brazil ·.. . 487
Cuba." . ·: . 488
ln dia. . . .. . 488
Uruguay . ·....... , ., ... . 489
Mr. Gross' reaction . . . . . . . . . . 490
Resporident's reply thereto-distinction between
survival of Mandate and substitution of super
. visory organs . . . . . . ·. . . . . . . . . . 490
Attitude of the United States of America . . . . . 49 1
Alleged confusion between alternative methods of
. supervision . . . . . . . .. . ... 491
Statements regarding other m·andates .
. New Zealand . . . . .. 492
. Soviet Union .. .. .. . .. . . . .. . 493
. UNSCOP ............ . 493
. United States of America . . . . . 493
493
The case of Palestine . . . . . . . . . . . . . . 493
Mr. Moore's attack on Respondent's list of 25 States soo
States which signed Palestine report . . . 500
Cuba, India.and Uruguay . . . . . . . soo
United States statement to Court in 1950. 500
China and the Philippines. . . . . . . . 502
Conclusion . . .. .. . . . .. .. . . . . . 502
The alleged view.of the United Nations as a whole. 503
Its relevance to consent by Respondent 504
Applicants' factual premise incorrect . . . . . 504
. . Resolution 65.(I). . . . . . . . . . . . . 504
. . Resolution I4I (II) . . . . . . . ·. . . ." 504
. . Resolutions 227 (III) and 337 (IV) . . . . . so6
Conclusion asto events in-the United Nations after dissolu
.tion of the League . . . . . . • . . . . . . . . . •
sos
Whether administration of the territory amounts to a con
tinuing consent to supervision by the United Nations . . 509
Analysis of Applicants' contention . . . . . . . . . . 509
\Vhether actual consent to a substitution of supervisory
· organs has been proved ·. . . . . . . . . . . . . . SIS
Principles of estoppel or preclusion . . . . . . . . . sr6
· No representation by Respondent . . . . . . . . . sr6
Respondent not understood to have made a representa-
tion ·. ·.... ·......... · · · · · · · sr6XVI SOUTH WEST AFRICA
Page
No inconsistent conduct . . . . . . . ·. . . . . . . 517
Suggested relationship between Article 6 and Article 7 (r)
of the Mandate . . . . . . . . . . . . . . . . . 517
Applicants' contention . . . . . . . . . . . . . . . 517
Article 7 (r) as such lapsed on dissolution of League . . .518
Function performed by Article 7 (r) . . . . . . . . . 518
Modification of the Mandate possible through other means 518
Submission of a matter to the United Nations 520
Respondent's attitude and conduct . . . . . . . 520
rgso Opinion . . . . . . . . . . . . . . . . . 521
. MeNair's minority opinion. . . . . . . . . . . . 521
General Assembly resolution 65 (I) of14December 1946 522
Respondent's contention regarding 1950 Opinion. . . 522
Applicants' attempt to discredit it . . . . . 523
Conclusion . . . . . . . . . . . . . . . . 523
The suggested analogy with the cy-pres doctrine 524
The 1950 Opinion and 1962 Judgment and opinions . . . . 525
Weight to be attached to previous judgments and opinions
(Applicants'res judicata contention) 525
Memorials. . . . 525
Counter-Memorial 526
Reply . . . . . . . . . . . . . 526
Rejoinder . . . . . . . . . . . 526
The Court's findings regarding supervision . 527
1950 Opinion . . . . . . . . . . . . 527
1962 Judgment and opinions . . . . . 527
Respondent's analysis . . . . . . . . . . . . . 527
Applicants' attitude in the Reply and Oral Proceedings 528
Judge Jessup's opinion . . . . . . . . . . . • . 529
Sir Louis Mbanefo's opinion . . . . . . . . . . . 529
The Judgment . . . . . . . . . . . . . . . . 530
Fin ding is inconsistent with Applicants' argument 531
The reasoning applied 532
· Essentiality. . . . . 533
Reliability . . . . . 533
Agreement . . . . . 535
Applicants' contentions. . . . . . . 539
' Ali important facts stated" . . . 540
"Mandate as a whole ... in force" . . . . . . 541
No express attention given to Article 6 by Court. 542
Essen tialty (cont.) . . . . . . . . . . . . . 544
. . . Only applies if no United Nations succession 545
Summary of Respondent's contention . . . 546
The 1950 Opinion . . . . . . . . . . . . . 547
Reasons exist for departing therefrom . . . 547
Applicants no longer defend its reasoning . 547
Its correct interpretation. 550
General considerations . 550
Article Bo (r) . . . . . 552
Final League resolution. 554
Article ro of the Charter 554 CONTENTS XVII
Page
Exercise of competence by United Nations (Reso
lutions 141 (II); 227 (III) and 337 (IV)). . . .555
Summary of Respondent's interpretation of the
1950 Opinion . . . . . . . . . . . . . 556
Interpretations suggested by Applicants . . 556
Succession-no consent by Respondent in 1945-
1~)4 .6. . . . . . . . . . . . . . . 556
Article 8o (i) . . . . . . . . . . . . . 557
• Proposai for a temporary trusteeship committee . 5577
Original Chinese proposa! . . . . . . . . . . . 557
Practice of States . . . . . . . . . . . . . . 558
Applicants' deniai that the facts are new. . . . 558
Applicants' difficulty asto materiality of the fac560
Sum~a_r of Respondent's contention re 1950
Opmwn. . . . . . . . . . . . . . . . . . . 561
1955 and 1956 Opi!Jions . . . . . . . . . . . . . 562
Lapse of the Mandate . . . . . . . . . . . . . . . . 563
Respondent's attitude consistent with that in Preliminary
Objections . . . . . . . . . . . . . . . . 563
Primary contention that Article 6 has lapsed . . 566
Principle of severability. . . . . . . . . . . 567
Inseverability of Mandatenot logically essential . 567
Presumed intentions of authors of Mandate . . . 568
View of 1950 Opinion . . . . . . 568
1962 Judgment and opinions . . . . . . 569
ProfessorJ. F, Hogg . . . . . . . . . . 570
Kelsen . . . . . . . . . . . . . . . . 570
Views and conduct of interested States . 571
Final League resolution. . . . . . . . 571
Views in the United Nations 1946-1949. 572
Statements by Respondent up to 1948 . 573
Court's reference thereto in 1950 573
Whethèr they involve an estoppel 574
Respondent's contention that Mandate bas lapsed 574
Alternative findings possible . . . . . . . . . 575
. Practical effect of such findings . . . . . . . 575
Applicants'. reaction to Respondent's submission relapse
of Mandate . . . . . . . . . . . . . . . . . . . 576
The expression "international supervision" . . . . . 576
The consequences of essentiality . . . . . . . . . . 577
If there existed a general obligation of international
accountability. . . . . . . . . . . . . . . . 577
If the obligation related to a specifie supervisory
organ . . . . . . . . . . . . . . . . . . . 578
Summary of rival contentions . . . . . . . . . . . . 580
Effect of the compromissory clause on survival of
Mandate . . . . . . . . . . . . . . . . . . . . 581
Possible findings on Applicants' Submissions1,2, 7 and 8. 583
ArDistinction between interpretation and application. 585XVIII SOUTH WEST AFRICA
Page
The principles of interpretation . . . . . . . . . . 587
Principle ofcontemporaneity . . . . . . . . . . 587
Applicants' difficulty therewith . . . . . . . . . 588
Broadly formulated constitutional type obligations 589
Re Regulation and Control of Aeronautics t'nCanada 590
Certain Expenses of the United Nations case . 591
Brown v.· Board of Education . ·. . . . . . 592
Summary of Respondent's interpretation of Article 2 (2) 594
7· Argumènt of Mr. Grosskopf (South Africa), 14 IV 65 . • 596
The Court was not intended to have jurisdiction to adjudicate
on alleged violations of Article 2. . . . . . . . . . 596
Arguments presented in Respondent's pleading . . . . . 596
No reply thereto in Applicants' pleadings . . . . . . . . 596
Contentions raised by Applicants in Oral Proceedings 597
Absence of jurisdiction would strip obligation of its legal
nature .. ·..... ·. . . . . . 597
Comments by Sir Hcrsch Lauterpacht 598
Views of Quincy Wright . . . . . 6oo
Professer Feinberg . . . . . .. .. .. 6oo
Mandate cases in municipal courts . 601
- Murra and Altshuler . . 601
Winter . . . . . . . . 602
Deniai of justice to aliens . 603
Afterthought . . . . -. . . . . . . . . . . . , 604
- Minimum- international standard not generally ac
cepted in 1920. -. -. -. . . . . . . , . . . . . . 604
J udicial review as regards such standards uncommon 607
International standards in itself a limited concept 607
Minorities and I.L.O. constitution . . . . 6oS
Other examples . . . . . . . . . . . . 6og
European Convention on Human Rights 6og
Conclusion ·. . . . . . . . , . . . . . 610
8. Argu~en otMr. de Villiers (South Africa), IIV 65 . 611
Alternative contention: abuse of discretionary power 611
Introduction -. -. ·. . . . . . . . . . 611
Issue tums on interpretation of Article 2 611
Interpretation submitted by Respondent 612
Propositions (a) and (b) . . . . . . 612
Propositions (c) and (d) . . . . . . 613
"For the purpose of promoting" . . 613
Purpose basic to a trust or mandate . 614
Sir Arnold McNair's opinion in 1950 . . . , 614
The Mandates System:- Origin: Principles: Appli-
' · . cation .. . . . . . 615
Hymans report . . . 615
1950 -Opinion . . . . 615
Chief Justice Lathan . 616
1962 Judgment 616
Lord Hailey . . . . 616 CONTENTS XIX
Page
The principles upon which an exercise of discretionary
power may be tested . . . . . 617
The wording of Article 2 . • . 617
ln volves a discretionary power. 6r7
Chief Justice Lathan . . . . 6r8
M. Orts. . . . 6r8
Quincy Wright 6rg
Lord Hailey. . 6rg
Bentwich . . . . . . . . . 6rg
Meaning and effect of discretion 619
The Court's role . . . . . . . 620
Position in municipal systems . . . . . . 621
Ways in which a discretion may be abused . . . . . 621
Article 2 provides a limitation only by reference to
purpose . . . . . . . . . . . . . . . . . . . 622
Sense in which expression "good faith" used . . . . . 623
Applicants' contention . . . . . . . . . . . . . . . 624
Does not rely on bad results . . . . . . . . . . . 624
Does not rely on alternative interpretationof Article 2 625
Summary of Respondent's contention re interpretationof
Article 2 . . . . 625
Lighthouses case . . . . . . . . . . . . . . . . . 626
The Court's role . . . . . . . . . . . . . . . . . 627
Whether a relevant distinction between Article 2 and
Articles 3·5 . . . . . . . . . . . . . . . . . . . 628
Effect of Article 6 in this regard. . . . . . . . . . 628
Hymans report re scope of Council's supervisory func-
tions . . . . . . . . . . . . . . . . . 629
Distinguished from question whether violation has
occurred . . . . . . . . . . . 629
Statement by Lloyd George . . . 630
Respondent's proposition (e) (no legal norms for deter-
mining extent of well-being). . . . . . . . . . 630
Applicants' rendering thereof . . . . . . . . . 631
Limitations on Respondent's discretion suggested by
Applicants . . . . . . . . . . . . . . . . 631
ln priciple a discretion may be limited . . . . 632
Manner in which Article 2 is to be interpreted . 632
R. v. Burah 3 App. Cas. . . . . . . . . . 632
Norm of non-discrimination . . . . . . . . . 634
WouJd e]jminate enquiry as to motive . . . 634
Does not rest upon interpretation of Mandate . . . 634
Article 2 cannot be interpreted as an obligation to
achieve a result of optimum well-being . . . . . 634
Applicants do not rely on suèh an interpretation. 635
Applicants avoid comparisons of results achieved,
e.g., in education (Italian Somaliland/South
West Africa) . . . . . . . . . . . . . . . 636
Whether an implied term in ~fandat enjoining
application of modern standards . . . . . . . . 637
Norm not based on Respondent's consent. . . . . 638xx SOUTH WEST AFRICA
Page
Court asked for judiciallegislatio. . . . . . . • 639
l\ianner in which intent may be established . . . . . 640
Extent· of Applicants' reliance on Respondent's
intent .. ·. 640
Memorials 640
Reply . ·. . . . 640
Rejoinder 642
Oral Proceedings . . 643
Difference between Parties asto nature of intent and
its proof . . . . . . . . . . . . . . . . . . 644
The presumption that foreseeable consequences
are intended . . . . . . . . . . . . . 646
· Authorities in municipal systems . . . . 647
What evidence can be led to establish intent 649
. . . ~vide addiuced by Applicants 6sr
Conclusion as to Applicants' reliance on intent 652
Applicapts' reliance Ôn norms and standards 653
Singular or plural . . . . . . . . . . . 653
History of norm of non-discrimination . . 654
Memorials . . . . . . . . . . . . . 654
· Counter-Memorial . . ·. . ·. . . . . . . . . . 657
Norms in Memorials did not eliminate discretion . 659
Reply . . . . . . . . . . . . . . . . . . . 66r
Rejoinder . . . . . _ . . . . . . . . . . . . . 66r
Applicants' deniai that they introduced new cause of
action inthè Reply . . . . . . . . . . . . . . 66r
Further change in oral argument-content of norm
· qualified. . . . . . . . . . . . . . ·. . . . . 663
Reintroduces discretionary element. . . . . . . 664
· Protection and coercion not mutually exclusive.. . 665
· What is comprehended in "protection" . . . . . . 665
Different case now before the Court . . . . . . . 666
Respondent's admitted policies do not contravene it 667
Differentiatiimaccepted and contemplated in Mandate
and League period . . . . . . . . . . . . . . . . 667
Generally . . . . . . . ·. . . . . . . . . . . . . 668
· The Mandates tliemselves and Article 22 of the Cov-
enant. . . . . . . . . . . . . . . . . . . . . 66g
· Attitude of the Permanent Mandates Commission . . 670
Authors of the Mandate aware of South African
policies . . . . . . . . . . . . . . . . 67r
Differentiai policies in other area. . . . . 67r
Protection and coercion . . . . . . . . . 673
By what process did differentiationbecome illegal 674
Distinction with Brown case in United States . 674
Applicants' contention that existence of norm not denied . 674
Respondent's dissent . . . . . . . . . . . . . . . . 675
Have Applicants established standards or canons of good
government . . . . . . . . . . . . . . . . . . . . 676
Applicants' relationship between norms and standards. • 676 CONTE~TS XXI
Page
Standards based on views of governments, but conduct
irrelevant . . . . . . . . . . . . . . . 677
United Nations requirements in education . 6;8
Court not to examine merits of such views . . 679
Also adopt views of United Nations agencies 68o
Propositions established in preceding argument . . . . 68o
Respondent's distinction between norms and standards. 68o
Applicants' criticism thereof . . . . . . . . . 68r
Applicants' attempt to create new source of law . 682
Authorities quoted by Applicants . . . . . . . 682
Corfu Channel . . . . . . . . . . . . 683
Louisiana ex rel. Francis v. Resweber . . 683
Deniai of justice to aliens-source of validity of
obligation. . . . . . . . . . . . . . . 683
Quincy Wright . . . . . . . . . . . . . . 683
Function of Permanent Mandates Commission re-
garding standards . . . . . . . . . . . . . 684
Deniai of justice to aliens-content of obligation . 686
True significance of modern standards of administration 68g
Test of abuse of power provides valuable check • . 6gr
Inference of mala fides must be a necessary one . . . . 6gz
Respondent differs from general modern thought only on
question of method, . . . . . . . • . . . . . . . 693
Standard of non-discrimination . . . . . . . . . . . . 693
Distinction between non-oppression and non-differen-
tiation . . . . . . . . . . . . . . . . . . 694
Condemnations of Respondent's policies . . . . 694
Draft Convention on elimination of all forms of racial
discrimination. . . . . . . . . . . . . . . 695
Preceding de bates . . . . . . . . . . . . . . . . 696
Differentiation between nationals and aliens-analogy
with South West Africa . . . . . . . 6g6
Other permissible forms of differentiation . 697
Measures for protection . . . . . . . . . . ;oo
Whether a dispute of fact exists between the Parties . ;or
If Applicants rely on absolute norm . . ;or
"Protection not coercion" qualification . ;or
Premises of Respondent's polides . . . ;or
Weight of scientific authority . . . . 702
Applicants' definition of apartheid . . . . 703
What purpose envisaged for Applicants' contemplated
future treatment of facts . . . . . . . . . . . . . 704
Finding in Respondent's favour in law would eliminate
factual enquiry . . . . . . . . . . . . . . . 705
Such a finding would be a positive one . . . . . ;o6
Unilateral modification of the Mandate (Submissions 5
and 9) . . . . . . . 707
Factual disputes. . . 708
Intent to incorporate. 709 PART Il (continued)
SECTION B
ORAL ARGUMENTS ON THE MERITS
PUBLIC HEARINGS
held from I5 March to I4 J uly,20 5eptember to
IS November and 29 November z965, 2I Marchand
on z8 ]uly zg66, the President, Sir Percy Spender,
presiding
PARTIE Il (suite)
SECTION B
PLAIDOIRIES RELATIVES AU FOND
AUDIENCES PUBLIQUES
tenues du I5 mars au I4 fuillet, d20 septembre
au IS novembre, le29 novembre z965, le 2I mars
et lez8 fuilletzg66, sous la présidencede
sir Percy Spender, Président MINUTES OF THE HEARINGS HELD FROM
15 MARCH TO 14]ULY, 20 SEPTEMBER TO
15 NOVEMBER AND 29 NOVEMBER 1965,
21 MARCHAND ON 18]ULY 1966
YEAR rg65
FIRSTPUBLICHEARING{15 II65, 3 p.m.)
P1'esent:President Sir Percy SPENDER;Vice-President Wellington Koo;
KORETSKYTNI, ANAKAj, ESSUP,i\IQRELLI, ADILLANERVO,FORSTERGMA, ROS;
]udges ad hoc Sir Louis MBANEFO,van WYK; Deputy-Registrar AQuA
RONE.
Also present:
For the Government of Ethiopia:
H.E. Dr. Tesfaye GEBRE-EGZY,
The Honourable Ernest A. GRoss, Member of the New York Bar,
as Agents;
Mr. Edward R. MooRE, Under Secretary of State of Liberia,
_Mr.Keith HIGHET,Member of the New York Bar,
as Counsel.
For the Government of Liberia:
H.E. Mr. Nathan BARNES,
The Honourable Ernest A. GRoss, Member of the New York Bar,
as Agents;
Mr. Edward R. MooRE, Under Secretary of State of Liberia,
Mr. Keith HIGHET,Member of the New York Bar,
as Counsel.
For the Government of Southfrica:
Dr. J.P. verLoren van THEMAAT ,.e.,Professor of InternationLaw
at the University of South Africa and Consultant to the Departmeof
Foreign Affairs,
Mr. R. McGREGOR,Deputy Chief State Attorney,
as Agents;
Mr. D. P.de Villiers, S.C., Member of the South African Bar,
Mr. G. van R. MULLER, s.e.,Member of the South African Bar,
Dr. P. J.RABIE, s.e.,Member of the South African Bar,
Mr. E. M. GRossKOPF, Member of the South African Bar,
Dr. H. J.O. van HEERDEN,Member of the South African Bar,
as Counsel;
Mr. R.F. BoTHA,Department of Foreign Affairs and Advocate of the
Supreme Court of South Africa,
Mr. H. ]. ALLEN,Department of Bantu Administration and Devel
opment, PROCÈS-VERBAUX DES AUDIENCES TENUES DU
15 MARS AU 14]UILLET, 20 SEPTEMBRE AU
15 NOVEMBRE ET 29 NOVEMBRE 1965,
21 MARS ET LE r8 JUILLET 1966
ANNÉE1965
PREMIÈREAUDIENCE PUBLIQUE(15 III 65, I5 h)
Présents: sir Percy SPENDER, Président ; M. WELLINGTONKoo,
Vice-Président; MM. WINIARSKI, BADAWI, SPIROPOULOSs ,ir Gerald
FITZMAURICEM , M. KORETSKY,TANAKA,}ESSUP, MORELLI,PADILLA
NERVO,FoRSTER,GROS,juges; sir Louis MBANEFO,M. van WYK, Juges
ad hoc; M. AQUARONEG , reffiert:tdjoint.
Présentségalement:
Pour le Gouvernement éthiopien:
S. Exc. M. Tesfaye GEBRE-EGZY,
L'honorable Ernest A. GRoss, membre du barreau de New York,
comme agents;
M. Edward R. MoORE,sous-secrétaire d'Etat du Libéria,
M. Keith HIGHET,membre du barreau de New York,
comme conseils.
Pour le Gouvernement libérien:
S. Exc. M. Nathan BARNES,
L'honorable Ernest A. GRoss, membre du barreau de New York,
comme agents;
M. Edward R. MooRE, sous-secrétaire d'Etat du Libéria,
M. Keith HIGHET,membre du barreau de New York,
comme conseils.
Pour le Gouvernement sud-africain :
M. J.p.VERLOREN vANTHEMAAT '.e.professeur de droitin tema tional
à l'Université d'Afrique du Sud, consultant auprès du département des
Affaires étrangères,
M. R. McGREGOR,Chief State Attorney adjoint,
· comme agents;
M. D. P. de VILLIERS,s.e.,membre du barreau d'Afrique du Sud,
M. G. van R. MULLER, s.e.,membre du barreau d'Afrique du Sud,
M. P.J. RABIE, S.C.,membre du barreau d'Afrique du Sud,
M. E. M. GROSSKOPFm , embre du barreau d'Afrique du Sud,
M. H. J.O. van HEERDEN, membre du barreau d'Afrique du Sud,
comme conseils:
M. R. F. BOTHA,du département des Affaires étrangères, avocat à
la Cour suprême d'Afrique du Sud,
M. H. J.ALLEN,du departement de l'Administration et du Développe
ment bantous,4 MINUTES
Mr. H. HEESE, Department of.Foreign Affairs and Advocate of the
Supreme Court of South Africa,
as Advisers.
The PRESIDENT opened the hearing and delivered an address to mark
the twentieth anniversary of the United Nations.
After formally opening the hearing in the South West Africa cases,
the President said that before, however, proceeding further, mention
should be made of a matter of a preliminary character, not concerned
with the merits of the case, which had suddenly arisen at the instance
of the Agent for one of the States Parties to these proceedings. In
these circumstances the Court had decided to recess the public hearing
in order to deal immediately with this matter. For that purpose, after a
short recess, the Court would reconvene and sit in private to hear this
preliminary matter, in accordance with a decision of the Court taken un
der Article 46 of the Statute of the Court, and there being no objection
by the Parties.
·The Court rose at3.20 p.m.
{Signed) Percy C. SPENDER,
President.
(Signed) S. AQUARONE,
Deputy-Registrar.
FIRSTCLOSED HEARING {15III 65, 3-35 p.m.)
Present: [See first public hearing.] .
The Court sat in private to hear the contentions of the Parties with
regard to the application of the Respondent conceming the composition
of the Court [see South West A/rica, Order of I8 March I965, I.C.].
Reports I965, page 3).
. The Court rose at 6 p.m.
[Signatures.]
[SECOND CLOSED HEARING (r6III65, IO a.m.)
Present: [See hearing of rs III65.]
The Court sat in private to hear the contentions of the Parties with
regard to the application of the Respondent concerning the composition
of the Court [see South West Africa, Order of I8 March I965, I.C.].
Reports I965, page 3].
The Court rose at II a.m.
[5 ignatures.j PROCÈS-VERBAUX 5
M. H. HEESE, du département des Affaires étrangères, avocat à la
Cour suprêmed'Afrique du Sud,
comme conseillers.
Le PRÉSIDENTouvre l'audience et prononce une allocution à l'occasion
du vingtième anniversaire des Nations Unies.
Après avoir officiellement ouvert la procédure orale dans les affaires
du Sud-Ouest africain, le Président déclare qu'avant de poursuivre, il
doit mentionner qu'une question de caractère préliminaire, ne touchant
pas au fond de l'affaire, vient soudainement de se poser sur l'initiative de
l'agent de l'un des Etats Parties aux instances. Cela étant, la Cour a
décidé de lever l'audience publique afin d'examiner immédiatement
le problème. A cet effet, après une brève suspension, la Cour se réunira
à huis clos pour s'entendre exposer cette question préliminaire, confor
mément à la décision qu'elle a prise en vertu de l'article 46 du Statut
de la Cour et·sans objection de la part des Parties.
L'audience est levéea I5 h 20
Le Président,
(Signé) Percy C. SPENDER,
Le Greffier adjoint,
(Signé) S. AQUARONE.
PREMIÈRE AUDIENCE À HUIS CLOS (I5 lii65, I5 h 35)
Présents: [Voir première audience publique.]
La Cour siège à huis clos pour entendre les observations des Parties
sur la requête du défendeur relative à la composition de la Cour (voir
Sud-Ouest africain, ordonnance du r8 mars I965, G.I.]. Recueil rg65,
p. J].
L'audience est levéeà r8 h
[Signaturès.}
DEUXIÈME AUDIENCE À HUIS CLOS (16 Ill 65, IO h)
Présents: [Voir audience du IS III65.]
La Cour siège à huis clos pour entendre les observations des Parties
sur la requête du défendeur relative à la composition de la Cour [voir
Sud-Ouest africain, ordonnance du I8 mars I965, G.I.]. Recueil rg65,
p. J]. .
L'audience est levéeà II h
[Signatures.}6 MINUTES
SECOND PUBLICHEARING {18III 65, 10 a.m.)
Present: [See hearing of 15 III65.]
The PRESIDENT said that the public hearings in the South West Africa
cases were resumed. They had been suspended since 15 March to enable
the Court to hear in private an application by South Africa concerned
with the composition of the Court to hear and decide on the cases pre
sently before the Court, and to enable the Court to deliberate thereon.
On that application an Order was made by the Court. After reading the
text of the Order of 18 March 1965, the President called upon the Agent
for the Applicants.
Mr. GROSSmade the speech reproduced in the annex 1•
The PRESIDENTcalled upon Mr. Eames. 2
Mr. BARNESmade the speech reproduced in the annex •
The PRESIDENTcalled upon Mr. Gross.
Mr. GRoss began the speech reproduced in the rumex 3•
The Court adjourned from rr.2o a.m. to II.40 a.m.
4
Mr. GROSSconcluded the speech reproduced in the annex •
The PRESIDENTcalled upon Mr. Moore.
Mr. MooRE began the speech reproduced in the annex 5•
The Court rose at r2.55 p.m.
[Signatures.]
THIRDPUBLICHEARING (19 III 65, 10 a.m.)
Present: [See hearing of 15 III 65.]
The PRESIDENTopened the hearing and called upon Mr. Moore
6
Mr. MooRE continued the speech reproduced in the annex •
The Court adfourned from rr.2o a.m. to rr4o a.m.
Mr. MooRE concluded the speech reproduced in the annex 7•
The PRESIDENTcalled upon Mr. Gross.
8
Mr. GRoss began the speech reproduced in the annex •
The Court rose at I p.m.
[Signatures.]
FOURTH PUBLICHEARING (22 III65, 3 p.m.)
Present: [See hearing of I5 m 65.]
The PRESIDENTopened the hearing and called up~n Mr. Gross.
1 See p. 105.
2 See p. 1o6.
3 See pp. 107·120.
• See pp. 12D-136.
~ See pp. 136-138.
6 See pp. 138-155·
7 See pp. 155-166.
1 See pp. 167- 170. PROCÈS-VERBAUX
7
DEUXIÈMEAUDIENCE PUBLIQUE (r8 III65, IO h)
Présents: [Voir audience du 15 Ill 65.)
Le PRÉSIDENTdéclare que la Cour reprend en audience publique les
affaires du Sud-Ouest africain. Les audiences ont étésuspendues depuis
Je 15 mars pour permettre à la Cour d'êtresaisie à huis clos d'une re
quêtedéposée par l'Afrique du Sud relativement à la composition de la
Cour aux fins des affaires qui lui sont actuellement soumises, et pour lui
permettre de délibérersur cette requête. Sur ladite requête, la Cour a
rendu une ordonnance. Après avoir lu le texte de l'ordonnance du r8
mars rg65:
Le PRÉSIDENTdonne la parole à l'agent des demandeurs.
1
M. GRoss prononce l'exposéreproduit en annexe •
Le PRÉSIDENTdonne la parole à M. Eames.
M. BARNESprononce l'exposéreproduit en annexe 2•
Le PRÉSIDENTdonne la parole à M. Gross.
M. GROSScommence l'exposéreproduit en annexe 3•
L'audience, suspendue à II h 20, est reprise à II h 40
M. GROSStermine l'exposéreproduit en annexe •.
Le PRÉSIDENTdonne la parole à M. Moore.
M. MooRE commence l'exposéreproduit en annexe 5•
L'audience est levéeà I2 h 55
[Signatures.)
TROISIÈMEAUDIENCE PUBLIQUE (19 III 65, IO h)
Présents:-[Voir audience du rs Ill 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. Moo6e.
M. MoOREcontinue l'exposéreproduit en annexe •
L'audience, suspendue à II h 20, est reprise à II h 40
M. MooRE termine l'exposéreproduit en annexe 7•
Le PRÉSIDENTdonne la parole à M. Gross.
M. GRosscommence l'exposéreproduit en annexe 8•
L'audience est levéeà IJ h
[Signatures.]
QUATRIÈME AUDIENCE PUBLIQUE (22 III 65,IS h)
Présents: [Voir audience du rs m 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. Gross.
1 Voir p. 105.
zVoir p. 106.
3Voir p. 107-120.
• Voir p.120-136.
1 Voir p. 136-138.
1Voir p. 138-155·
1Voir p. 155-166.
• Voir p.167-170.8. MINUTES
Mr. GRoss continued the speech reproduced in the annex 1•
The Court adjourned from 4.20 p.m. to 4.40 p.m.
2
Mr. GRoss continued the speech reproduced in the annex •
The Court rose at 6 p.m.
[Signatures.]
FIFTH PUBLIC HEARING (23 III 65, 10 a.m.)
Present: [See hearing of rs III 6s.J
The PRESIDENTopened the hearing and called upon Mr. Gross.
Mr. GRoss continued the speech reproduced in the annex 3•
The Court adjourned from II.20 a.m. to II.40 a.m.
Mr. GRoss continued the speech reproduced in the annex ~.
The Court rose at I p.m.
[Signatures.]
SIXTH PUBLIC HEARING (24 III65, IO a.m.)
Present: [See hearing of 15 III 65.]
The PRESIDENTopened the hearing and called upon Mr. Gross.
Mr. GROSScontinued the speech reproduced in the annex 5.
The Court adjourned from II.20 a.m. to II.40 a.m.
Mr. GRoss concluded the speech reproduced in the annex 6•
The PRESIDENTasked when the Respondent would be ready to pro
ceed with its presentation.
Dr. VERLOREN VANTHEMAAT said that Respondent had hoped-to be
ready by Monday, 29 March, but the presentation on behalf of the Ap
plicants had been longer than expected, had introduced new material,
and had dealt With certain factual issues. In those circumstances
Respondent would need until at least Tuesday ta prepare its argument
fully.
The PRESIDENTsaid that while he would have hoped that Respondent
might have been able to commence on Monday, the Court would adjourn
until Tuesday, 30 March, at ro a.m.
The Court rose at I p.m.
[Signatures.]
1 See pp. r7o-r88.
2 See pp. r88-204.
3 See pp. 204-221.
• See pp. 221-236.
5 See pp. 237-253·
6 See pp. 253·269. PROCÈS-VERBAUX 9
M. GRoss continue l'exposéreproduit en annexe 1•
L'audience, suspendue à z6 h zo, est reprise à z6 h 40
2
M. GRoss continue l'exposéreproduit en annexe •
L'audience est levéeà I8 h
[Signatures.]
CINQUIÈMEAUDIENCE PUBLIQUE (23 III 65, IO h)
Présents: [Voir audience du 15 III 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. Gross.
M. GRoss continue l'exposéreproduit en annexe 3•
L'audience, suspendue à II h zo, est reprise à II h 40
4
M. GROSScontinue l'exposéreproduit en annexe •
L'audience est levéeà IJ h
[Signatures.]
SIXIÈMEAUDIENCE PUBLIQUE (24 III65, IO h)
Présents: [Voir audience du 15 III 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. Gross.
M. GRoss continue l'exposéreproduit en annexe 5•
L'audience, suspendue à II h 20, est reprise à II h 40
M. GRoss termine l'exposéreproduit en annexe 6•
Le PRESIDENTdemande quand le défendeur sera prêt à présenter ses
plaidoiries.
M. VERLORENVANTHEMAATdéclare que le défendeur espérait être
prêtà prendre la parole le lundi 29 mars mais que les demandeurs ont
plaidé plus longuement que prévu et qu'ils ont présentéune documen
tation nouvelle et traité de quelques points de fait. Dans ces conditions,
il conviendrait de donner au défendeur au moins jusqu'au mardi pour
préparer complètement ses plaidoiries.
Le PRÉSIDENTdéclarequ'il espérait que le défendeur serait en mesure
de commencer ses plaidoiries le lundi; la prochaine audience se tiendra
toutefois le mardi 30 mars à IO h.
L'audience est levéeà IJ h
[Signatures.]
1
Voir p. 17o-r88.
2 Voir p. r88-2o4.
3 Voir p. 204-221.
• Voir p. 221-236.
5 Voir p. 237-253.
6 Voir p. 253-269.10 MINUTES
SEVENTH PUBLICHEARING (30 III65, 10 a.m.)
Present: [See hearing of rs m 65.]
The PRESIDENTopened the hearing and called upon the Agent for the
Govemment of South Africa.
Dr. VERLOREN VANTHEMAAT asked the President to call upon Mr. de
Villiers.
The PRESIDENTcalled upon Mr. de Villiers. 1
Mr. de VILLIERSbegan the speech reproduced in the annex •
The PRESIDENTasked the Agent for the Applicants whether it was
his desire to express any view upon the matter which had been raised
by the Agent for South Africa, or whether he would prefer to express
such views as he desired to put to the Court at a later sta~e.
Mr. GRoss replied that with the Court's leave the Applicants would
not deal with the subject then, but would reserve their right to deal
with it in what they would regard as a more suitable time and context.
It had been raised prematurely, and involved serions issues of fact with
which the Applicants had not dealt in deference to the view that questions
of law were to be treated at the present stage.
The PRESIDENTcalled upon Mr. de Villiers to continue his address.
2
Mr. de VILLIERScontinued the speech reproduced in the annex •
The Court adjourned from II.20 a.m, to II.40 a.m.
Mr. de VILLIERScontinued the speech reproduccd in the annex 3 •
The Court rose at I p.m.
[Signatures.]
EIGHTHPUBLICHEARING (31 III 65, IO a.m.)
Present: [See hearing of rs III 6s.J
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex ~.
The Court adjourned from II.25 a.m. to II.45 a.m.
Mr. de VILLIERScontinued the speech reproduced in the annex 5•
The Court rose at r2.55 p.m.
[Signatures.)
NINTHPUBLICHEARING (r IV65, IO a.m.)
Present: [See hearing of rs III 65.]
The PREsiDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex 6•
1 See pp. 270-280.
2 See pp. 280-285.
3 See pp. 285-300.
4 See pp. JOI-JI].
6 See pp. 317·33r.
See pp. 331·347· PROCÈS-VERBAUX II
SEPTIÈME AUDIENCE PUBLIQUE (JOIII 65, IO h)
Présents: [Voir audience du 15 lli65.]
Le PRÉSIDENTouvre l'audience et donne la parole à l'agent du Gou
vernement sud-africain.
M. VERLOREN VANTHE:MAAp Trie le Président de bien vouloir donner
la parole à M. de Villiers.
Le PRÉSIDENTdonne la parole à M. de Villiers.
M. de VILLIERScommence l'exposéreproduit en annexe 1•
Le PRÉSIDENTdemande à l'agent des demandeurs s'il désire donner
son avis sur la question soulevéepar l'agent de l'Afrique du Sud ou s'il
préfère présenter à la Cour à un stade ultérieur les vues qu'il désire
exprimer.
M. GRoss répond qu'avec la permission de la Cour les demandeurs
préféreraient ne pas discuter la question immédiatement et se réserver
le droit d'en traiter à un moment et dans un contexte plus appropriés.
Cette question, qui a étéintroduite prématurément, soulève d'importants
points de fait que les demandeurs n'ont pas encore abordés étant donné
que la présente phase doit porter sur les points de droit.
Le PRÉSIDENTinvite M. de Villiers à continuer sa plaidoirie.
M. de VILLIERScontinue l'exposéreproduit en annexe 2•
L'audience, suspendue à II h 20, est repriseà II h 40
3
M. de VILLIERScontinue l'exposéreproduit en annexe .
L'audience est levéeà IJ h
[Signatures.]
HUITIÈMEAUDIENCE PUBLIQUE (31 III 65, tO h)
Présents: [Voir audience du 15 III 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
M. de VILLIERScontinue l'exposéreproduit en annexe •.
L'audience, suspendue à II h 25, est reprise à II h 45.
M. de VILLIERScontinue l'exposéreproduit en annexe 5•
L'audience est levéeà I2 h 55
[Signatures.]
NEUVIÈMEAUDIENCE PUBLIQUE (1 IV65, IO h)
Présents: [Voir audience du rs III 6s.J
Le PRÉSIDENT ouvre l'audience et donne la parole à M. de Villiers.
M. de VILLIERScontinue l'exposéreproduit en annexe 6. · ·· · ·
1 Voir p. 270-280.
3 Voir p. 280-285.
4 Voir p. 285-300.
Voir p. 301-317.
5 Voir p. 317-331.
6 Voir P· 331-347.12 MINUTES
The Court adjourned from..rr.20 a.m. to II.40 a.m.
Mr. de VILLIERScontinued the speech reproduced in the annex 1•
The Court rose at r2.55 p.m.
[Signatures.]
TENTHPUBLICHEARING(2 IV65, IO a.m.)
Present: [See hearing of 15 III 65.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex 2•
The Court adjourned from rr.2o a.m. to II-40 a.m.
Mr. de VILLIERScontinued the speech reproduced in the annex 3•.
The Court rose at I2.55 p.m.
[Signatures.]
ELEVENTH PUBLICHEARING(5 IV65, 3 p.m.)
Present: [See hearing of 15 III 65.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex 4.
The Court adjourned from 4.20 p.m. to 4.40 p.m.
Mr. de VILLIERScontinued the speech reproduced in the annex 5•
The Court rose at 6 p.m.
[Signatures. 1
TWELFTHPUBLICHEARING(6 IV65, IO a.m.)
Present: [See hearing of 15 m 65.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex 6•
The Court adjourned from II.20 a.m. to II.40 a.m.
Mr. de VILLIERScontinued the speech reproduced in the annex 7 •
The Court rose at .r2.50 p.m.
[Signatures. 1
1See pp. 347-362.
2 See pp. 362-377.
3 See pp. 377-391.
• See pp. 391-406.
' See pp. 40&-421.
7 See pp. 422-436.
See pp. 436-450. PROCÈS- VERBAUX IJ
L'audience, suspendue à II h 20, est reprise à II h 40
1
l\1.de VILLIERScontinue l'exposéreproduit en annexe •
L'audience est levéeà I2 h 55
[Signatures.]
DIXIÈME AUDIENCE PUBLIQUE (2 IV 6S, IO h)
Présents: [Voir audience du 15 III 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
111 .e VILLIERScontinue l'exposéreproduit en annexe 2•
L'audience, suspendue à II h 20, est reprise à II h 40
3
M. de VILLIERScontinue l'exposéreproduit en annexe •
L'audience est levéeà I2 h 55
[Signatur~s.j
ONZIÈME AUDIENCE PUBLIQUE (S IV 65, I5 h)
Présents: [Voir audience du 15 III 6s.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
M. de VILLIERScontinue l'exposéreproduit en annexe •.
L'audience, suspendue à I6 h 20, est reprise à r6 h 40
5
M. de VILLIERScontinue l'exposéreproduit en annexe •
L'audience est levéeà r8 h
[Signatures.]
DOUZIÈME AUDIENCE PUBLIQUE (6 IV 65, IO h)
Présents: [Voir audience du 15 III65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
M. de VILLIERScontinue l'exposéreproduit en annexe 6•
L'audience, suspendue à II h 20, est reprise à II h 40
7
M. de VILLIERScontinue l'exposéreproduit en annexe •
L'audience est levéeà I2 h sa
[Signatures.]
1 Voir p. 347-362.
2 Voir p. 36z-377.
3 Voir p. 377-39!.
• Voir p. 391-406.
s Voir p. 4o6-421.
6
1 Voir p. 4'22•4J6.
Voir p. 436-450. MINUTES
THIRTEENTH PUBLICHoEARIN( G7 IV 65, IO a.m.)
Present: [See hearing of 15 III 65.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex 1•
The Court adfourned from II.20 a.m. to II.40 a.m.
2
Mr. de VILLIERScontinued the speech reproduced in the annex •
The Court rose at r2.55 p.m.
[Signatures.]
FOURTEENTH PUBLICHEARING(8 IV65, IO a.m.)
Present: [See hearing of 15 III 65.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex 3.
The Court adjourned from II.2o a.m. to II.40 a.m.
Mr. de VILLIERScontinued the speech reproduced in the annex 4•
The Court rose at I2.40 p.m.
[Signatures.]
FIFTEENTHPUBLICHEARING(9 lV 65, IO a.m.)
Present: [See hearing of 15 III 65.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex 5•
The Court adjourned from II.20 a.m. to II.40 a.m.
6
Mr. de VILLIERScontinued the speech reproduced in the annex •
The Court rose at I2.55 p.m.
[Signatures.]
SIXTEENTHPUBLICHEARING(12 IV65, 3 p.m.)
Present: [See hearing of 15 Ill 65.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex 7•
1 See pp. 45o-465.
~ See pp. 465-48r.
3 See pp. 48r-496.
• See pp. 496-508.
' See pp. 508-523.
6 See pp. 523-538.
7
See pp. 538-553. PROCÈS-VERBAUX 15
TREIZIÈME AUDIENCEPUBLIQUE(J IV 65, IO h)
Présents: [Voir audience du 15 III 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
1
M. de VILLIERScontinue l'exposé reproduit en annexe .
L'audience, suspmdue à II h 20, est reprise à II h 40
M. de VILLIERScontinue l'exposé reproduit en annexe 2.
L'audience est levéeà I2 h 55
[Signatures.]
QUATORZIÈMEAUDIENCEPUBLIQUE(8 IV 65, 10 h)
Présents: [Voir audience du 15 III 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à l\L de Villiers.
M. de VILLIERScontinue l'exposé reproduit en annexe J.
L'audience, suspendue à II h 20, est reprise à II h 40
l\L de VILLIERScontinue l'exposé reproduit en annexe~.
L'audience est levéeà I2 h 40
[Signatures.]
QUINZIÈMEAUDIENCEPUBLIQUE(g IV 65, 10 h)
Présents: [Voir audience du 15 III 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
~L de VILLIERScontinue l'exposé reproduit en annexe 5 •
L'audience, suspendue à II h 20, est reprise à II h 40
6
~I. de VILLIERScontinue l'exposé reproduit en annexe •
L'audience est levéeà I2 h 55
[Signatures.]
SEIZIÈME AUDIENCEPUBLIQUE (12 IV 65, 15 h)
Présents: [Voir audience du rs III 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
M. de VILLIERScontinue l'exposé reproduit en annexe 7•
1 Voir p. 450-465.
2 Voir p. 465-481.
3 Voir p. 481-496.
4 Voir p. 496-soB.
5 Voir p. soB-523.
6 Voir p. 523-538.
7 Voir p. 538-553.I6 MINUTES
The Court adjoumed from 4.20 p.m. to 4-40 p.m.
1
Mr. de VILLIERScontinued the speech reproduced in the annex •
The Court rose at 5.50 p.m.
[Signatures.]
SEVENTEENTH PUBLICHEAIHNG (13 IV65, IO a.m.)
Present: [See hearing of IS III65. J udge Spiropoulos was absent.]
The PRESIDENTopened the hearing and announced that Judge Spi
ropoulos was indisposed and would not be sitting. He called upon Mr. de
Villiers.
2
Mr. de VILLIERScontinued the speech reproduced in the annex •
The Court adfourned from II.ZO a.m. to II.40 a.m.
Mr. de VILLIERScontinued the speech reproduced in the annex. 3
The Court rose at r2.55 p.m.
[Signatures.]
EIGHTEENTH PUBLICHEARING (14 IV65, IO a.m.)
Present: [See hearing of 15 III 65. Judges Winiarski and Spiropoulos
absent.]
The PRESIDENTopened the hearing and announced that Judge Spiro
poulos remained indisposed and would not be sitting. Judge Winiarski
was unable to sit, for persona! reasons. He called upon Mr. de Villiers.
Mr. de VILLIERSconcluded the speech reproduced in the annex 4•
The PRESIDENTcalled upon Mr. Grosskopf.
5
Mr. GROSSKOPF made the speech reproduced in the annex •
The PRESIDENTcalled upon Mr. de Villiers.
Mr. de VILLIERScommenced the speech reproduced in the annex 6•
The Court adjoumed from II.20 a.m. to II.40 a.m.
7
Mr. de VILLIERScontinued the speech reproduced in the annex •
The PRESIDENTannounced that a member of the Court desired to put
a question to the Parties, and called upon Judge Jessup.
Judge jESSUP asked bath counsel for the Applicants and counsel for
the Respondent to reply at sorneconvenient time to the following question:
"In the interpretation and application of Article 73 of the Char
ter of the United Nations, is South West Africa to be considered
one of those 'territories whose peoples have not yet attained a full
1
2See pp. 553-567.
3 See pp. 567-580.
4 See pp. 58o-594.
See pp. 594"595·
6 See pp. 596-6ro.
See pp. 6t r-612.
7See pp. 6!2-625. PROCÈS-VERBAUX !7
L'audience, suspendue à I6 h 20, est reprise à I6 h 40
M. de VILLIERScontinue l'exposéreproduit en annexe 1•
L'audience est levéeà I7 h 50
[Signattms.]
DIX-SEPTIÈME AUDIENCE PUBLIQUE (13 IV 6S, IO h)
Présents: [Voir audience du 15 rn 65. M. Spiropoulos, absent.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers. Il
annonce que M. Spiropoulos, souffrant, n'assistera pas à l'audience.
l\I. de VILLIERScontinue l'exposéreproduit en annexe •
L'audience, suspendue à II h 20, est reprise à II h 40
3
M. de VILLIERScontinue l'exposéreproduit en annexe •
L'audience est levéeà I2 h 55
[Signatures.]
DIX-HUITIÈME AUDIENCE PUBLIQUE {I4 IV 65, IO h)
Présents: [Voir audience du 15 m 65. MM. Winiarski et Spiropoulos,
absents.]
Le PRÉSIDENT ouvre l'audience et annonce que M. Spiropoulos, encore
souffrant, n'assistera pas à l'audience. M. Winiarski sera également em
pêchéde siéger,pour des motifs d'ordre personnel. Il donne la parole à
M. de Villiers.
M. de VILLIERStermine l'exposéreproduit en annexe 4•
Le PRÉSIDENTdonne la parole à M. Grosskopf.
M. GRossKOPFprononce l'exposéreproduit en annexe 5•
Le PRÉSIDENTdonne la parole à M. de Villiers. 6
M. de VILLIERScommence l'exposéreproduit en annexe .
L'audience, suspendue à II h 20, est reprise à II h 40
l'IIde VILLIERScontinue l'exposéreproduit en annexe 7•
Le PRÉSIDENTdéclare qu'un membre de la Cour désire poser une
question aux Parties et donne la parole à M. Jessup.
M. }ESSUPdemande aux conseils des demandeurs et du défendeur de
répondre, à un moment approprié, à la question suivante:
«.Aux fins de l'interprétation et de l'application de l'article 73
de la Charte des Nations Unies, le Sud-Ouest africain doit-il être
considéré comme l'un des «territoires dont les populations ne
2 Voir P· 553-557·
Voir p. 567-580.
3 Voir p. 58o-594.
• Voir p. 594-595·
3 Voir p. 596-610.
6 Voir p. 6II-612.
7 Voir p. 612-625.r8 MINUTES
measure of self-government' as this phrase is used in that article?"
The Court rose at I2.SS p.m.
[Signatures.}
NINETEENTH PUBLICHEARING (22 IV65, IO a.m.)
Present: [See hearing of rs III65. Judge Winiarski absent.]
The PRESIDENTopened the hearing and announced that Judge \Vi
niarski would not be sitting. He called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex 1•
The Court adjourned from II.20 a.m. to II45 a.m.
Mr. de VILLIERScontinued the speech reproduced in the annex 2•
The PRESIDENTannounced that Judge Koretsky desired to put a
question to the Respondent.
Judge KoRETSKYput the following question to the Respondent:
"If the Mandate for South West Africa lapsed on the termination
of the League of Nations, what, in Respondent's view, is now the
legal nature of the right of the Republic of South Africa to adminis
ter South West Africa?"
The PRESIDENTsaid that the Respondent would at the appropriate
time reply to the question put by Judge Koretsky.
The Court rose at I2.SO p.m.
[Signatures.]
TWENTIETH PUBLICHEARING (23 IV65, IO a.m.)
Present: [See hearing of rs III6s. Judge Winiarski absent.]
The PRESIDENTopened the hearing and announced that Judge \Vini
arski would not be sitting. He called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex 3.
The Cmtrt adjourned from II.20 a.m. to II.40 a.m.
4
Mr. de VILLIERScontinued the speech reproduced in the annex •
The PREsiDENTasked the Agent for the Applicants when he would
be prepared to proceed with the presentation of his views on the request
of the Respondent for inspection, if Mr. de Villiers concluded his speech
on 26 April.
Mr. GRoss stated that the Applicants would be prepared to proceed
on 27 April.
The PRESIDENTsaid that it was understood that after the presentation
of the Applicants' views on the request for inspection, the Respondent's
reply on this question would follow immediately or after a very brief ad-
1 See pp. 625-639.
2 See pp. 639·652.
3 See pp. 652-667.
• See pp. 667-68o. PROCÈSV - ERBAUX
s'administrent pas encore complètement elles-mêmes»au sens où
cette expression est employée dans ledit article?»
L'audience est leveéà 12h55
[Signatures. J
DIX-NEUVIÈME AUDIENCE PUBLIQUE (22 IV65, IO h)
Présents: [Voir audience du 15 III65. M. Winiarski, absent.]
Le PRÉSIDENTouvre l'audience et annonce que M. Winiarski n'assis
tera pas à l'audience. Il doiUle la parole à M. de Villiers.
M. de VILLIERScontinue l'exposéreproduit en annexe •
L'audience, suspendue à II h 20, est reprise à II h 45
M. de VILLIERScontinue l'exposéreproduit en annexe 2•
Le PRÉSIDENTannonce que M. Koretsky, juge, désireposer une ques
tion au défendeur.
M. KoRETSKYpose la question suivante au défendeur:
«Si le Mandat pour le Sud-Ouest africain est devenu caduc à la
dissolution de la Sociétédes Nations, quelle est maintenant, de
l'avis du défendeur, la nature juridique du droit de la République
sud-africaine à administrer le Sud-Ouest africain? >>
Le PRÉSIDENTdéclare que le défendeur répondra en temps opportun
à la question poséepar M. Koretsky.
L'audience est levéeà 12 h 50
[5ignatures.}
VINGTIÈMEAUDIENCE PUBLIQUE (23 IV65, IO h)
Présents: [Voir audience du 15 III 65. M. Winiarski, absent.]
Le PRÉSIDENTouvre l'audience et annonce que M. Winiarski n'assis
tera pas à l'audience. Il donne la parole à M. de Villiers.
M. de VILLIERScontinue l'exposéreproduit en annexe 3•
L'audience, suspendue à II h 20, est reprise àII h 40
M. de VILLIERScontinue l'exposéreproduit en annexe 4•
Le PRÉSIDENTdemande à l'agent des demandeurs quand il sera prêt
à exposer ses vues sur la requêtedu défendeur relative à une visite sur
les lieux, en supposant que M. de Villiers achève la plaidoirie le 26 avril.
M. GRoss déclare que les demandeurs pourront prendre la parole le
27 avril.
Le PRÉSIDENTdéclare qu'il est entendu que, lorsque les demandeurs
auront exposéleurs vues sur la requêterelative à une visite sur les lieux,
le défendeur leur répondra immédiatement ou après une très brève
1 Voir p.625·639.
2 Voir p.63g-6yz.
3 Voir p. 652·667.
• Voir p. b67-68o.20 MINUTES
journment. Thereafter the Agent for the Applicants would present his
views in reply on the legal issues.
The Comt rose at I245 p.m.
[Signatures.]
TWENTY-FIRSP TUBLICHEAIUNG (26 IV65, 3 p.m.)
Present: [See hearing of rs III 6s. Judge Winiarski, absent.]
The PRESIDENTopened the hearing and announced that Judge Wini
arski would not be present until28 April. He called upon Mr. de Villiers.
1
Mr. de VILLIERScontinued the speech reproduced in the annex •
The Court adjourned from 4.20 p.m. to 4.40 p.m.
Mr. de VILLIERSconcluded the speech reproduced in the annex 2•
The Court rose at 6.05 p.m.
[Signatures.}
TWENTY-SECONPD UBLICHEARING (27 IV65, IO a.m.)
Present: [See hearing of rs III6s. Judge Winiarski, absent.]
The PRESIDENTopened the hearing and called upon the Agent for the
Applicants to commence his reply to the request of the Respondent for
inspection.
Mr. GRoss began the speech reproduced in the annex 3.
The Court adjourned from II.20 a.m. to II-40 a.m.
4
Mr. GRoss continued the speech reproduced in the annex .
The Court rose at I p.m.
[Signatures.]
TWENTY-TlURP DUBLICHEARING (28 IV 65, IO.IS a.m.)
Present: [See hearing of rs III 6s.J
The PRESIDENTopened the hearing and called upon the Agent for the
Applicants. · 5
Mr. GRoss continued the speech reproduced in the annex .
The PRESIDENTannounced that a Member of the Court desired to put
a question to him as Agent for the Applicants, and called upon Judge
Sir Gerald Fitzmaurice.
Judge Sir Gerald FITZMAURICs Eaid that his question was directed to
enabling him to feel quite clear as to the position taken by the Appli
cants over the question of inspection and witnesses. It feil into two parts.
1 See pp. 68o-6g5.
zSee pp. 695-712.
3 See IX, pp. 1-18.
5 SeeIX, pp. r8-3r.
See IX, pp. 31-44. PROCÈS-VERBAUX 2I
interruption et qu'ensuite l'agent des demandeurs présentera sa réplique
orale sur les points de droit. .
L'audience est levéeà I2 h 45
[Signatures.]
VINGTET UNIÈMEAUDIENCE PUBLIQUE (26 IV6 ,515 h)
Présents: [Voir audience du 15 III 65. M. Winiarski, absent.]
Le PRÉSIDENTouvre l'audience et annonce que M. Winiarski sera
absent jusqu'au 28 avril. Il donne la parole à M. de Villiers.
M. de VILLIERScontinue l'exposéreproduit en annexe •
L'audience, suspendue à I6 h 20, est reprise àr6 h 40
M. de VILLIERStermine l'exposéreproduit en annexe 2•
L'audience est levéeà r8 h 5
[Signatures.]
VINGT-DEUXIÈME AUDIENCE PUBLIQUE (2J IV 65, IO h)
Présents: [Voir audience du rs III 65. M. Winiarski, absent.]
Le PRÉSIDENTouvre l'audience et invite l'agent des demandeurs à
présenter sa réponse à la requête du défendeur relative à une visite sur
les lieux.
M. GRoss commence l'exposéreproduit en annexe 3•
L'audience, suspendue à II h 20, est reprise à II h 40
4
M. GRoss continue l'exposéreproduit en annexe •
L'audience est levéeà I3 h
[Signatures.}
VINGT-TROISIÈMA EUDIENCE PUBLIQUE (28 IV65, IO h 15)
Présents: [Voir audience du 15 III 65.)
Le PRÉSIDENTouvre l'audience et donne la parole à l'agent des de
mandeurs. 5
M. GRoss continue l'exposéreproduit en annexe •
Le PRÉSIDENTannonce qu'un membre de la Cour désire poser une
question à l'agent des demandeurs et donne la parole à sir Gerald Fitz
maurice.
Sir Gerald FITZMAURICE déclare qu'il désire se faire une idée très
précise de la position des demandeurs quant à la visite sur les lieux et
quant aux auditions des témoins. La question qu'il posera en consé
quence se divise en deux parties:
1 Voir p. 68o-695·
2 Voir p.695-712.
3 Voir IX, p. 3-18.
• Voir IX, p. 18-3r.
' Voir IX, p.31-44.22 MINUTES
I. Was the Applicants' contention about apartheid to be under
stood in the sense that a policy of group differentiation was in ali
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
Terri tory?
2. If the Applicants' contention did not go so far as that, and
if theremight be circumstances in which measures of group differen
tiation might have sorne justification, would the Applicants still
wish to maintain that an investigation of the factual situation, by
hearing evidence or by local inspection, would be wholly super
fluons?
The PRESIDENTasked Mr. Gross for clarification on a point in relation
to Submissions 3 and 4 in the MemoriaL Submission 3 was that the Court
should adjudge and declare that the Respondent:
"in the respects set forth in Chapter V of this Memorial and sum
marized in paragraphs I8g and rgo thereof, bas practised apartheid,
i.e. has distinguished as to race, color, national or tribal origin in
establishing the rights and duties of the inhabitants of the Terri
tory; [and] that such practice is in violation ... "
of the obligations of Article 2 of the Mandate. Submission 4 was that the
Court should adjudge and declare that the Respondent:
"by virtue of the economie, political, social and educational policies
applied within the Territory, which are described in detail in Chap
ter V ... and summarized at paragraph Igo"
not summarized in paragraphs I8g and Igo
"bas failed to promote to the utmost the material and moral well
being and social progress of the inhabitants ... "
What was the distinction between the one and the other?
The Court adjourned from II.2o a.m. to II.45 a.m.
1
Mr. GRoss concluded the speech reproduced in the annex •
The PRESIDENTsaid that his enquiry had been directed to the phase
of the proceedings concerning the question on inspection, and he would
be grateful if Mr. Gross would give his answer to it before that phase
was concluded. He asked the Agent for the Respondent whether he would
be prepared to proceed on the following moming.
Dr. VERLORENVANTl:IEMAAT said that before replying in detail to
the speech made by the Agent for the Applicants, the Respondent would
wish to have an opportunity of studying the verbatim record, which
would require an adjoumment until30 April. He asked if Mr. de Villiers
might be allowed to make a short general statement in respect of the
inspection and the need for an adjournment until 30 April.
The PRESIDENTcalled upon Mr. de Villiers.
Mr. de VILLIERSmade the speech reproduced in the annex 2•
The PRESIDENTsaid that he expected that when Mr. Gross replied
1 See IX, pp. 44"53·
2 See IX, PP· 54·55· PROCÈS-VERBAUX
23
«I. L'allégation des demandeurs concernant l'apartheid doit-elle
êtreentendue comme signifiant qu'une politique de différenciation
entre les groupes est en toutes circonstances, nécessairement et en
soi contraire à l'article z du Mandat, quelles que soient les autres
mesures prises par le Mandataire en vue d'accroître le bien-êtredes
habitants du territoire sous Mandat?
2. Si l'allégation des demandeurs n'allait pas jusque-là et s'il y
avait des circonstances dans lesquelles des mesures de différencia
tion entre les groupes seraient à certains égards justifiées, les de
mandeurs voudraient-ils encore; soutenir qu'une enquête sur la si
tuation de fait par voie d'audition des témoins ou de visite sur les
lieux serait tout à fait superflue?»
Le PRÉSIDENTdemande à M. Gross des éclaircissements sur les con
clusions n° 3 et 4 des mémoires. Par la conclusion n° 3, il est demandé
à la Cour de dire et juger que le défendeur:
«dans toutes les circonstances exposées au chapitre V du présent
mémoireet résuméesdans les paragrar.hes r8g et rgo dudit mémoire,
a pratiqué l'apartheid, c'est-à-dire qu [il] a établi une discrimination
fondée sur la race,la couleur,l'origine nationale ou tribale, lorsqu'[il]
a fixéles droits et devoirs des habitants du Territoire; [et] que cette
pratique constitue une violation [des obligations de l'article 2 du
Mandat] n.
Par la conclusion n° 4, il est demandé à la Cour de dire et juger que le
défendeur:
«par l'effet des principes économiques, politiques, sociaux et édu
catifs appliqués dans le Territoire et décrits en détail au chapitre V
... puis résumésau paragraphe rgo [et non plus aux paragraphes
r8g et rgo] ... n'a pas accru par tous le moyens en son pouvoir le
bien-êtrematériel et moral ainsi que le progrès social des habitants».
Quelle distinction convient-il de faire entre ces deux conclusions?
L'audience, suspendue à II h 20, est reprise àII h 45·
1
M. GRoss termine l'exposéreproduit en annexe .
Le PRÉsiDENTsouligne que sa question entre dans le cadre de la
présente phase de la procédure, relative à la visite sur les lieux, et qu'il
serait reconnaissant à M. Gross de lui répondre avant la fin de cette
phase. n demande à l'agent du défendeur s'il est prêt à reprendre la
parole le lendemain matin.
M. VERLOREN VANTHEMAAT déclare que, avant de répondre en détail
à l'exposé de l'agent des demandeurs, le défendeur souhaiterait avoir la
possibilité d'étudier le compte rendu intégral de la présente audience, ce
qui rendrait nécessaire d'ajourner les audiences jusqu'au 30 avril. Il
demande que M. de Villiers soit autorisé à faire une brève déclaration
d'ordre généralsur la visite sur les lieux et sur la nécessitéde renvoyer
la suite des audiences au 30 avril.
Le PRÉSIDENTdonne la parole à M. de Villiers.
M. de VILLIERSprononce l'exposéreproduit en annexe 2•
Le PRÉSIDENTcompte qu'en répondant à sa question relative aux
1 Voir IX, p. H-53·
2 Voir IX, p.54-55.24 MINUTES
to his enquiry in relation to Submissions 3 and 4 in the Memorial, re
plies would be forthcoming to the questions whlch had been raised by
Mr. de Villiers. As he had understood the Applicants they had said
that apartheid, that was to say, distinguishing asto race, colour, national
or tribal origin in relation to the rights, duties and status of individuals
was, per se and in itself, a breach of the Mandate. That was why he had
asked the Applicants whether Submission 4 in the Memorial was in any
way different to Submission 3, and if soin what respect. He called upon
Mr. de ViJiiers.
Mr. de VILLIERSsaid that an adjournment had been requested until
30 April to enable Respondent to study the verbatim record carefully;
the following afternoon was another possibility. ·
The PRESIDENT said that he had hoped that Mr. de Villiers would have
been prepared to proceed on the following moming, but if a Party said
that it was unable to proceed and requested an adjourrunent, then he
thought the Court would be prepared to accede to the request. He
called upon the Agent for the Applicants.
Mr. GROSSmade the speech reproduced in the annex 1.
The PRESIDENT,addressing Mr. Gross, said that it was important for
the determination of the future procedure in the case and of the very
issue which the Court was now called upon to decide, namely whether
it should accede to the request for an inspection, that it should have
made clear toit what was in issue on the point whlch had been raised
by himself arising out of the Applicants' Submissions 3 and 4 in the Me
morial. Was there any dispute now that the case turned solely, from the
Applicants' point of view, upon the issue whether differentiation or dis
crimination as to race, colour, national or tribal origin, had been prac
tised by the Respondent in establishing the rights and duties and status
of the inhabitants of the Territory through its policy of apartheid, and
that that was the sole basis upon which the Applicants rested their
case that there had been a breach of Article 2 of the Mandate? Or was
there an alternative basis upon whlch they sought to make out their
case, namely that irrespective of any such differentiation or discrimi
nation, by its policies of administration in fact applied by the Respon
dent in the various economie, political, social and educational fields it
had failed to promote to the utmost the material and moral wcll-being
and social progress of the inhabitants. If that could be clarified, it might
weil be that a great deal of the evidence foreshadowed by the Respon
dent might become unnecessary.
Mr. GRoss said that he would endeavour to attempt a reply to the
question and asked when the President desired this to be done.
The PRESIDENTsaid that while he was very reluctant that the Court
should Jose a day's sitting, it was not easy to readjust the programme
to meet in the afternoon, and it would adjourn until ro a.m. on 30 April.
At that time it would be of assistance to the Court if Mr. Gross gave the
clarification which he bad asked for before he called upon Counsel for
the Respondent.
The Court rose at I p.m.
[Signatures.]
1 See IX,pp. 56-58. PROCÈS- VERBAUX 25
8
conclusions n° 3 et 4 des mémoires M. Gross répondra aux questions
soulevées par M.de Villiers. Si le Président a bien compris les demandeurs,
ils ont déclaréque l'apartheid, c'est-à-dire la distinction fondée sur la
race, la couleur, l'origme nationale ou tribale quant aux droits, aux de
voirs et au statut des personnes, constitue en soi une violation du Man
dat. C'est pourquoi il a invité les demandeurs à dire si la conclusion n° 4
de leurs mémoiresdiffèrede la conclusion n° 3 et, si oui, en quoi. Il donne
la parole à M. de Villiers.
M. de VILLIERSindique que, si un ajournement a étédemandé jus
qu'au 30 avril, c'est pour permettre au défendeur d'examiner attentive
ment le compte rendu de l'audience. On pourrait aussi envisager de
tenir une audience le lendemain après-midi.
Le PRÉSIDENTdéclare qu'il avait espéréque M. de Villiers serait prêt
à plaider dès le lendemain matin mais que, lorsqu'une partie déclare
qu'elle n'est pas en mesure de plaider et demande un ajournement, la
Cour ne peut qu'accueillir favorablement sa demande. Il donne la parole
à l'agent des demandeurs.
M. GRoss prononce l'exposéreproduit en annexe 1•
Le PRÉSIDENT indique à M. Gross qu'ilimporte, pour fixer la procédure
ultérieure et pour résoudre le problème qui se pose présentement à la
Cour et qui est de savoir si elle doit faire droit à la requête relative à
une visite sur les lieux, d'obtenir une réponse claire à la question que le
Président a poséeau sujet des conclusions nos 3 et 4 des mémoires des
demandeurs, Est-il maintenant contesté que l'affaire consiste exclusive
ment pour les demandeurs à déterminer si une différenciation ou une
discrimination fondéesur la race, la couleur, l'origine nationale ou tri
bale a étépratiquée par le défendeur, dans le cadre de sa politique d'apart
heid, pour établir les droits, les devoirs et le statut des habitants dn
Territoire et que c'est là le seul motif sur lequel les demandeurs s'ap
puient pour prétendre qu'il y a eu violation de l'article 2 du Mandat?
Ou bien les demandeurs se fondent-ils sur un autre motif, à savoir que,
indépendamment de cette différenciation ou discrimination, le défendeUr,
par l'effet de sa politique administrative en matière économique, poli
tique, sociale et éducative, n'a pas accru par tous les moyens en son
pouv:oir le bien-être ainsi que le progrès social des habitants. Si cela
pouvait êtreéclairci, une grande part des moyens de preuve annoncés
par le défendeur pourrait se révélerinutile.
M. GRoss déclarequ'il s'efforcera de répondre à la question et demande
quand le Président l'invitera à le faire.
Le PRÉSIDÈNTdéclare qu'il hésite beaucoup à faire perdre un jour à
la Cour mais qu'il n'est pas facile de modifier son horaire et de la faire
siéger dans l'après-midi; les audiences sont donc suspendues jusqu'au
30 avril à ro h. Il sera alors utile à la Cour que, avant que le défendeur
prenne la parole, M. Gross donne les éclaircissements qui lui ont été
demandés.
L'audience est levéeà IJ h
[Signatures.]
1
Voir IX, p. 56-58. MINUTES
TWENTY-FOURTP HUBLICHEAIUNG (30 IV65, IO a.m.)
Present: [See hearing of 15 III65.]
The PRESIDENTopened the hearing and called upon the Agent for the
Applicants. ·
1
Mr. GRoss made the speech reproduced in the annex •
The PRESIDENTcalled upon Mr. de Villiers to reply on the issue of the
request for inspection.
Mr. de VILLIERSasked for thirty minutes adjoumment to enable him
to confer with his colleagues on the position, which might have been
quite dramatically affected by the statement which had just been made,
though whether this had gone far enough to achieve complete clarity
was another question. After consultation he might be able to shorten
considerably what he had otherwise intended to say.
The Court adjourned from I0.45 a.m. tf!II.JO a.m.
The PRESIDENTcalled upon Mr. de Villiers.
Mr. de VILLIERSmade the speech reproduced in the annex 2•
The Court rose atI p.m.
[Signatures.]
TWENTY-FIFTH PUBLICHEARING {3V 65, 3 p.m.)
Present: [See hearing of 15 III65.]
The PRESIDENTopened the hearing and, at the request of the Appli
cants and there being no objection on the part of the Respondent,
called upon the Agent for the Applicants. 3
Mr. GRoss made the speech reproduced in the annex •
The PRESIDENTcalled upon Mr. de Villiers.
Mr. de VILLIERSbegan the speech reproduced in the annex 4•
The Court adjourned from 4.20 p.m. to 4.40 p.m.
5
Mr. de VILLIERScontinued the speech reproduced in the annex •
The Court rose at 6 p.m.
[Signatures.]
TWENTY-SIXTH PUBLICHEARING (4 V 65, IO a.m.)
Present: [See hearing of 15 m 65.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERSconcluded the speech reproduced in the annex 6•
l See IX, pp. 58-65.
2 See IX, pp. 66-82.
3
See IX, pp. 83-93.
• See IX, pp. 94-99·
' See IX, pp. 99-114.
6 See IX, pp. rq-r21. PROCÈS-VERBAUX 27
VINGT-QUATRIÈMA EUDIENCE PUBLIQUE (3o IV65, 10 h)
Présents: [Voir audience du 15 UI 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à l'agent des de
mandeurs.
1
M. GROSSprononce l'exposéreproduit en annexe •
Le PRÉSIDENTinvite M. de Villiers à prononcer sa réplique sur la
question de la requêterelative à une visite sur les lieux.
M. de VILLIERSdemande une suspension d'audience de trente minu
tes en vue de pouvoir consulter ses collègues; il se peut en effet que
l'exposé qui vient d'être prononcé ait des conséquences considérables
sur la situation, bien que ce soit une autre question de savoir si la clarté
est totale. Après avoir consulté ses collègues, M. de Villiers pourrait
êtreen mesme de raccourdr considérablement ce qu'il avah l'intention
de dire.
L'audience, suspendtte à IO h 45, est reprise à II h 30
Le PRÉSIDENTdonne la parole à M. de Villiers.
M. de VILLIERSprononce J'exposéreproduit en annexe 2•
L'audience est levéeà IJ h
[Signatures.]
VINGT-CINQUIÈMA EUDIENCE PUBLIQUE (3 V65, 15 h)
Présents: [Voir audience du rs III 6s.J
Le PRÉSIDENTouvre l'audience. A la requête des demandeurs et en
J'absence d'objection de Ja part du défendeur, iJ donne la parole à
l'agent des demandeurs.
M. GROSsfait l'exposéreproduit en annexe 3•
Le PRÉSIDENTdonne la parole à M. de Villiers.
4
M. de VILLIERScommence l'exposéreproduit en annexe •
L'audience, suspendue à r6 h 20, est reprise à I6 h 40
M. de VILLIERScontinue l'exposéreproduit en annexe 5•
L'audience est levéeà I8 h
[Signatures.]
VINGT-SIXIÈME AUDIENCE PUBLIQUE (4 V65, IO h)
Présents: [Voir audience du 15 III 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
M. de VILLIERStermine l'exposéreproduit en annexe 6•
1 Voir IX, p.58-65.
2 Voir IX, p. 66-82.
3 Voir IX, p.83-93.
• Voir IX, p.94-99.
5 Voir IX, p. gg-rq.
6 Voir IX, p.rr4-I2I.28 MINUTES
The PRESIDENT,having ascertained that there was no objection on
the part of the Respondent, called upon the Agent for the Applicants,
who had indicated his desire to make a very short statement.
1
Mr. GRoss made the speech reproduced in the annex .
The PRESIDENTsaid that the Statute contemplated that parties
should be at liberty to present their case in their own way, including
the calling of witnesses. Could the Agent for the Applicants, without
argument, indicate any provision of the Statute or the Rules which
would empower the Court to deal with the matter in the terms which he
had proposed.
Mr. GRoss said that he could not. He had searched the Rules, and had
found no precedent because the situation was unprecedented. No such
proposai bad ever been placed before the Court for exercise of its inherent
power of judicial discretion in the light of what, he respectfully submit
ted, was the exercise of judicial administration to meet the situation.
He relied upon the inherent power of the Court and the inherent nature
of the judicial process with respect to the administration of the Court.
That was the basis of his submission.
The PRESIDENTasked whether the Respondent desired to make any
comment.
Mr. de VILLIERSsaid that there was one factor of convenience that
also weighed the other way; South Africa was preparing to be ready to
present oral evidence to the Court, but the nature of the task of pre
paring instead what might be voluminous further written material to
present to the Court was also surely a factor to be taken into account
in the circumstances.
The PRESIDENTasked the Agent for the Applicants when he would be
:prepared to proceed with the presentation of his reply upon the legal
ISSUeS.
Mr. GROSSrcquested an adjournment until the morning of 7 May.
The PRES_IDENs Taid that he would have hoped that Mr. Gross could
have proceeded on 6 May. However, if counsel indicated that he was
unable to proceed until 7 May, the Court would adjoum until then.
The Court rose at II a.m.
[Signatures.}
TWENTY-SEVENTPH UBLICHEARING (7V 65, IO a.m.)
Present: [See hearing of rs III 65.]
The PRESIDENTopened the hearing and called upon the Agent for
the Applicants to commence the reply on the legal issues.
2
Mr. GROSSbegan the speech reproduced in the annex •
The Co-urtadjourned from II.20 a.m. to II.40 a.m.
Mr. GRoss continued the speech reproduced in the annex 3•
1 See IX, pp. 122-123.
2 See IX, pp. 124-140.
3 See IX, pp. 140·15I. PROCÈS-VERBAUX
Le PRÉSIDENT,après s'êtreassuré qu'aucune objection n'est soulevée
par le défendeur, donne la parole à l'agent des demandeurs qui a indiqué
son désir de faire une très brève déclaration. 1
111. Ross prononce l'exposéreproduit en annexe •
Le PRÉSIDENTpréciseque, d'après le Statut, les parties sont libres de
présenter leur thèse comme elles l'entendent et peuvent notamment
citer des témoins. L'agent des demandeurs pourrait-il, sans faire de
commentaires, indiquer une disposition du Statut ou du Règlement qui
autoriserait la Cour à traiter de cette question de la manière qu'il a
proposée?
111. Ross dit que cela ne lui est pas possible. Il a étudiéle Règlement
et n'a trouvé aucun précédent car la situation est sans précédent. La
Cour n'a jamais étésaisie d'une proposition de ce genre l'invitant à
exercer le pouvoir discrétionnaire qui lui appartient de façon inhérente
en matière judiciaire, compte tenu de ce que, d'après lui, une bonne
administration de la justice exige pour faire face à la situation. Il in
voque le pouvoir inhérent de la Cour et le caractère inhérent du processus
judiciaire en ce qui concerne l'administration de la Cour. Telle est la
base de sa proposition.
Le PRÉSIDENT demande au défendeurs'ila des observations à présenter.
M. de VILLIERSdéclare qu'il existe un élémentde commodité jouant
en sens opposé; l'Afrique du Sud se dispose à présenter à la Cour des
témoignages oraux mais la tâche consistant à préparer ce qui peut cons
tituer une documentation écrite volumineuse à l'intention de la Cour
est également de telle nature que l'on ne peut manquer de la prendre en
considération, en l'occurrence.
Le PRÉSIDENTdemande à l'agent des demandeurs quand il sera prêt
à poursuivre la présentation de sa réponse sur les questions de droit.
M. GRoss demande une suspension des audiences jusqu'au 7 mai au
matin.
Le PRÉSIDENTdit qu'il espérait que M. Gross pourrait continuer le
6 mai. Toutefois, le conseil indiquant qu'il n'est pas en mesure de pour
suivre avant le 7 mai, la Cour s'ajournera jusqu'à cette date.
L'audience est levéeà II h
[Signatures.)
VINGT-SEPTIÈME AUDIENCE PUBLIQUE (7 V65, IO h)
Présents: [Voir audience du r5 III 65.]
Le PRÉSIDENTouvre l'audience et invite l'agent des demandeurs à
présenter sa réplique sur les questions de droit.
M. GRoss commence l'exposéreproduit en annexe 2•
L'audùnce, suspendue à II h 20, est reprise à II h 40
3
M. GRoss continue l'exposéreproduit en annexe •
1 Voir IX,p. 122-123.
2 Voir IX,p. 124-140.
3 Voir IX,p. 140-151.30 MINUTES
The PRESIDENTcalled upon Judge Sir Gerald Fitzmaurice, who de
sired to put certain questions to the Parties.
Judge Sir Gerald FITZMAURICE put the following questions to the
Parties:
"Regarding that part of the case which relates to the interpreta
tion and application of Article 2 of the Mandate, both the Parties
have invoked certain general international norms, standards and
principles, of an a priori character, the existence or applicability of
which they either affirm or deny. Thus the Applicants have invoked
a norm said to prohibit absolutely any practices of apartheid, as
that term has been defined by the Applicants for the purposes of
the present case. Equally the Respondent seems to postulate an
inherent discretionary power in the Mandatory as to the methods
to be employed for implementing Article 2,and on that basis has
contended that the propriety of the measures concerned must be
assessed with reference to the underlying intentions of the Manda
tory.
It would be helpful if the Parties could attach their respective
contentions somewhat more closely to the actual text of Article 2,
and the following points in particular caU for further clarification:
(a) In relaf%'onto the posüion of the Applicants
I. Taking for granted the great importance of the humanitarian
and sociological considerations involved, but having regard to the
position of the Court as a court of law, what is the purely juridical
basis on which the Applicants contend that the 'non-apartheid norm'
amounts to an accepted rule of law, and whence does it derive its
obligatory force as such-for instance, does the application of this
norm form part of general State practice in such a way asto consti
tute a rule of customary international law; or in what other way is
the norm, considered as a legal norm, said to be derived?
2. Irrespective of the answer to be given to the preceding question,
isit contended that on the language of Article 2 itself, measures or
practices of apartheid, as defined by the Applicants, must necessarily
and in ali circumstances be illegitimate?
3. Is the criterion of compatability with the Mandate, or other
wise, to be found in the general or apparent character of the measure
or practice; and if so, is it contended that this suffices perse, oris
the criterion the actual results of the measure or practice concerned
and its concrete effects on the well-being and social progress of the
persans affected?
4. Are the Applicants in a position (and do they propose) to furnish
the Court with factual evidence (for instance by the personal
testimony of inhabitants of the mandated territory) showing what
have been the actual effects of the Mandatory's measures and
practices in individual cases?
(b) In Yelation to the position of the Respondent
5· Is it solely on a basis of general principle that the Respondent
daims for the Mandatory an absolute discretionary power to deter
mine for itself by what methods Article 2 of the Mandate shaH be PROCÈS- VERBAUX 3I
Le PRÉSIDENTdonne la parole à sir Gerald Fitzmaurice, qui désire
poser certaines questions aux Parties.
Sir Gerald FITZMAURICE pose aux Parties les questions suivantes:
«Pour ce qui est de l'élémentde l'affaire relatif à l'interpréta
tion et à l'application de l'artic2edu Mandat, les deux Parties ont
invoqué, sur un plan international général,certaines normes, cer
tains <<standardsn et certains principes ayant un caractère à priori,
et dont ils affirment ou nient l'existence ou l'applicabilité. Ainsi
les demandeurs ont invoqué une norme qui interdirait de façon
absolue les pratiques de l'apartheid au sens où ce terme a étédéfini
par les demandeurs aux fins de la présente instance. De la même
manière, le défendeur semble parti du postulat que le Mandataire
avait un pouvoir discrétionnaire inhérent quant aux méthodes à
employer pour mettre en Œuvre l'article 2 et, sur cette base, il a
soutenu que le caractère approprié des mesures en cause devait être
évaluépar référenceaux intentions dont le Mandataire était animé.
Il serait utile que les Parties relient leurs thèses respectives d'un
peu plus près au libellé mêmede l'article 2; les points suivants en
particulier appellent des éclaircissements:
a) Quant à la position des demandeurs
r. Etant admise la grande importance des considérations huma
nitaires et sociologiques en cause mais compte tenu de la position
de la Cour en tant que cour de justice, quelle est la base purement
juridique sur laquelle les demandeurs s'appuient pour soutenir que
la ((flormede non-apartheid ncorrespond à une règle de droit admise
et d'où tire-t-elle par suite sa force obligatoire en tant _quetelle?
L'application de cette norme fait-elle par exemple partie de la pra
tique généraledes Etats de sorte qu'elle constitue une règle de droit
internationalcoutumier ou de quelle autre manière dit-on que cette
norme, envisagée comme norme juridique, prend naissance?
2. Indépendamment de la réponse qui sera donnée à la question
,précédente, soutient-on que, eu égard au libellé de l'article 2 lui
même,des mesures ou des pratiques d'apartheid, au sens définipar
les demandeurs, doivent nécessairement et en toutes circonstances
êtreillégitimes?
3· Le critère de compatibilité ou d'incompatibilité avec le Man
dat résulte-t-il du caractère général ou apparent de la mesure ou de
la pratique? Si oui, soutient-on que cela seul suffit? Ou bien le
critère résulte-t-il des conséquences réelles de la mesure ou de la
pratique en cause et de ses effets concrets sur le bien-être et le
progrès social des personnes qu'elle concerne?
4· Les demandeurs sont-ils en mesure {et se proposent-ils) de
présenter à la Cour des preuves relatives aux faits (témoignages
personnels des habitants du territoire sous Mandat par exemple)
montrant quels ont étéles effets réels des mesures et des pratiques
adoptées par le Mandataire dans des cas individuels?
b) Quant à la position du défendeur
5· Est-ce uniquement sur la base d'un principe généralque le
défendeur reve~di pourele Mandataire un pouvoir discrétionnaire
absolu lui permettant de déterminer lui-mêmeles modalités de mise32 MINUTES
implemented-subject only to good faith and correct intentions?
or does the Respondent daim that a discretionary power of this
kind is to be derived from the language of Article 2 itself?
6. In so far as it is simply a matter of fact whether in any partic
ular respect there has been a breach of Article 2 or not, do the
intentions (good or bad) of the Mandatory have any relevance to
the question of whether a given practice constitutes a breach of
the Mandate; more especially, do the Mandatory'sgoodintentions have
any relevance, supposing it to be established as a fact that the
practice is injurions to, or incompatible with, well-being and social
progress?
7· The Respondent has contended that, on the correct interpre
tation of Article 2, the Mandatory's obligation does not extend
beyond endeavouring honestly and in good faith to carry out the
Article according toits own judgment of what is required for that
purpose. Admitting that the Mandatory must possess a certain
latitude,can there be more than an initial presumption in its favour?
Suppose a prima facie case were made out for the view that certain
measures instituted by the Mandatory werc in fact detrimental to
well-being or social progress-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 Respon
dent 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?
(c) In relation to the position of both Parties
8. There are certain differences between the English and French
texts of Article 2 of the Mandate. Instead of 'shall promote' ('pro
mouvoir', 'favoriser'), the French text says 'accroîtra' (shaH in
crease well-being, etc.). Instead of shall promotc 'to the utmost'
('au plus haut point'), the French text says 'par tous les moyens en
son pouvoir' ('by ail the means in its power' or 'by all available
means'). What significance do the Parties respective! y attach to
these differences? \Vhat is the resultant of the combined texts, as a
matter of legal interpretation?
g. Suppose that certain measures instituted by the Mandatory
have had a beneficiai effect, but that others have not: in these
circumstances, would it be correct to say that if, on balance, there
has been a promotion of or increase in the sum total of weii-being
and social progress viewed as a whole, then the provisions of the
Mandate have been complied with, or would it be correct to say
that irrespective of any total increase in well-being, and even if
there has been such an increase, any particular measures which are,
or prove to be, detrimental, constitute pro tanto a breach of the
Mandate?
ro. And last, Article 2 of the Mandate provides not only (by its
second paragraph) for the promotion (or increase) of the well-being
and sacral progress of the inhabitants, but also (by its first paragraph)
that the Mandatory is to have 'full power of administration and
legislation over the mandated territory' as an 'integral portion' of PROCÈS-VERBAUX 33
en Œuvre de l'article 2 du Mandat sous réserve seulement de la
bonne foi et d'intentions légitimes? Ou bien le défendeur prétend-il
qu'un pouvoir discrétionnaire de ce genre procède du libellé de
l'article2 lui-même?
6. Dans la mesure où la question de savoir si, sur un point par
ticulier quelconque, il y a eu ou non violation de l'article 2 est
simplement une question de fait, les intentions du Mandataire
(bonnes ou mauvaises) sont-elles pertinentes s'agissant de savoir si
une certaine pratique constitue une violation du Mandat? Plus
particulièrement, les bonnes intentions du Mandataire sont-elles
pertinentes si l'on suppose prouvé en fait que la pratique est nuisible
au bien-être ou au progrès social ou incompatible avec eux?
7- Le défendeur a soutenu que, si l'on interprète correctement
l'article2, J'obligation du Mandataire ne consiste pas à faire plus
qu'essayer honnêtement et de bonne foi d'appliquer l'article de la
manière dont, d'après lui, il est nécessaire de le faire. Etant admis
que le Mandataire doit avoir une certaine latitude, peut-il y avoir
plus qu'une présomption initiale en sa faveur? A supposer que l'on
puisse montrer prima facie que certaines mesures adoptées par le
Mandataire ont étéen fait préjudiciables au bien-être ou au progrès
social, le défendeur continuerait-il à soutenir que la Cour n'a pas
compétence pour apprécier la question ou pour se prononcer sur
elle, sauf sur la base de la bonne ou mauvaise foi du Mandataire et
compte tenu de la nature des objectifs et des intentions du Man
dataire? Ou bien le défendeur serait-il disposé à admettre que, eu
égard au libelléde l'article 2,il doit, dans ce cas, réfuter sur le fond
les allégations formulées?
c) Quant aux positions des deux Parties
8. Il existe certaines différences entre les textes français et anglais
de l'article2 du Mandat. Au lieu de 11Shallpromote n (11promouvoir n,
davoriser n),le texte français dit rraccroîtra n.Au lieu de dire rrto
the utmost n (reau plus haut point n). le texte français dit «par tous
les moyens en son pouvoir n.Quelle importance les Parties attachent
elles respectivement à ces différences? Quelle est la résultante des
textes combinés, pour ce qui est de l'interprétation en droit?
g. A supposer que certaines mesures adoptées par le Mandataire
aient eu des effets heureux mais que cela n'ait pas étéle cas de
toutes: dans ces conditions, serait-on fondé à dire que si, tout bien
posé,le bien-être et le progrès social envisagés dans leur ensemble
se sont au total accrus, les dispositions du Mandat ont étérespectées?
Ou bien serait-on fondé à dire que, indépendamment de tout ac
croissement total sur le plan du bien-être, et mêmes'il y a bien eu
accroissement, toute mesure préjudiciable ou se révélant préjudi
ciable constitue en tant que telle une violation du Mandat?
IO. L'article 2 du Mandat ne prévoit pas seulement dans son
deuxième alinéa l'accroissement (ou l'amélioration) du bien-être et
du progrès social des habitants; il dispose aussi, dans son premier
alinéa, que le Mandataire «aura pleins pouvoirs d'administration et
de législation sur le territoire faisant l'objet du Mandat n, que ce34 MINUTES
its own territory, and may apply its own laws 'subject to such local
modifications as circumstances may require'. What do the Parties
respectively 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 soin what sense and to what extent? If not, and if the two
clauses are independent of one another, what is the resulting legal
situation?"
The Court ros at;I2.45 p.m.
[Signatures.}
TWENTY·EIGHTP HUBLICHEARING (ro V 65, 3 p.m.)
Present: [See hearing of rs III6s.J
The PRESIDENTopened the hearing and called upon the Agent for the
Applicants.
1
Mr. GRoss continued the speech reproduced in the annex •
The Court adjourned from 4.20 p.m. to 4.40 p.m.
Mr. GROSScontinued the speech reproduced in the annex 2 •
The Court rose at 6 p.m.
[Signatures.]
TWENTY-NINTP HUBLICHEARING (II V 65, IO a.m.)
Present: [See hearing of rs III6s.J
The PRESIDENTopened the hearing and called upon the Agent for
the Applicants.
Mr. GROSScontinuerl the speech reproduced in the annex 3•
The Co-urtadjourned from u.20 a.m. to II.40 a.m.
Mr. GROSScontinued the speech reproduced in the annex ~.
The Court rose at I2.55 p.m.
[Signatures.}
THIRTIETH PUBLICHEARING (12 V 65, IO a.m.)
Present: [See hearing of 15 III65.]
The PRESIDENTopened the hearing and called upon the Agent for the
Applicants.
1 See IX, pp.15r-r67.
3 See IX, pp.167-r84.
See IX, pp.I84·I99·
• See IX, pp.199·214. PROCÈS-VERBAUX
35
dernier sera administré ((commepartie intégrante de son territoire»
et que sa législation y sera appliquée <!Sousréservedes modifica
tions nécessitées par les conditions locales». Quel est, d'après
chacune des Parties, le rapport exact entre ces deux catégories de
dispositions? Aucune n'est expressément subordonnée à l'autre.
Doit-on cependant estimer qu'un lien de subordination existe et, si
oui, en quel sens et dans quelle mesure? Sinon et si les deux dispo
sitions sont indépendantes l'une de l'autre, quelle est la situation
qui en résulte en droit? n
L'audience est levéeà I2 h 45
[Signatures.]
VINGT-HUITIÈME AU_DIENCPE UBLIQUE (IO V65, 15 h)
Présents: [Voir audience du 15 III65.]
Le PRÉSIDENT ouvre l'audience et donne la parole à l'agent des deman
deurs.
M. GRoss continue l'exposéreproduit en annexe 1.
L'audience, suspendue à r6 h 20, est reprise à I6 h 40
M. GRoss continue l'exposéreproduit en annexe 2.
L'audience est levéeà I8 h
[Signatures.]
VINGT-NEUVIÈMA EUDIENCE PUBLIQUE (II V6 ,5 IO h}
f4.
. Présents: (Voir audience du I5 III 6s.J
Le PRÉSIDENTouvre l'audience et donne la parole à l'agent des de
mandeurs.
M. GRoss continue l'exposéreproduit en annexe 3.
L'audience, suspendue à II h 20, est reprise à II h 40
M. GRoss continue l'exposéreproduit en annexe 4•
L'audience est levéeà I2 h 55
[Signatures.]
TRENTIÈMEAUDIENCE PUBLIQUE (12 V65, 10 h)
Présents: [Voir audience du ::5 III 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à l'agent des deman
deurs.
1 Voir IX, p. 15I-r67.
• Voir IX, p.r67-184.
3 Voir JX, p. r84-199·
• Voir IX, p.rgy-214. MINUTES
1
Mr. GROSScontinued the speech reproduced in the annex •
The Court adjourned from II.ZO a.m. to II.40 a.m.
Mr. GRoss continued the speech reproduced in the annex 2•
The Court rose at I p.m.
[Signatures.]
THIRTY-FIRST PUBLICHEARING(13 V 65, IO a.m.)
Present: [See hearing of 15 III65.]
The PRESIDENTopened the hearing and called upon the Agent for
the Applicants.
3
Mr. GRoss continued the speech reproduced in the annex •
The Court adjourned from II.20 to II45 a.m.
4
Mr. GRoss continued the speech reproduced in the annex .
The PRESIDENTcalled upon Judge Sir Gerald Fitzmaurice to put to
the Parties certain questions.
Judge Sir Gerald FITZMAURICs Eaid that despite one of the answers
which Mr. Gross had been good enough to give to his questions, he would
like him to give a little further consideration to the status of the French
text to the Mandate. Although the Mandate had originally been drafted
in English and the French translation then made, both texts had then
been embodied respectively as the official English and French texts of
the resolution of the Council of the League, in which the Mandate bad
been adopted. At an early meeting of the Permanent Mandates Commis
sion it had been decided, as a working rule, to go on the English text
of British administered mandates, and on the French text of French
administered mandates. ln the light of that position, he thought that
the two texts had been, in practice, treated as being on the footing of
equality and that, consequently, any differences that might exist between
them were not wholly irrelevant.
He then put the following question:
"What, in the opinion of the Parties respectively, is the present
and potential objective legal position relative to the mandated
territory of the Powers which, at the end of the First World \Var,
came to be known as the Principal Allied and Associated Powers,
namely (in their then Fren'ch alphabetical order) the United States
of America, France, Great Britain, Italy and Japan? \Vhen these
Powers, in favour of whom sovereignty over the future mandated
territories was renounced under the Peace Treaties, consented to
the arrangements whereby the territories were placed under League
of Nations mandate, did they thereby divest themselves of ali
right, title and interest relative to the territories, or did they, as a
matter of law, retain a re~idu riaht of sovereignty or other right,
title or interest which would revive and become operative in the
event, for instance, of a dissolution of the League of Nations, or of
a termina tion of the mandate on a basis oUter than self-government
1 See IX, pp.214-229.
2 Sec IX, pp. 229-242.
l Sec IX, pp. 242-258.
+ See IX, pp. 258-268. PROCÈS-VERBAUX
37
M. GROSScontinue l'exposéreproduit en annexe 1• .
L'audience, suspendue à II h 20, est reprise à II h 40
M. GRoss continue l'exposéreproduit en annexe 2•
L'audience est levéeà IJ h
[Signatures.}
TRENTEETUNIÈMEAUDIENCE PUBLIQUE (1 V6S, 10 h)
3
Présents: [Voir audience du 15 III6s.J
Le PRÉSIDENT ouvre l'audience et donne la parole à l'agent des deman-
deurs. ·
M. GRoss continue l'exposéreproduit en annexe 3•
L'audience, suspendue à II h 20, est reprise à II h 45
M. GROSScontinue l'exposéreproduit en annexe 4•
Le PRÉSIDENTdonne la parole àsir Gerald Fitzmaurice en vue de poser
certaines questions aux Parties.
Sir Gerald FITZMAURICE déclare qu'en dépit de l'une des réponses
que M. Gross a bien voulu faire à ses questions il désirerait que celui-ci
examine plus attentivement la question du statut du texte français
du Mandat. Le Mandat a étéprimitivement rédigéen anglais pour être
ensuite traduit en français mais les deux textes ont étéinclus dans les
textes officiels français et anglais de la résolution du Conseil de la Société
des Nations par laquelle le Mandat a étéadopté. A l'une des premières
réunions de la Commission permanente des Mandats, il a étédécidé
comme règle de travail d'utiliser le texte anglais pour les pays sous
Mandat britannique et le texte français pour les pays sous Mandat
français. Il semble dans ces conditions que les deux textes aient étéen
pratique traités sur un pied d'égalitéet que par conséquent les différences
qui pourraient exister entre eux ne sauraient êtreconsidéréescomme
totalement sans pertinence.
Sir Gerald Fitzmaurice pose ensuite la question suivante:
«Quelle est, de l'avis des Parties, la situation objective actuelle
et virtuelle sur le plan du droit en ce qui concerne les territoires
sous Mandat des Puissances qui, à la fm de la première guerre mon
diale, ont étédésignéessous le nom de Principales Puissances alliéeset
associées, à savoir (dans l'ordre alphabétique français de l'époque),
les Etats-Unis d'Amérique, la France, la Grande-Bretagne, l'Italie
et le Japon? Lorsque ces Puissances, en faveur desquelles il a été
renoncé à la souveraineté sur les futurs territoires sous Mandat en
vertu des traités de paix, ont accepté les arrangements consistant à
placer lesdits territoires sous le Mandat de la Sociétédes Nations,
ont-elles par là mêmerenoncé à tout droit, titre ou intérêtsur ces
territoires ou bien ont-elles, sur le plan juridique, conservéun droit
résiduel de souveraineté ou un autre droit, titre ou intérêtpouvant
renaître et reprendre effet dans l'hypothèse, par exemple, d'une
dissolution de la S.d.N. ou d'une cessation du Mandat résultant
1 Voir IX, p.214-229.
2 Voir tx, p.229-242.
3 Voir IX, p.242-258.
4 Voir IX, p.258-268. MINUTES
or independence for the territory concerned-and, if so, what is the
nature and extent of such right, title or interest and how may it
operate?" .
The PRESIDENT addressed to the Parties a request, in the following
terms, in relation to a question already put by a 1\Iember of the Court:
"In relation to the description of territories to which Article 73
of the Charter is stated to apply, namely 'territories whose peoples
have not yet attained a full measure of self-government', and the
question whether that Article was or was not intended to
or did not include territories then held under Mandate, and the
important question directed to both Parties by Judge jessup on
these issues, 1 would be gratefulif both Parties would give consider
ation to certain facts, nine in number, stated hereafter (if they are
admitted to be correctly stated as facts) in the response they make
to Judge jessup's question. 1 am not aware that these facts have
yet, in these proceedings, received the consideration of the Parties.
I. The fact that the discussion in Committee 4 of Commission II
at San Francisco was based not upon the paper presented by any
one State, but upon a working paper prepared after study and
consultation on proposais made by a number of States, divided into
two sections, namely A. General Policy, and B. Territorial Trustee
System.
2. The fact that in this working paper, dated 15 May 1945
(Doc. 323/Il/4/12, U.N.C.I.O., Vol. 10, p. 677), the description of
territories to which the declaration subsequently to be incorporated
in Article 73 was intended to apply then read in the proposed draft
Article as follows: 'Territories inhabited by peoples not yet able to
stand by themselves under the strenuous conditions of the modem
world' which are the precise words used in Article 22 (r)of the
Covenant of the League to describe the mandated territones.
3. The fact that this text in the working paper remained un
changed up to 9 June 1945 (U.N.C.I.O., Vol. 10, p. 525).
4· The fact that between 9 and II june 1945, that text was
changed to read as it now appears in Article 73 of the Charter
(ibid., p. 533), the reason for the alteration being stated in the
Report of the Rapporteur of Committee IV of 20 June 1945 (ibid.,
p. 6oS) to have been 'to find new language more suitable to existing
conditions than the language employed in Paragraph r of Article 22
of the Covenant of the League of Nations' in order to describe 'the
territories to which the declaration relates'.
s. The fact that the Rapporteur of Committee Il/4 stated in his
said Report of 20 June 1945, that the declaration contained in the
text of Article 73 as finally approved (Annex A thereto) 'would be
applicable to all such territories' and to all 'States Members of the
United Nations having responsibilities for the administration of
territories whose people have not yet attained a full measure of
self-govemment'. (U.N.C.I.O., Vol. 10, p. 6oS). PROCÈS· VERBAUX 39
d'un autre facteur que l'autodétermination ou l'indépendance des
territoires en question et, dans l'affirmative, quelles sont la nature
et la portée de ce droit, titre ou intérêtet comment ce droit, titre
ou intérêtpeut-il jouer?»
Le PRÉSIDENTadresse aux Parties, au sujet d'une question déjàposée
par un membre de la Cour, la demande suivante:
1lEn ce qui concerne la description des territoires que l'article
73 de la Charte vise expressément, à savoir les «territoires dont
les populations ne s'administrent pas encore complètement elles
mêmes n,en ce qui concerne aussi la question de savoir si cet article
avait trait ou non, s'il s'appliquait ou non aux territoires alors sous
Mandat ainsi que la question importante adressée aux deux Parties
par M. Jessup sur ces points, je serais reconnaissant aux deux
Parties de bien vouloir prendre en considération certains faits -
au nombre de neuf - que je vais indiquer (s'il est admis que ces
faits sont exactement énoncés)dans la réponse qu'elles feront à
M. Jessup. Je ne sache pas que ces faits aient déjà fait l'objet d'un
examen de la part des Parties au cours de la présente procédure.
L La discussion qui s'est dérouléeau Comité4 de la Commission II
àSan Francisco avait pour base non pas un document présentépar
un Etat donné,mais un document de travail préparéaprès des études
et des consultations à partir des propositions faites par un certain
nombre d'Etats; il était divisé en deux sections: la section A con·
cernait la politique généraleet la section B le régimede tutelle terri
toriale.
2. Dans ce document de travail qui porte la date du 15 mai 1945
(doc. 323/II/4/12, U.N.C.LO., vol. 10, p. 684) les territoires aux
quels la déclaration incorporée plus tard dans l'article 73 devait
s'appliquer étaient décrits de la manière suivante {projet d'article):
«territoires habités par des populations qui ne sont pas encore
capables de mener une existence indépendante dans les conditions
difficilesu monde moderne»; ce sont là les termes mêmesqui sont
employés [en anglais] au paragraphe 1 de l'article 22 du Pacte de la
Sociétédes Nations pour décrireles territoires sous Mandat.
3· Le texte du document de travail est resté inchangé jusqu'au
9 juin 1945 (ibid., p. 529).
4· Entre le 9 et le II juin 1945, ce texte a étémodifiéet a pris la
forme sous laquelle il se présentemaintenant dans l'article 73 de la
Charte (ibid., p. 537); cette modification a étéfaite, d'après le
rapport du rapporteur du Comité4 en date du 20 juin 1945, parce
qu'il était souhaitable, s'agissant de définir «lesterritoires auxquels
s'applique cette déclaration» 1td'employer des termes nouveaux,
mieux adaptés aux conditions actuelles, que les termes employés
au paragraphe 1 de l'article 22 du Pacte de la Sociétédes Nations»
(ibid., p. 624)-
5- Le rapporteur du Comité4 de la Commission II a précisédans
ledit rapport du 20 juin 1945 que la déclaration contenue dans le
texte de l'article 73 tel qu'il a étéfinalement approuvé (annexe A
au rapport) us'appliquerait à tous les territoires de ce genre ... et
à [tous] les Etats Membres des Nations Unies à qui incombe la
responsabilité de l'administration de territoires habités par des
peuples qui ne s'administrent pas encore eux-mêmes»(ibid., p. 624). MINUTES
6. The fact that in the same Report there appears (ibid., p. 609)
in connection with the said declaration the following words:
'It was said that independence was the aim of many dependent
peoples and that its attainment should not be excluded by the
terms of the Charter. On the other hand, it was urged that since
the section on the declaration applied to all dependent "territories"
and not merely to those placed under trusteeship, the reference to
independence should more properly be made in the section on
Trusteeship.'
7. The tact that when the said Report of Committee 4 of Com
mission Il was brought before that Commission on 20 June 1945,
the Chairman of that Commission in introducing the Report and
opening the debate thereon stated as follows:
'Practically ali that the Committee had before it was a section
of the old Covenant of the League of Nations, which dealt with the
subject of mandates .. .'
'This scheme [namely, that set out in the said Report] diverts in
scope very largely from that old Covenant scheme. The principle
of trusteeship is now applied generally. It applies to all dependent
peoples in ali dependent territories. It covers all of them .. .'
'Part A [i.e., the present Article 73] applies the trustee principle
to ali dependent territories. whether they are mandates, whether
they are territories taken from defe1ted countries, or whether they
are existing colonies of Powers . The whole field of dependent
peoples living in different territories is now covered.'
'A [i.e., the present Article 73] deals with that larger extension,
and it puts countries, especially colonial powers who have colonies
to look after, under certain obligations which you will find set out
in the recommendations and in the Report.' (U.N.C.I.O., Vol. 8.
pp. 126-127).
'The result will be that as both Section A [i.e., present Chapter XI]
and B [i.e., present Chapter XII] are applied to dependent peoples
all over the world wherever you have territory inhabited by de
pendent peoplc-peoples who have not advanced enough to look
after themselves ... they will all have the benefit of this new
administration. They will also have the United Nations Organization
seeing that they do get those benefits, that these principles which
have been evolved for their govemment and their advancement are
duly carried out.'
'... this present scheme differs from the mandate scheme to which
we have been accustomed hitherto .. .' (Ibid., pp. 127-128.)
8. The fact that no dissent to such statements by the Chairman
of Commission II was expressed during the course of the ensuing
debate.
g. The fact that the text of Article 73 was finally adopted at this
meeting on 20 June 1945, and the Charter was signed six days
thereafter."
The Court rose at r2.50 p.m.
[Signatures.]
1 Compare the three categories of territormentioned in Chapter XII, Article
77,of the Charter. PROCÈS- VERBAUX 41
6. Dans le mêmerapport, on trouve le passage suivant à propos
de la mêmedéclaration (ibid., p. 625}:
dl a étédit que l'indépendance est le but de beaucoup de peuples
«dépendants et que son obtention ne devrait pas êtreexclue par
<desconditions de la Charte. D'un autre côté,il a étédit que la men
ation de l'indépendance devrait figurer plutôt dans la section con
«cernant la tutelle, puisque la section concernant la déclaration
«S'applique à tous les territoires dépendants et non pas seulement à
«ceux placéssous tutelle.»
J. Lorsque ce rapport du Comité 4 de la Commission II a été
soumis à cette commission le 20 juin 1945, le président de la com
mission a dit, enprésentant le rapport et. en ouvrant le débat:
<.t.. le comitén'avait guère pour le guider que la section du Pacte de
nia Sociétédes ,Nations se rapportant auxM~dats ...
«Ce système [cel qu~ est indiqué dans le rapport] a une portée
«très différente de l'ancien système prévu par le Pacte. Le principe
([dela tutelle est maintenant d'une applicationgénérale.Ils'applique à
<ctousles peuples dépendants dans tous les territoires dépendants.
dl les concerne tous ...
ceLapartie A [l'actuel article 73] applique le principe de la tutelle
<'àtous les territoires dépendants non autonomes; il s'agit à la fois
~de erritoires qui sont sous Mandat, des territoires conquis sur les
~pay saincus et des actuelles colonies des Puissances 1:Il s'agit
«maintenant de l'ensemble des peuples non autonomes vivant dans
~de serritoires non autonomes.
nLa partie A [l'actuel article 73] concerne cet élargissement et il
<tÏmposeaux pays, spécialement aux Puissances coloniales qui ont
''às'occuper de leurs colonies, certaines obligations que vous trou
''verez énuméréesdans la recommandation et dans le rapport.»
(Ibid., vol. 8, p. r62).
nLe résultat sera que les deux sections, la section A [l'actuel
«chapitre XI] et la section B [l'actuel chapitre XII] s'appliquent
((auxpopulations dépendantes du monde entier dès lors qu'il existe
nun territoire habité par des populations dépendantes, populations
<cquine sont pas encore assez avancées pour se diriger elles-mêmes
«et qui bénéficieronttoutes des avantages de la nouvelle administra
«tion. L'Organisation des Nations Unies veillera aussi à ce qu'elles
<•profitentde ces avantages, à ce que les principes élaborésen vue de
«leur gouvernement et de leur progrès soient dûment appliqués.
11•••le système actuel diffère du système des Mandats dont nous
~avio lhsbitude>>(ibid., p. 162). [Traduction du Greffe.]
8. Au cours du débat qui a suivi, ces déclarations du président
de la Commission II n'ont soulevéaucune objection.
9· Le texte de l'article 73 a étéfinalement adopté à la séancedu
20 juin1945 et la Charte a étésignéesix jours plus tard.»
L'audience est levéeàI2 h 50
[Signatures.]
1Comparer ceci avec les trois catégories de terrimentionneés à l'article
77, chapitre XH, de la Charte.42 MINUTES
THIRTY-SECONP DUBLICHEARING (14 V 65, IO a.m.)
Present: [See hearing of 15 m 65. Judge Padilla Nervo absent.]
The PRESIDENT opened the hearing and caUed upon the Agent for the
Applicants.
Mr. GRoss continued the speech reproduced in the annex 1.
The PRESIDENTsaid that on 4 May the Applicants bad requested the
Court, in the event that the Respondent desired to produce any evidence
the production of which was permitted by the Court, to order or other
wise decide that the Respondent, in lieu of calling witnesses or experts to
testify personally, should embody the evidence of any such witness or
expert in a deposition or written statement properly authenticated which
should then constitute a full and complete statement of the evidence
which such witness or expert would have adduced if personallyïn Court.
The Applicants had indicated that, in the event that the Court made
an arder to that effect, they would waive ali right to be present during
the taking of such depositions or the preparation of such statements for
any purpose, including the purpose of cross-examination.
On 5 May, the Agent for the Applicants bad directed a letter to the
Agent for the Respondent, seeking the consent of the Respondent to
procedures which the Applicants proposed should be followed, and
recalling that in the event of the Parties failing to reach agreement
thereon, the Court had already been requested to issue an arder or
otherwise decide that the said procedures should be followed. 2
A copy of this letter had been transmitted to the Court •
By a letter of 10 l\lay 1965, the Agent for the Respondent bad indi
cated to the Agent for the Applicants that Respondent was unable to
agree to the Iatter's proposai. A copy of this letter bad been transmitted
to the Court 3.
The Court had considered the said request of the Applicants. In the
view of the Court, the Statute and Rules contemplated a right in the
party in contentions proceedings to produce ail evidence before the
Court by the calling of witnesses and experts, and a party must be left
to exercise that right as it thought fit, subject, of course, to the provisions
of the Court's Statute and Rules. Accordingly, the Court, having con
sidered the request of the Applicants, was unable to accede thereto.
The request by the Applicants bad been made in the course of dis
cussion before the Court by the Parties of a previous request made by
the Respondent that the Court, or a committee thereof, should make an
inspection in loco. The decision which the Court had just announced on
the request made by the Applicants in relation to the calling of evidence
by the Respondent did not, of course, bear upon the Respondent's
request for inspection in loco, upon which the Court bad not yet delib
erated.
The Court rose at II.I5 a.m.
[Signatures.]
1 See IX,pp. 268-zSr.
~ See XII, Part IV.
3 See XII, Part IV. PROCÈS-VERBAUX
43
TRENTE-DEUXIÈME AUDIENCEPUBLIQUE(!4 V 65, IO h)
Présents: [Voir audience du 15 III 65. M. Padilla Nervo, absent.)
Le PRÉSIDENTouvre l'audience et donne la parole à l'agent des deman
deurs.
M. GRoss continue l'exposé reproduit en annexe 1•
Le PRÉSIDENTdéclare que, Je 4 mai, les demandeurs ont prié la Cour
de dire que, au cas où le défendeur désirerait présenter des témoigna~es
dont la production serait autorisée par la Cour, le défendeur, au heu
d'inviter les témoins ou experts à comparaître en personne, devrait con
signer leurs témoignages dans des dépositions ou exposés écrits dûment
authentifiés, lesquels constitueraient un compte rendu intégral des
déclarations que les experts ou témoins auraient faites s'ils s'étaient
personnellement trouvés devant la Cour.
Les demandeurs ont indiqué que, au cas où la Cour rendrait une
ordonnance à cet effet, ils renonceraient à tout droit d'assister à la prise
de ces dépositions ou à la préparation de ces exposés, à quelque fin que
ce soit, notamment aux fins d'un contre-interrogatoire.
Le 5 mai, l'agent des demandeurs a adressé une lettre à l'agent du
défendeur pour demander l'accord du défendeur sur les procédures
proposées par les demandeurs et rappeler que la Cour avait déjà été
priée, pour le cas où les Parties ne pourraient se mettre d'accord à ce
sujet, de dire, par voie d'ordonnance ou de toute autre manière, que
lesdites procédures devaient êtreadoptées. 2
Une copie de cette lettre a ététransmise à la Cour •
Par lettre en date du ro mai rg65, l'agent du défendeur a fait con
naître à l'agent des demandeurs qu'il ne pouvait accepter cette proposi
tion. Une copie de cette lettre a étécommuniquée à la Cour 3.
La Cour a examiné la requête des demandeurs. Elle considère qu'aux
termes du Statut et du Règlement toute partie à une instance a le droit
de produire tous éléments de preuve en faisant citer des témoins et
experts et toute partie doit êtreautorisée à exercer ce droit comme elle
l'entend, sous réserve bien entendu des dispositions du Statut et du
Règlement de la Cour. En conséquence, la Cour, après avoir examiné
la requête des demandeurs, dit qu'elie ne peut y faire droit.
Les demandeurs ont présentéleur requête alors que les Parties étaient
en train de discuter, devant la Cour, d'une proposition antérieure pré
sentée par le défendeur et tendant à ce que la Cour ou un comité désigné
par elle effectue une visite sur les lieux. La décision que la Cour vient de
prendre en ce qui concerne la requête des demandeurs relative à la pro
duction de témoignages par le défendeur n'a, bien entendu, aucun effet
sur la demande du défendeur ayant trait à une visite sur les lieux, de
mande sur laquelle la Cour n'a pas encore délibéré.
L'audience est levéeà II h I5
[Signatures.}
1 Voir IX, p. 268-281.
z Voir XII, quatrième nartio.
' Voir XII, quatrièmepartie.44 MINUTES'
THIRTY-THIRD PUBLIC HEARING (17 V 65, 3 p.m.)
Present: [See hearing of rs m 65. Sir Louis Mbanefo absent.]
The PRESIDENTopened the hearing and called upon the Agent for
the Applicants.
Mr. GROSScontinued the speech reproduced in the annex 1.
The Court adjourned from 4.20 p.m. to 4.40 p.m.
Mr. GROSScontinued the speech reproduced in the annex 2•
The Court rose at 6 p.m.
[Signatures.]
THIRTY-FOURTH PUBLIC HEARING (r8 V 65, IO a.m.)
Present: [See hearing of rs III 6s. Sir Louis Mbanefo absent.]
The PRESIDENTopened the hearing and announced that, as at the
previous hearing, Judge ad hoc Sir Louis Mbanefo was unable to sit.
He called upon the Agent for the Applicants.
Mr. GROSScontinued the speech reproduced in the annex 3.
The Court adjourned from II,20 to II-40 a.m.
Mr. GROSScontinued the speech reproduced in the annex 4•
The Court rose at I p.m.
[Signatures.]
THIRTY-FIFTH PUBLIC HEARING (19 V 65, 10 a.m.)
Present: [See hearing of 15 III 65.]
The PRESIDENTopened the hearing and called upon the Agent for the
Applicants.
5
Mr. GROSScontlnued the speech reproduced in the annex •
The Court adjoumed from II.20 a.m. to II.40 a.m.
Mr. GRoss concluded the speech reproduced in the annex 6_
The PRESIDENTasked whether it was correct that the Applicants had
now concluded their case, both on the law and the facts, subject to the
reservations which Mr. Gross had indicated, and had thus made their
final speech in the case based on the law and the facts.
Mr. GRoss said that that was correct ..
The PRESIDENTasked the Agent for the Respondent when the Respon
dent would be prepared to address the Court on the questions of law
which still remained open.
t See IX, pp. 281-296.
2 See IX, pp. 296-JIO.
3 See IX, pp. JII-325.
• See IX, pp. 325-341.
' See IX, pp. 341·358.
6 See IX, pp. 358-376. PROCÈS- VERBAUX 45
TRENTE-TROISIÈMA EUDIENCE PUBLIQUE(IJ V fiS,15 h)
Présents: [Voir audience du IS m fis. Sir Louis Mbanefo, absent.]
Le PRÉSIDENTouvre l'audience et donne la parole à l'agent des deman
deurs.
1
M. GRoss continue l'exposéreproduit en annexe •
L'audience, suspendue à I6 h 20, est reprise à I6 h 40 .
M. GRoss continue l'exposéreproduit en annexe 2•
L'audience est levéeà I8 h
[Signatures.]
TRENTE-QUATRIÈMA EUDIENCE PUBLIQUE {18 VfiS, 10 h).
Présents: [Voir audience du 15 III fis. Sir Louis Mbanefo, absent.]
Le PRÉSIDENTouvre l'audience et déclare que sir Louis Mbanefo, qui
n'a pas assisté à la précédente audience, sera encore absent ce jour. Il
donne la parole à l'agent des demandeurs.
M. GROSScontinue l'exposéreproduit en annexe 3•
L'audience, suspendue à II h 20, est reprise à II h 40
M. GRoss continue l'exposéreproduit en annexe 4•
L'audience est levéea IJ h
[Signatures.]
TRENTE-CINQUIÈMA EUDIENCE PUBLIQUE (Ig V fiS, IO h)
Présents: [Voir audience du 15 III 65.]
Le PRÉSIDENT ouvre l'audience et donne la parole à l'agent des deman
deurs.
M. GROSScontinue l'exposéreproduit en annexe 5.
L'audience, suspendue à II h 20, est reprise àII h 40
6
M. GROSStermine l'exposéreproduit en annexe •
Le PRÉSIDENTdemande s'il est exact que les demandeurs ont mainte
nant terminé l'exposéde leur argumentation, tant sur le droit que sur les
faits, sous les réservesindiquées par M. Gross, et qu'ils ont par conséquent
prononcé leur dernière plaidoirie en l'affaire tant sur le droit que sur
les faits.
M. GRoss dit qu'il en est bien ainsi.
Le PRÉSIDENTdemande à l'agent du défendeur à quel moment la
partie défenderesse sera prête à plaider sur les questions de droit qui
restent encore à exposer.
l Voir IX, p. 281-296.
2
Voir IX, p. 296-310.
J Voir IX, p. 3Il-325.
• Voir IX, p. 325-341.
~ Voir IX, p. 341-358.
6 Voir IX, p. 358-376. MINUTES
Dr. VERLOREN VANTHEMAAT said that in connection with Article 2
South Africa would submit that the Applicants had in effect presented
a new case, calling for considerable consideration and research in arder
to furnish a proper reply thereto. He accordingly requested that South
Africa be permitted to commence its arguments on Monday. 24 May.
The PRESIDENTsaid that the request would be granted. The next
hearing would be held at 3 p.m. on Monday, 24 May, when the Respon
dent would present its case in reply upon the law. By reason of the
situation which had .been arrived at following the statement made by the
Agent for the Applicants that the case of the Applicants had now rested,
the Court would find ü necessary to consider the further procedure in
the case in relation to the facts.
The Court rose at Ip.m.
[Signatures.}
THIRTY-SIXTH PUBLIC HEARING (24V65, 3 p.m.)
Present: (See hearing of rs III65.]
The PRESIDENTopened the hearing and said that the Court had just
been informed of the sudden death of Helge Klaestad, who had rendered
great and signal service to the cause of international law as a judge and
President of the Court. The Court placed on record its deep sympathy
at the event, and extended its condolences to his widow.
The matter of the further procedure to be followed in the case in
relation to the facts had been considered by the Court.
The Applicants having at this stage of the proceedings concluded
their case bath on the law and the facts, subject to certain reservations
indicated by them during the course of the oral hearing on rg May,
including the retention of the right pursuant to Article 50 of the Rules
of Court to comment upon any evidence given by the Respondent, the
procedure to be followed. subject however to any subsequent direction
the Court might make, should be as follows:
r. At the conclusion by the Respondent of its speech in reply upon
the legal issues which had been argued, and after it had replied to any
questions putto it in respect to the same, the Rcspondent would imme
diately thereafter present its case upon the facts, during the course of
which it would present such witnesses and experts as it might be advised
to cali and in respect of whom prior notice of its intention to call the same
should have been given to the Court and the Applicants.
2. The Respondent should present the evidence of such witnesses and
experts aftcr a general opening of its case upon the facts, in which opening
it would indicate to the Court the general scheme it proposed to follow
in the presentation of such witnesses and experts.
3· ln calling any witness or expert the Respondent would indicate
inCourt, with reasonab1e particuJarity, the point or points to which the
evidence of each witness or expert would be dirccted, and the particular
issue or issuesto which such evidence was said to be relevant.
4· After the calling of the evidence and upon the subsequent conclusion
ofthe Respondent's address the Applicants might make such comment
upon the evidence of the said witnesses and experts as they desired
to make. PROCÈS-VERBAUX 47
M. VERLORENVANTHEMAAT déclare que l'Afrique du Sud estime que,
pour ce qui est de l'article 2, les demandeurs ont en fait présenté une
nouvelle argumentation appelant de la part du défendeur un examen
et des recherches considérables en vue d'y apporter la réponse appro
priée. Il demande en conséquence que l'Afrique du Sud soit autorisée à
reprendre ses plaidoiries le lundi 24 mai.
Le PRÉSIDENTdéclare qu'il sera fait droit à cette demande. La pro
chaine audience aura lieu le lundi 24 mai à 15 heures; le défendeur pré
sentera alors sa duplique orale sur le droit. Etant donné la situation dans
laquelle on se trouve à la suite de la déclaration de l'agent des demandeurs
selon laquelle ii a achevé de présenter l'argumentation des demandeurs,
la Cour devra examiner la procédure à suivre pour ce qui est des faits.
L'audience est levéeà IJ h
[Signatures.}
TRENTE-SIXIÈME AUDIENCE PUBLIQUE (24V 65, 15 h)
Présents: [Voir audience du 15 III65.]
Le PRÉSIDENTouvre l'audience et annonce la mort soudaine d'Helge
Klaestad, qui a rendu de grands et signalés services à la cause du droit
international en sa qualité de juge et de Président de la Cour. La Cour
tient à dire qu'elle ressent profondément ce deuil et adresse ses condo
léances à sa veuve.
La question de la procédure à suivre en ce qui concerne les points de
fait a étéexaminée par la Cour.
Les demandeurs ayant au présent stade de la procédure achevé la
présentation de leurs thèses tant sur le droit que sur les faits, sous cer
taines réserves formulées par eux à l'audience du 19 mai et visant notam
ment leur droit de discuter, conformément à l'article 50 du Règlement,
les moyens de preuve produits par le défendeur, il sera procédécomme
suit, sous réserve de toute nouvelle directive éventuelle de la Cour:
1. Dès qu'il aura achevé sa duplique orale sur les points de droit en
cause et répondu aux questions qui lui auront étéposées à ce sujet, le
défendeur présentera immédiatement son argumentation sur les faits
et produira à cette occasion les témoins et experts qu'il estimera oppor
tun de faire citer et dont les noms auront auparavant étécommuniqués
à la Cour et aux demandeurs.
z. Le défendeur fera citer ses témoins et experts après avoir donné
des indications générales sur son argumentation relative aux faits et
sur l'ordre dans lequel il compte présenter ces témoins et experts.
3· Avant de présenter chaque témoin ou expert, le défendeur indi
quera à la Cour d'une manière raisonnablement détailléele ou les points
sur lesquels portera sa déposition et la ou les questions à l'égard desquel
les cette déposition sera considéréecomme pertinente.
4· Lorsque l'audition des témoins et experts et la plaidoirie subsé
quente du défendeur auront pris fin, les demandeurs pourront formuler
sur les dépositions toutes observations qu'ils désireront. MINUTES
5· The Respondent would thereupon be at liberty to make its reply
to comments on such evidence as m1ght be made by the Applicants.
6. This reply of the Respondent should, subject to any explanations
as might thereafter be asked by the Court or any question which might
be putto the Parties by the Court or any Member of the Court, and sub
ject to any order of the Court, conclude the speeches of the Parties
on both the law and the facts.
7. Any amendments which the Applicants might desire to make to
the submissions made by them on 19 May should be made at the con
clusion of the Respondent's final address, but before the Respondent
presented its final submissions.
The Court took the occasion to inform the Parties as follows:
r. The request of the Respondent for an inspection in loco would not
be deliberated upon by the Court until after ali evidence had been
called and the addresses of the Parties had concluded.
2. AHquestions of law and fact concerned with the merits of the case
would be reserved by the Court until after the hearing had been declared
closed and the Court withdrew to consider its judgment.
He called upon the Agent for the Respondent.
Dr. VERLOREN VANTHEMAAT requested that Mr. de Villiers be allowed
to address the Court on his Govemment's behalf.
The PRESIDENTcalled upon Mr. de Villiers.
1
Mr. de VILLIERSbegan the speech reproduced in the annex .
The Court adjourned from 4.20 p.m. to 4.40 p.m.
Mr. de Villiers continued the speech repoduced in the anncx 2•
The Court rose at 5-55 p.m.
[Signatures.]
THIRTY-SEVENTP HUBLICHEARING (25 V 65, IO a.m.)
Present: [See hearing of 15 m 65.]
The PRESIDENTopened the hearing and called upon the Agent for the
Respondent.
Mr. de VILLIERScontinued the speech reproduced in the annex 3•
The Court adjourned from II.20 a.m. to II.40 a.m.
Mr. de VILLIERScontinued the speech reproduced in the annex ~.
The Court rose at r2.55 p.m.
[Signatures.}
• See IX, PP· 377-39!.
2See IX, pp. 39r-4o6.
lSee IX, pp. 406-.p3.
• See IX,pp. 423-438. PROCÈS- VERBAUX
49
s. Le défendeur aura ensuite la faculté de répondre aux observations
que les demandeurs auront pu faire sur les dépositions.
6. Sous réserve des explications que la Cour pourra ultérieurement
demander ou des. questions que la Cour ou certains de ses membres
pourront poser aux Parties et sous réserve de toute ordonnance éven
tuelle de la Cour, la répliquedu défendeur constituera la fin des plaidoiries
des Parties sur le droit et sur les faits.
7· Si les demandeurs désirent apporter des amendements aux con
clusions déposéespar eux le rg mai, ils devront le faire après que le dé
fendeur aura achevé sa dernière plaidoirie et avant qu'il présente ses
conclusions finales.
La Cour saisit cette occasion pour faire connaître aux Parties:
I. que la Cour ne délibérerasur la requête du défendeur relative à
une visite sur les lieux qu'après que tous les témoins et experts auront
étéentendus et que les Parties auront achevé leurs plaidoiries;
2. que la Cour réservera l'examen de tous les points de droit et de
fait touchant au fond de l'affaire jusqu'à ce que la clôture de la procé
dure orale ait étéprononcée et que la Cour se soit retirée pour délibérer.
Le Président donne la parole à l'agent du défendeur.
M. VERLOREN VANTHEMAAT demande que M. de Villiers soit autorisé à
parler au nom de son gouvernement.
Le PRÉSIDENTdonne la parole à M. de Villiers
M. de VILLIERScommence l'exposéreproduit en annexe 1•
L'audience, suspendue à I6 h 20, est reprise àr6 h 40
M. de VILLIERScontinue l'exposéreproduit en annexe 2.
L'audience est levéeà I7 h 55
[Signatures.]
TRENTE-SEPTIÈME AUDIENCE PUBLIQUE (25 V 65, IO h)
Présents: [Voir audience du 15 III 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à l'agent du défen
deur.
M. de VILLIERScontinue l'exposéreproduit en annexe •
L'audience, suspendue à II h 20, est reprise àII h 40
M. de VILLIERScontinue l'exposéreproduit en annexe •
L'audience est levéeà I2 h 55
[Signatures.]
1 Voir IX, p. 377-391.
2 Voir IX, p. 391-406.
l Voir IX, p. 406-423.
4
Voir IX,p. 423-438. MDIUTES
so
THIRTY-EIGHTP HUBLICHEARING (26 V 65, 10 a.m.)
Present: [See hearing of 15 III65.]
The PRESIDENTopened the hearing and called upon the Agent for
the Respondent. 1
Mr. de VILLIERScontinued the speech reproduced in the annex •
The Court adjourned from rr.zo a.m. to II.45 a.m.
Mr. de VILLIERScontinued the speech reproduced in the annex 2•
The Court rose at I2.JO p.m.
[Signatures.]
THIRTY-NINTH PUBLICHEARING (27 V 65, 10 a.m.)
Present: [See hearing of 15 m 65.]
The PRESIDENTopened the hearing and said that upon the adjourn
ment of the Court the previous day the Agents of the Parties had seen
him. A request had been made by the Respondent that the further hear
ing of the Oral Proceedings should be adjourned for a period of two
weeks, in arder to enable the Respondent ta consider fully the effect of
new matter stated ta have been introduced by the Appiicants late in
the course of their oral reply, to prepare properly its oral argument in
response thereto and ta determine whether it would seek to tender
evidence thereon. It had been stated that without the adjoumment
requested the Respondent would be placed under a handicap in engaging
in the research deemed ta be necessary, and that the adjoumment was
also necessary to permit the Agent for the Respondent to have consul
tations with his Government.
The request of the l~cspond hant been considered, and in the cir
cumstances, the Agent for the Applicants making no objection, the Court
would grant an adjournment until Tuesday, 8 June, at 3 p.m. It was to
be understood that the Respondent would then be prepared to proceed
with the further presentation of its case.
He called upon 1\Ir.de Villiers.
3
Mr. de VILLIERScontinued the speech reproduced in the annex .
The Court adjourned from II.IS a.m. to II.45 a.m.
Mr. de VILLIERScontinued the speech reproduced in the annex 4•
The Court rose at Iz.os p.m.
[Signatures.]
1See IX, pp.438-454.
zSee IX, pp.454-462.
'4See IX,pp. 462-476.
See IX, pp.476-481. PROCÈS-VERBAUX SI
TRENTE-HUITIÈME AUDIENCE PUBLIQUE (26 V65, IO h)
Présents: [Voir audience du rs III65.}
Le PRÉSIDENTouvre l'audience et donne la parole.à l'agent du défen
deur.
M. de VILLIERScontinue l'exposéreproduit en annexe 1.
L'audience, suspendue à II h 20, est reprise à II h 45
2
M. de VILLIERScontinue l'exposéreproduit en annexe •
L'audience est levéeà I2 h JO
[Signatures.]
TRENTE-NEUVIÈME AUDIENCE PUBLIQUE(27 V65, IO h)
Présents: [Voir audience du rs III6s.J
Le PRÉSIDENTouvre l'audience et déclare qu'après la clôture de la
précédente audience il a reçu les agents des Parties. Le défendeur a de
mandé que les audiences soient suspendues pour deux semaines, afin de
permettre d'examiner tous les aspects de la nouvelle question qu'il estime
avoir étéintroduite par les·demandeurs dans la dernière portée de leur
réplique orale, de préparer convenablement sa réponsesur ce point et de
déterminer s'il devra produire des témoins en la matière. Le défendeur a
déclaréque, si cette suspension ne lui était pas accordée,il se trouverait
dans une situation désavantageuse pour procéderaux recherches voulues
et que l'ajournement serait également nécessairepour permettre àl'agent
du défendeur de consulter son gouvernement.
La requêtedu défendeur a étéexaminée; étant donnéles circonstances,
l'agent des demandeurs ne faisant aucune objection, la Cour suspendra
ses audiences jusqu'au mardi 8 juin à 15 heures. Il est entendu que le
défendeur sera alors prêtà poursuivre sa plaidoirie.
Le Président donne la parole à M. de Villiers.
M. de VILLIERScontinue l'exposéreproduit en annexe 3•
L'audience, suspendue à II h Ij, est reprise à II h 45
4
M. de VILLIERScontinue l'exposéreproduit en annexe •
L'audience est levéeà I2 h 5
[Signatures.}
1 Voir IX, p.438-454.
2 Voir IX, p.454-46~.
3 Voir IX, p.462-476.
·Voir IX, p. 476-481.52 MINUTES
FORTIETHPUBLICHEARING(8 VI 65, 3 p.m.)
Present: [See hearing of rs III6s.J
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
1
Mr. de VILLIERScontinued the speech reproduced in the annex .
The Court adjourned from 4.20 p.m. to 4.40 p.m.
Mr. de VILLIERScontinued the speech reproduced in the annex 2•
The Court rose at 6 p.m.
[Signatures.)
FORTY-FIRST PUBLICHEARING (9 VI 65, IO a.m.)
Present: [See hearing of 15 m 65.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
3
Mr. de VILLIERSconcluded the speech reproduced in the annex •
The PRESIDENTcalled upon Mr. Grosskopf.
Mr. GROSSKOPF began the speech reproduced in the annex 4•
The Court adjourned from II.20 a.m. to II.45 a.m.
5
Mr. GROSSKOPF continued the speech reproduced in the annex .
The Court rose at I p.m.
[Signatures.]
FORTY-SECONP DUBLICHEARING(10 VI65, IO a.m.)
Present: [See hearing of rs III 6s.J
The PRESIDENTopened the hearing and called upon Mr. Grosskopf.
Mr. GROSSKOPF concluded the speech reproduced in the annex .
The PRESIDENTcalled upon Mr. de Villiers.
Mr. de VILLIERSbegan the speech reproduced in the annex 7.
The Court adjourned from II.20 a.m. to II.45 a.m.
Mr. de VILLIERScontinued the speech reproduced in the annex 8.
The Court rose at z2.55 p.m.
[Signatures.]
1 See IX, pp. 482-497.
2 See IX, pp. 497-513.
3 See IX, pp. 513-523.
• See IX, pp. 524-53r.
5 See IX, pp. 531-548.
6 See IX, pp. 548-56o.
7 See IX, pp. 561-566.
8 See IX, pp. 566-581. PROCÈS-VERBAUX SJ.
QUARANTIÈMEAUDIENCEPUBLIQUE(8 VI 65, 15 h)
Presents: [Voir audience du 15 m 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
1
M. de VILLIERScontinue l'exposé reproduit en annexe .
L'audience, suspendue à I6 h-20, est reprise à I6 h 40
M. de VILLIERScontinue l'exposé reproduit en annexe 2•
L'audience est levéeà I8 h
[Signatures.]
QUARANTE ET UNIÈME AUDIENCEPUBLIQUE{g VI 65, IO h)
Présents: [Voir audience du rs m 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
3
M. de VILLIERStermine l'exposé reproduit en annexe •
Le PRÉSIDENTdonne la parole à M. Grosskopf.
M. GROSSKOPFcommence l'exposé reproduit en annexe~.
L'audience, suspendue à II h 20, est reprise à II h 45
5
M. GROSSKOPFcontinue l'exposé reproduit en annexe •
L'audience est levéeà IJ h
[Signatures.]
QUARANTE-DEUXIÈME AUDIENCEPUBLIQUE{10 VI 65, 10 h)
Présents: [Voir audience du rs III 6s.J
Le PRÉSIDENTouvre l'audience et donne la parole à M. Grosskopf.
M. GROSSKOPFtermine l'exposé reproduit en annexe 6.
Le PRÉSIDENTdonne la parole à M. de Villiers.
M. de VILLIERScommence l'exposé reproduit en annexe~.
L'audience, suspendue à II h 20, est reprise à II h 45
M. de VILLIERScontinue l'exposé reproduit en annexe 8 •
L'audience est levéeà I2 h 55
[Signatures.]
1 Voir IX, p. 482-497.
2 Voir IX, p.497-513.
3 Voir IX, p.513-523.
• Voir IX, p. 524-53r.
5 Voir IX, p. 531-548.
6 Voir IX, p.548-56o.
7 Voir IX, p.561-566.
a Voir IX, p.566-58r. MINUTES
54
FORTY-THIRD PUBLICHEARING(II VI65, 10 a.m.)
Present: [See hearing of 15 III 65.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex 1.
The Court adjourned from II.20 a.m: to II.45 a.m.
Mr. de VILLIERScontinued the speech reproduced in the annex 2•
The Court rose at I p.m.
[Signatures.]
FORTY-FOURTH PUBLICHEARING(14 VI65, 3 p.m.)
Present: [See hearing of 15 m 65. Judge Badawi absent.]
The PRESIDENTopened the hearing and announced that Judge Ba
dawi was indisposed and would not be sitting during the week. He
.called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex 3•
The Court adjourned from 4.20 p.m. to 4-45 p.m.
Mr. de VILLIERScontinued the speech reproduced in the annex •.
The Court rose at 5·55 p.m.
[Signatures.]
FORTY-FIFTH PUBLICHEARING(15 VI 65, 10 a.m.)
Present: [See hearing of 15 III 65. Judge Badawi absent.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERSconcluded the speech reproduced in the annex 5•
The PRESIDENTcalled upon the Agent for the Respondent.
Dr. VERLORENVANTHEMAATbegan the speech reproduced in the
annex 6• '
The Court adjourned from II.20 a.m. to II.40 a.m.
Dr. VERLORENVANTHEMAATconcluded the speech reproduced m
the annex 7•
The PRESIDENTcalled upon Mr. de Villiers.
8
Mr. de VILLIERSbegan the speech reproduced in the annex •
The Court rose at I p.m.
[Signatures.]
r See IX, pp. 58 r·596.
2 See IX, pp. 596-6r t.
3 See IX, pp. 61 r-627.
4 See IX, pp. 627-642.
' See IX, pp. 64'~-658.
6 See X, pp. 3-4.
7 See X, pp. 4-1 r.
~ See X, pp. rz-r6. PROCÈS-VERBAUX 55
QUARANTE-TROISIÈME AUDIENCEPUBLIQUE(II VI 6 5, 10 h)
Présents: [Voir audience du 15 III65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
M. de VILLIERScontinue l'exposé reproduit en annexe 1•
L'audience, suspendue à II h 20, est reprise à II h 45
M. de VILLIERScontinue l'exposé reproduit en annexe 2•
. L'audience est levéeà IJ h
[Signatures.]
QUARANTE-QUATRIÈMA EUDIENCEPUBLIQUE(1 VI 6S, IS h)
4
Présents: [Voir audience du 15 III65. M. Badawi, absent]
Le PRÉSIDENTouvre l'audience et annonce que M. Badawi,· souffrant,
n'assistera pas aux audiences de la semaine. Il donne la parole à M. de
Villiers.
M. de VILLIERScontin.ue l'exposé reproduit en annexe 3.
L'audience, suspendue à I6 h 20, est reprise à I6 h 45
M. de VILLIERScontinue l'exposé reproduit en annexe 4.
L'audience est levéeà I7 h 55
[Signatures.]
QUARANTE-CINQUIÈME AUDIENCEPUBLIQUE(IS VI 6 ,10 h)
5
Présents: [Voir audience du IS m 65. M. Badawi, absent.]
Le PRÉSIDENT ouvre l'audience et donne la parole à M. de Villiers.
M. de VILLIERStermine l'exposé reproduit en anne~e 5.
Le PRÉSIDENTdonne la parole à l'agent du défendeur.
M. VERLORENvan THEMAATcommence l'exposé reproduit en annexe 6•
L'audience, suspendue à II h 20, est reprise à II h 40
M. VERLORENvan THEMAATtermine l'exposé reproduit en annexe 7•
Le PRÉSIDENTdonne la parole à M. de Villiers. 8
M. de VILLIERScommence l'exposé reproduit en annexe .
L'audience est levéeà IJ h
[Signatures.]
1
Voir IX, p. 581-596.
2 Voir IX, p.596-61 1.
3 Voir IX, p. 6r r-627.
• Voir IX, p. 627-642.
' Voir IX, p.642-648.
6 Voir X, p. 3-4.
7 Voir X, p. 4-1 r.
e Voir X, p.12-16.s6 MINUTES
FORTY~SI XUTBHLICHEARING (16 VI65, 10 a.m.)
Present: [See hearing of 15 III65. Judge Badawi, absent.}
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex 1•
The Court adjourned from II.20 a.m. to II.40 a.m.
Mr. de VILLIERScontinued the speech reproduced in the annex 2•
The Court rose at I2.55 p.m.
[Signatures.]
FORTY-SEVENTP HUBLICHEARING (17 VI 65, IO a.m.)
Present: [See hearing of 15 III65. Judge Badawi abse~t.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the rumex 3•
The Court adjourned from II.20 a.m. toII.40 a.m.
Mr. de VILLIERScontinued the speech reproduced in the annex •.
The PRESIDENTsaid that it was to be understood that, for the con
venience of both the Court and the Applicants, the Court would be in
formed on the previous day of the witness or expert that it was proposed
to caU on the following day.
Mr. de VILLIERSsaid that the first witness would be Dr. W. W. M.
Eiselen.
The Court rose at I p.m.
[Signatures.}
FORTY-EIGHTH PUBLICHEARING (18 VI65, 10.05 a.m.)
Present: [See hearing of rs m 65. Judge Badawi absent.}
The PRESIDENTopened the hearing and ca1Jedupon Mr. de Villiers.
Mr. de VILLIERSconcluded the speech reproduced in the annex 5•
The PRESIDENTrequested that the Court be informed before the next
hearing which of the witnesses or experts whose names had already
been communicated to the Court would not now be called. Ttwas under
stood that any further names which had not yet been determined upon
would be communicated to the Court within a reasonable period of
ti~. .
He then indicated the procedure which would be followed for the hear
jng of witnesses and experts.
1
See X, pp. •7-J'.l.
2 See X, pp.32-46.
l See X, pp.46-61.
• See X, pp. 6r-77.
5 See X, pp. 77-87. PROCÈS-VERBAUX 57
QUARANTE-SIXIÈMA EUDIENCEPUBLIQUE(r6 VI65, 10 h)
Présents: [Voir audience du 15 III 65. M. Badawi, absent.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
M. de VILLIERScontinue l'exposéreproduit en annexe 1•
L'audience, suspendue à II h 20, est reprise à II h 40
2
M. de VILLIERScontinue l'exposéreproduit en annexe •
L'audience est levéeà I2 h 55
[Signatures.]
QUARANTE-SEPTIÈMA EUDIENCEPUBLIQUE (IJ VI6 5 IO h)
Présents: [Voir audience du 15 III 65. M. Badawi, absent.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
M. de VILLIERScontinue l'exposéreproduit en annexe 3.
L'audience, suspendue à II k 20, est reprise à II k 40
4
M. de VILLIERScontinue l'exposéreproduit en annexe •
Le PRÉSIDENT déclarequ'il doit êtreentendu que, tant pour la commodité
de la Cour que pour celle des demandeurs, la Cour sera informéeun jour
à l'avance du nom du témoin ou de l'expert que l'on se propose de faire
entendre.
M. de VILLIERSindique que le premier témoinsera M. W. W. M. Eiselen_
L'audience est levéeà IJ h
[Signatures.}
QUARANTE-HUITIÈMA EUDIENCEPUBLIQUE(r8 VI65, IO h 5)
Présents: [Voir audience du 15 m 65. M. Badawi, absent.]
Le PRÉSIDENTouvre l'audience et donne la parole à 5 M. de Villiers.
M. de VILLIERStermine l'exposéreproduit en annexe •
Le PRÉSIDENTdemande que la Cour soit informée avant la prochaine
audience du nom des témoins ou experts qui, bien que portés sur les.
listes présentées à la Cour, ne seront pas cités. Il est entendu que les.
noms non encore signalés seront communiqués à la Cour dans un délai
raisonnable.
Le Président indique la procédure à suivre pour l'audition des témoins.
et experts.
1 Voir X, p. '7-32.
2 Voir X, p. 32-46.
3 Voir X, p.46-6r.
• Voir X, p. 6r-n.
' Voir X, p. 77-87. MINUTES
Witnesses waiting to be called might not, without the permission of
the Court, be present in Court when any other witness was giving evi~
denee. Any witness might remain in the Court after his evidence had
been given unless the Court otherwise directed. This direction extended
also to experts.
The witness or expert would take his place at the rostrum and would
make the appropriate declaration provided for in Article 53 of the Rules
of Court. Persons appearing in the capacity of both witness and expert
would make both the declarations provided for therein. If the witness
or expert spoke a language other than French or English, the interpreter
supplied by the Respondent would make the declaration provided for
in Article 58 of the Rules of Court. In the case of ali questions, statements,
and evidence in French or English, the interpretation would be made
simultaneously into the other language by the Court's interpreters. In
the case of statements which had to·be interpreted into one of the Court's
official languages by an interpreter supplied by the Respondent, the in
terpretation into the first official language would be made consecutively
by the Respondent's interpreter. This translation would be interpreted
simultaneously into the other officiallanguage by the Court's interpreters.
After the declarations provided for in the Rules of Court had been
made, questions would be put to the witness or expert by Agent or
Counsel for the Respondent. The Agent for the Applicants would then
be given an opportunity ta cross-examine if he so desired. Next would
come any questions which the President and the Judges might de
sire ta put. Lastly, the Respondent would have an opportunity ta re~
examine.
Article 6o, paragraph 2, of the Rules of Court provided as follows:
"A transcript of the evidence of each witness or expert shaH be made
available to him in arder that mistakes may be corrected under the
supervision of the Court."
· One copy of the transcript of each witness' evidence would be made
available to the witness as saon as possible after the evidence had
been given. The witness would be asked to insert in the transcript
corrections of any mistakes that might have occurred and return the
signed corrected copy to the Registry within 24 hours, in order to
facilitate any supervision that the Court might think it proper to·exer
cise in respect of any corrections made. In the case of witnesses who
used one of the Court's official languages, the transcript to be signed
by them would be the one drawn up in the language in which they
spoke. In the case of those who, as provided in paragraph 2 of Article
58 of the Rules of Court, made use of another language, it was the trans
cript of the translation arranged for by the Party concemed under the
supervision of the Court which, as being the authentic text. would be
corrected by the witness and signed by him.
Witnesses who were called should remain available for the Court,
unless they were released on application made by the Respondent. It
would be convenient if whoever was presenting the testimony ofthe wit~
ness to the Court would briefty state before the evidence was given, in
summary fonn, the nature of the evidence to be given and the point or
points to which it would be directed.
The Court began the hearing of the witnesses and experts 1•
1 See X,pp. 88-go. PROCÈS- VERBAUX sg.
A moins d'y êtreautorisé par la Cour, un témoin qui n'aura pas encore
étéinvité à témoigner ne pourra assister à l'audience tant qu'un autre
témoin sera en train de déposer. Une fois sa déposition faite, il pourra
rester dans la salle à moins que la Cour n'en décide autrement. Cela.
vaudra également pour les experts.
Le témoin ou l'expert prendra place au pupitre; il prononcera ensuite
la déclaration appropriée prescrite par l'article 53 du Règlement de la
Cour. Toute personne entendue à la fois comme expert et comme témoin
fera les deux déclarations prescrites par ledit article. Sile témoinou l'expert
parle une autre langue que le français ou l'anglais, l'interprète fourni parle
défendeur prendra l'engagement prévu à l'article 58 du Règlement.
Lorsque le français ou l'anglais seront utilisés pour toutes les questions,
déclarations et dépositions, l'interprétation simultanée sera assurée dans.
l'autre langue par les interprètes de la Cour. Lorsque les exposésdevront
êtreinterprétés dans l'une des langues officielles de la Cour par l'inter
prète que fournira le défendeur, l'interprétation dans cette langue offi
cielle sera faite selon la méthode consécutive par l'interprète du défen
deur. La traduction de celui-ci sera interprétée simultanément dans.
l'autre langue officielle par les interprètes de la Cour.
Lorsque les déclarations prescrites par le Règlement auront étéfaites,
l'agent ou le conseil du défendeur posera des questions au témoin ou à
l'expert. L'agent des demandeurs se verra alors offrir la possibilité
de procéder à un contre-interrogatoire s'ille désire. Il se peut qu'ensuite
le Président et les juges souhaitent poser des questions. Enfin le défen
deur aura la possibilité de poser des questions supplémentaires au témoin
ou à l'expert.
L'article 6o, paragraphe 2, du Règlement dispose: ((Chaque témoin et
expert reçoit communication du compte rendu de sa déposition, afin que,.
sous le contrôle de la Cour, il puisse corriger toutes erreurs.»
Chaque témoin recevra copie du compte rendu de sa déposition aussitôt
que possible après qu'il aura témoigné.Il sera priéd'y apporter les cor
rections destinées à rectifier les erreurs qui auraient pu se produire et de
renvoyer au Greffe l'exemplaire corrigé, muni de sa signature, dans les
vingtcquatre heures, de façon à faciliter le contrôle que la Cour pourra.
juger approprié d'exercer sur les corrections. Lorsque le témoin emploiera.
l'une des langues officielles de la Cour, le compte rendu de sa déposition
qu'il devra signer sera le compte rendu établi dans la langue dont il se
sera servi. Lorsque le témoin aura employé une autre langue, ainsi qu'il
est prévu à l'article 58, paragraphe 2, du Règlement, c'est la traduction
établie à l'intention de la Partie intéresséesous le contrôle de la Cour
qui constituera le texte authentique et en conséquencesera corrigéepar les.
soins du témoin et signée par lui.
Les témoins entendus devront rester à la disposition de la Cour, à
moins qu'il n'en soit décidéautrement sur la demande du défendeur. Il
serait utile que la personne qui présentera des témoins à la Cour indique
brièvement, avant chaque déposition, quelle en sera la nature et sur
quels point ou points elle portera.
La Cour commence l'audition des témoins et experts 1.
t Voir X, p. 88-go.QO MINUTES
The Court adjourned from II.20 a.m. to II.40 a.m.
The Court continued the hearing of the witnesses and experts 1•
The Court rose at I p.m.
[Signatures. J
FORTY-NINTH PUBLICHEARING (21 VI 65, 3 p.m.)
Present: [See hearing of 15 III65. Judge Badawi absent.]
The PRESIDENTopened the hearing and requested the Deputy-Re
gistrar to read letters of r6 and 20 June rg65 received from the Agent
for the Government of South Africa and the Agent for the Governments
Qf Ethiopia and Liberia.
The DEPUTY-REGISTRAr Read the letters reproduced in the Annex 2.
The PRESIDENTsaid that the Court desired to indicate to both Parties
that in all matters touching the public proceedings, any submissions or
contentions or reservations made or sought to be made by either Party,
including objections to evidence or relevance of evidence, should be
made in open Court and not by correspondence to the Registry.
The Court continued the hearing of the witnesses and experts 3•
The Court adjourned from 4.20 p.m. to 4.40 p.m.
The Court continued the hearing of the witnesses and experts 4,
The Court rose at 6.05 p.m.
[5ignatures.}
FIFTIETH PUBLIC HEARING (22 VI 65, 3 p.m.)
Present: [See hearing of 15 III 65. Judge Badawi absent.]
The Court continued the hearing of the witnesses and experts'·
The Court adjm1rned from 4.20 p.m. to 4.40 p.m.
The Court continued the hearing of the witnesses and experts 6•
The PRESIDENTsaid that the Court desired to put certain questions
to the Parties.
These questions bore upon the fact that the Applicants relied upon a
certain norm and/or standards as the basis for interpreting compliance
with Article 2 (2). On the other hand, the Respondent disputed the exis
tence of any such norm or standards and based its case upon the propo
sition that Article 2 (2} could not be shown to have been breached by
it unless, in respect to the exerc1se of its authority under Article 2 of
2 SeeX, pp. 90-too.
Sec XII, Part IV.
3 See X,pp. roo-nr.
• Sce X, pp. rrr·I24-
~See X, pp. 124-139·
iiSee X, pp. 139-154· PROCÈS-VERBAUX 61
L'audience, suspendue à II h 20, est reprise à II h 40
La Cour continue l'audition des témoins et experts •
L'audience est levéeà IJ h
[Signatures.}
QUARANTE-NEUVIÈM AEUDIENCE PUBLIQUE (21 VI65, 15 h)
Présents: [Voir audience du rs III6s. M. Badawi, absent.]
Le PRÉSIDENTouvre l'audience et invite le Greffier adjoint à donner
lecture d'une lettre de l'agent du Gouvernement sud-africain en date
du r6 juin 1965 et d'une lettre de l'agent des Gouvernements éthiopien
et libérienen date du 20 juin 1965.
Le GREFFIERADJOINTlit les lettres reproduites en annexe 2•
Le PRÉSIDENTdéclare que la Cour désire indiquer aux deux Parties
que, pour tout ce qui concerne la procédure publique, toutes les con
clusions, prétentions ou réserves qu'une Partie exprime ou désireexprimer,
y compris celles qui visent des objections à l'égardde certains moyens de
preuve ou de la pertinence de certains moyens de preuve, doivent être
présentéesen audience publique et non pas par lettre adresséeau Greffe.
La Cour continue l'audition des témoins et experts 3•
L'audience, suspendue à I6 h 20, est reprise à I6 h 40
La Cour continue l'audition des témoins et experts 4•
L'audience est levéeà I8 h 5
[Signatures.]
CINQUANTIÈMA EUDIENCE PUBLIQUE (22 VI 65, 15 h)
Présents: [Voir audience du 15 rn 65. M. Badawi, absent.]
La Cour continue l'audition des témoins et experts 5•
L'audience, suspendue à I6 h 20, est reprise à I6 h 40
6
La Cour continue l'audition des témoins et experts •
Le PRÉSIDENTdéclare que la Cour désire poser certaines questions
aux Parties.
Ces questions ont trait au fait que les demandeurs se fondent sur une
certaine norme et fou sur certains ''standards nenvue d'interpréterl'appli
cation de l'article 2, alinéa 2.Pour sapart, ledéfendeurconteste l'existence
de cette norme ou de ces «standards J>et fonde son argumentation sur
cette assertion que la preuve d'une violation par le défendeur de l'ar
ticle 2, alinéa 2, ne peut êtrefaite que s'il est établi que, dans l'exercice
1 Voir X, p.90-roo.
~ Voir XII, Partie.IV.
3 Voir X, p. IOO·Ill.
• Voir X, p.111-124.
s Voir X, p. 124-139·
o(jVoirX, p. 139-154·62 MINUTES
the Mandate, it was shawn that it had acted in bad faith, or for a pur
pose other than to give ef'fectto Article 2 (2) of the Mandate and that
the Article must·be interpreted accordingly.
The questions which the Court desired to putto the Parties were the
following:
Assuming the Court were to come to the conclusion that there had
not been established any such legal norm or standards and were also
to come to the conclusion that the interpretation sought to be placed
upon Article 2 (2) of the Mandate by the Respondent was not the proper
interpretation to be placed upon that Article, or did not exhaust the
meaning thereof,
Question r. Do the Parties contend that the Court is bound to adju
dicate the dispute between the Parties exclusively upon the basis on
which they have presented their respective cases and the interpretation
they have respectively sought to give to Article 2 (2) of the Mandate?
Question 2. Do the Parties contend that it is not open to the Court
to place its own interpretation upon the article, having regard to all
relevant legal considerations and adjudge between the Parties accord
ingly?
Question 3· In particular, do the Parties contend that it is not open
to the Court to interpret paragraph 2, sub-paragraph 2 thereof, in a
manner by which it would examine and evaluate all relevant facts,
circumstances and conditions appertaining to the Territory, as they
appear before it on the final record in the case, in order to determine
whether the Respondent had discharged its obligations under that ar
ticle and adjudge between the Parties accordingly?
Argument on the legal issues having been completed, it would appear
advisable that these questions should be answered as soon as possible.
Since the Court would adjourn at midday tomorrow, it would be couve
nient to interpose the answers to these questions before the resumption
of hearing evidence, on Wednesday next, 30 June. The Applicants would
be called upon first to give their answers, to be followed by the Res-
pondent. ·
The Court rose at 6 p.m.
[Signatures.]
FIFTY-FIRST PUBLIC HEARING (23 VI 65, IO a.m.)
Present: [See hearing of 15 rn 65. Judge Badawi absent.] 1
The Court continued the hearing of the witnesses and experts .
The Court adjourned from II.20 a.m. to II45 a.m.
The Court continued the hearing of the witnesses and experts 2•
The Court rose at I240 p.m.
[Signatures.]
1 See X, pp. I54-IJO.
2 See X, pp. 17o-r82. PROCÈS-VERBAUX
des pouvoirs à lui conféréspar l'article 2 du Mandat, il a agi de mauvaise
foi ou dans un dessein autre que celui de donner effet à l'article 2, alinéa 2,
du Mandat, et que l'article doit êtreinterprété en conséquence.
· Les questions que la Cour désire poser aux Parties sont les suivantes:
A supposer que la Cour parvienne àla double conclusion que l'existence
de cette norme ou de ces <<standards» juridiques n'a pas étéétablie et
que l'interprétation que le défendeur a cherché à donner de l'article 2,
alinéa 2, du Mandat est mal fondée ou incomplète,
I. Les Parties soutiennent-eUes que la Cour est tenue de statuer sur
le différend entre les Parties uniquement sur la base de leurs thèses telles
qu'elles les ont respectivement présentéeset des interprétations qu'elles
ont respectivement cherché à donner de l'article 2,alinéa 2, du Mandat?
2. Les Parties soutiennent-elles qu'il n'est pas permis à la Cour de
donner sa pro:pre interprétation de l'article, eu égardà toutes les considé
rations de dr01t pertinentes, et de statuer en conséquence sur le différend
entre les Parties?
3· En particulier, les Parties soutiennent-elles qu'il n'est pas permis
à la Cour d'interpréter l'article 2, alinéa 2, du Mandat de manière à
examiner et à apprécier tous les faits, circonstances et conditions per
tinents, tels qu'ils lui ont étéprésentés dans le dossier définitif de l'af
faire, en vue de déterminer si le défendeur s'est acquitté de ses obligations
aux termes· dudit article, et à statuer en conséquence sur le différend
entre les Parties?
Les plaidoiries sur les points de droit étant achevées, il semble oppor
tun que des réponses soient apportées à ces questions dans les meilleurs
délais. Etant donné que la Cour doit ajourner ses audiences à partir du
lendemain, il serait commode que ces réponses soient données avant
que les dépositions reprennent, c'est-à-dire au début de l'audience qui
se tiendra le mercredi 30 juin. A cette fin, la Cour donnera la parole
aux demandeurs et immédiatement ensuite au défendeur.
L'audience est levéeà I8 h
[Signatures.]
CINQUANTE ET UNIÈME AUDIENCE PUBLIQUE (23 VI 65, IO h)
Présents: [Voir audience du rs III6s. M. Badawi, absent.]
1
La Cour continue l'audition des témoins et experts .
L'audience, suspendue à II h 20, est reprise à II h 45
La Cour continue l'audition des témoins et experts 2•
L'audience est levéeà I2 h 40
[Signatures.]
1
2 Voir X, p. 154-170.
Voir X, p. 170-182. MINUTES
FIFTY-SECO::\P "UBLICHEARING(30 VI65, IO a.m.)
Present: [See hearing of 15 m 65. Judge Badawi absent.]
The PRESIDENTopened the hearing and called upon the Agent for
the Applicants to reply to the questions put by the Court on 22 June.
1
Mr. GRoss made the speech reproduced in the annex •
The PRESIDENTcalled upon the Agent for the Respondent.
Dr. VERLORENVANTHEMAAT asked that Mr. de Villiers be allowed
to address the Court.
The PRESIDENTcalled upon Mr. de Villiers.
2
Mr. de VILLIERSbegan the speech reproduced in the annex •
The Court adjourned from II.20 a.m. to rz-noon
Mr. de VILLIERScontinued the speech reproduced in the annex 3•
The Court rose at I p.m.
[Signatures.]
FIFTY-THIRD PUBLICHEARING(r VII 65, IO a.m.)
Present: [See hearing of 15 III 65. Judge Badawi absent.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
4
Mr. de VILLIERSconcluded the speech reproduced in the annex •
The Court adjourned from II.25 a.m. to II.45 a.m.
The PRESIDENTcalled upon the Agent for the Applicants.
Mr. GRoss requested an opportunity to comment on the reply of the
Respondent to the Court's questions.
The PRESIDENTsaid that the Court would hear the comments of the
Applicants at once, and that the Respondent would have a right of
reply.
Mr. GROss made the speech reproduced in the annex 5•
The PRESIDENTcalled upon Mr. de Villiers. 6
Mr. de VILLIERSmade the speech reproduced in the annex .
The Court continued the hearing of the witnesses and experts 7•
The Court rose at r p. m.
[Signatures.]
FIFTY-FOURTH PUBLICHEARING (2 VII 65, IO a.m.)
Present: [See hearing of 15 III65. Judge Badawi absent.]
The Court continued the hearing of the witnesses and experts 8•
1 See X, pp. r8J-r88.
t See X, pp. r88-rg8.
3 See X, pp. rg8-2 r1.
• See X, pp. 21r-228.
' See X, pp. 228-233.
6 See X, pp. 233-237.
1 See X, pp. 238-242.
See X, pp. 242-253. PROCÈS-VERBAUX 6s
CINQUANTE-DEUXIÈME AUDIENCEPUBLIQUE(JO VI 6 , IO h)
5
Présents: [Voir audience du rs III 6s. M. Badawi, absent.]
Le PHÉSIDENTouvre l'audience et invite l'agent des demandeurs à
répondre aux questions posées par la Cour le 22 juin.
M. GRoss prononce l'exposé reproduit en annexe 1.
Le PRÉSIDENTdonne la parole à l'agent du défendeur.
:M.VERLORENvan THEMAATprie le Président de bien vouloir donner
la parole à l\L de Villiers.
Le PRÉSIDENTdonne la parole à M. de Villiers.
2
M. de VILLIERScommence l'exposé reproduit en annexe •
L'audience, suspendue à II h 20, est reprise à I2 h
M. de VILLIERScontinue l'exposé reproduit en annexe 3•
L'audience est levéeà IJ h
[Signatures.}
CIXQUANTE-TROISIÈME AUDIEXCEPUBLIQUE( I VH65, IO h)
Présents: [Voir audience du 15 III 65. M. Badawi, absent.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
4
M. de VILLIERStermine l'exposé reproduit en annexe .
L'audience, suspendue à II h 25, est reprise à II h 45
Le PRÉSIDENTdonne la parole à l'agent des demandeurs.
M. GROSSdésire présenter des observations sur la réponse du défen
deur aux questions de la Cour.
Le PRÉSIDENT déclare que. la Cour entendra immédiatement les ob-
servations des demandeurs et que le défendeur aura le droit d'y répondre.
5
M. GRoss prononce l'exposé reproduit en annexe •
Le PRÉSIDENTdonne la parole à M. de Villiers.
M. de VILLIERSprononce l'exposé reproduit en annexe 6 •
La Cour continue l'audition des témoins et experts 7•
L'audience est levéeà IJ h
[Signatures.]
CINQUANTE-QUATRIÈMA EUDIENCEPUBLIQUE( 2 VII 65, IO h)
Présents: [Voir audience du rs III 6s. M. Badawi, absent.]
La Cour continue l'audition des témoins et experts 8•
t Voir X, p.r83-r88.
2 Voir X, p. r88-rg8.
3 Voir X. p. rg8-2rr.
4 Voir X, p. 211-228.
' Voir X, p. 228-233.
6 Voir X, p. 233-237.
7 Voir X, p. 238·242.
8 Voir X, p. 242-253.66 MINUTES
The Court adfoumed from II.25 a.m. to II.40 a.m.
1
:rhe Court continued the hearing of the witnesses and experts •
The Court rose at I p.m.
[Signatures.]
FIFTY-FIFTH PUBLIC HEARING (5 VII 65, 3 p.m.)
Present: [See hearing of 15 III 65. Judges Badawi and Gros absent.]
The Court continued the hearing of the witnesses and experts 2•
The Court adjourned from 4.20 p.m. to 445 p.m.
3
The Court continued the hearing of the witnesses and experts •
The Court rose at 6 p.m.
[Signatures.]
FIFTY-SIXTH PUBLIC HEARING (6 VII 65, IO a.m.)
Present: [See hearing of 15 III 65. Judge Badawi absent.] 4
The Court continued the hearing of the witnesses and experts •
The Court adjourned from II.2o a.m. to II.40 a.m.
The Court continued the hearing of the witnesses and experts 5•
The Court rose at I.os p.m.
[Signatures.]
FIFTY-SEVENTH PUBLIC HEARING (7 VII 65, IO a.m.}
Present: [See hearing of 15 m 65. Judge Badawi absent.]
6
The Court continued the hearing of the witnesses and experts •
The Court adjourned from II.20 a.m. to II.45 a.m.
The Court continued the hearing of the witnesses and experts 7•
The Court rose at I p.m.
[Signatures.]
• See X, pp. 253-265.
2 See X, pp. 265-28o.
3
4 See X, pp. 280-295.
See X, pp. 295-309.
' See X, pp. 309-325.
6 See X, pp. 325-340.
' See X, pp. 340-355· PROCÈS-VERBAUX 6;
L'audience, suspendue à II h 25, est reprise à II h 40
1
La Cour continue l'audition des témoins et experts •
L'audience est levéeà I3 h
[Signatures.]
CINQUANTE-CINQUIÈME AUDIENCE PUBLIQUE (5 VII 65, 15 h)
Présents: [Voir audience du 15 III 65. MM. Badawi et Gros, absents.]
La Cour continue l'audition des témoins et experts 2•
L'audience, suspendue à r6 h 20, est reprise à r6 h 45
La Cour continue l'audition des témoins et experts 3•
L'audience est levéeà I8 h
[Signatures.]
CINQUANTE-SIXIÈME AUDIENCE PUBLIQUE (6 VII 6 , IO h)
5
Présents: [Voir audience du 15 III 65. M. Badawi, absent.]
La Cour continue l'audition des témoins et experts~.
L'audience, suspendue à II h 20, est reprise à II h 40
5
La Cour continue l'audition d~s témoins et experts •
L'audience est levéeà IJ h 5
[Signatures.}
CINQUANTE-SEPTIÈME AUDIENCE PUBLIQUE (7 VII 65, IO h)
Présents: [Voir audience du 15 III 65. M. Badawi, absent.]
La Cour continue l'audition des témoins et experts 6•
L'audience, suspendue à II h 20, est reprise à II h 45
La Cour continue l'audition des témoins et experts 7•
L'audience est levéeà IJ h
[Signatures.}
1 Voir X, p. 25;:1-265.
2 Voir X, p.265-280.
3 Voir X, p. 280-295.
• Voir X, p.295-309.
5
6 Voir X, p. 309-325.
1 Voir X, p.325-340.
Voir X, p. 340-355.68 MINUTES
FIFTY-EIGHTH PUBLIC HEARING (8 VII 65, IO a.m.)
Present: [Seehearing of 15 III 65. Judge Badawi absent.]
The Court continued the hearing of the witnesses and experts 1•
The Court adjourned from n.zo a.m. to II.40 a.m.
The Court continued the hearing of the witnesses and experts 2•
The Court rose at I p.m.
[Signatures.]
FIFTY-NINTH PUBLIC HEARING (9 VII 65, IO a.m.)
Present: [See hearing of 15 III 65. Judge Badawi absent.)
3
The Court continued the hearing of the witnesses and experts •
The Court adjourned from II.2o a.m. to II.45 a.m.
The Court continued the hearing of the witnesses and experts 4•
The Court rose at I.os p.m.
[Signa!ttres.]
SIXTIETH PUBLIC HEARING (12 \'II 65, 10 a.m.)
Present: [See hearing of 15 III 65. Judge Badawi absent.]
5
The Court continued the hearing of the witnesses and experts .
The Court adjourned from II.20 a.m. to II.45 a.m.
The Court continued the hearing of the witnesses and experts 6.
The Court adjourned from I p.m. to 3 p.m.
The Court continued the hearing of the witnesses and experts 7•
T.JteCourt rose at 4.05 p.m.
[Signatures.]
SIXTY-FIRST PUBLIC HEARING (rJ VII 65, IO a.m.)
Present: [See hearing of rs III 6s. Judges Badawi and Spiropoulos
absent.]
8
The Court continued the hearing of the witnesses and experts •
1 See X, PP· 355-370.
2 See X, pp. 370-387.
3 See X, pp. 387-406.
4See X, pp. 4o6-.p6.
6' See X, pp. 427--146.
7 See X, pp. 446-466.
See X, pp. 466-479.
8 See X, PP· 479-497· PROCÈS-VERBAUX 6g
CINQUANTE-HUITIÈME AUDIENCE PUBLIQUE (8 VII 65, 10 h)
Présents: [Voir audience du 15 m 65. M. Badawi, absent.]
La Cour continue l'audition des témoins et experts •
L'audience, sz{spendue à II h 20, est reprise à II h 40
2
La Cour continue l'audition des témoins et experts •
L'audience est levéeà I3 h
[Signatttres.]
CINQUANTE-NEUVIÈME AUDIENCE PUBLIQUE (g VII 6S, 10 h)
Présents: [Voir audience du 15 III65. M. Badawi, absent.]
La Cour continue l'audition des témoins et experts 3•
L'audience, suspendue à II h 20, est reprise à II h 45
La Cour continue l'audition des témoins et experts 4•
L'audience est levéeà I3 h 5
[Signatures.)
SOIXANTIÈME AUDIENCE PUBLIQUE (12 VII fiS,IO h)
Présents: [Voir audience du 15 m 65. M. Badawi, absent.]
5
La Cour continue l'audition des témoins et experts •
L'audience, suspendue à II h 20, est reprise à II h 45
6
La Cour continue l'audition des témoins et experts •
L'audience, suspendue à I3 h, est reprise à IS h
La Cour continue l'audition des témoins et experts 7•
L'audùnce est levéeà I6 h 5
[Signatures.)
SOIXANTE ET UNIÈME AUDIENCE PUBLIQUE (13 VII 65, 10 h)
Présents: [Voir audience du 15 III45· MM. Badawi et Spiropoulos,
absents.]
La Cour continue l'audition des témoins et experts 8 .
1
Voir X, p. 355-370.
2 Voir X, p. 370-387.
3 Voir X, p. 387-406.
• Voir X, p. 406-426.
; Voir X, p. 427-446.
6 Voir X, p.446-466.
7
Voir X, p. 466-479.
s Voir X, p. 479-497·70 MINUTES
The Court adjourned from II.20 a.m. to II.40 a.m.
The Court continued the hearing of the witnesses and experts 1•
The Court adfourned from I p.m. to 3p.m.
2
The Court continued the hearing of the witnesses and experts •
The Cat~ adjoumed from 4.IO p.m. to 4-55p.m.
The Court continued the hearing of the witnesses and experts 3•
The Court rose at 6.rs p.m.
[Signatures.]
SIXTY-SECONP DUBLICHEARING (14 VU65, 10.05 a.m.)
Present: [See hearing of 15 III 65. J udges Badawi and Spiropoulos
absent.]
The Court continued the hearing of the witnesses and experts 4•
The PRESIDENTsaid that the Court would adjourn until 3 p.m. on
20 September, unless it were otherwise ordered and the Parties notifi.ed
in the meantime.
The Court rose at Io.so a.m.
[Signatures.)
SIXTY-THIRD PUBLICHEARING (20 IX 65, 3 p.m.)
Present: President Sir Percy SPENDER;Vice-President WELLINGTON
Koo; Judges SPIROPOULOS Si,r Gerald FnzMAURICE,KoRETSKYT , ANAKA,
]ESSUP, MoRELLI, PADILLANERVO,FoRSTER, GRos; Judges ad hoc,
Sir Louis MBANEFOv ,an WYK; Deputy-Registrar AQUARONE.
The PRESIDENTopened the hearing.
Referring to the sudden and unexpected death during the Court's
recess of Judge Badawi, he placed on record the Court's tribute to one
who had given most distinguished service to the Court. Judge Badawi
had been elected a Member of the Court in 1946, and had continued as
a Member thereof until the time of his death. He had been, during the
years 1955 to 1958, Vice-President of the Court. Prior to his becoming
a judge of the Court he bad rendered outstanding services to his country,
having occupied the position of Chief Legal Adviser to the Egyptian
Government between 1926 and 1940, subsequent to which he bad been
Minister of Finance, senator and l\Iinister of Foreign Affairs. He bad
been the Egyptian delegate to severa! international conferences. Special
mention might be made of his work in the establishment of the United
Nations, when he bad been Chairman for his country's delegation and
1 Sec X, PP· 497-513.
2 Sec X,pp. 513-528.
3 See X,pp. 528-548.
• Sec X, pp. 548-s58. PROCÈSV - ERBAUX
71
L'audience, suspendue à II h2o, est reprise àII h 40
1
La Cour continue l'audition des témoins et experts •
L'audience, suspend à~Iteh, est reprise à IS h
La Cour continue l'audition des témoins et experts •
L'audimce, suspendue à I6 h IO,est reprise àI6 h 55
3
La Cour continue l'audition des témoins et experts •
L'audience est levéeà I8 h I5
[Signatures.]
SOIXANTE-DEUXIÈMA EUDIENCE PUBLIQUE (14VII6 ,510 h )5
Présents: [Voir audience du 15 III 65. MM. Badawi et Spiropoulos,
absents.]
La Cour continue l'audition des témoins et experts •
Le PRÉSIDENTdéclare que la Cour suspendra ses audiences jusqu'au
20 septembre à 15 h, sauf décisioncontraire notifiéeaux Parties.
L'audience est levéeàIO hso
[Signatures.]
SOIXANTE-TROISIÈM AEUDIENCE PUBLIQUE (20 IX 65, 15 h)
Présents: sir Percy SPENDER, Président; M. \VELLINGTONKoo,
Vice-Président; M. SPIROPOULOS si,r Gerald FITZMAURICE M, M. KORET
SKY,TANAKAj,EssuP, MüRELLI,PADILLA NERVO,FoRSTER,GRos, Juges;
sir Louis MBANEFOM , . van WYK,Juges ad hoc; M. AQUARONEG ,reffier
adjoint.
Le PRÉSIDENTouvre l'audience et tient, au nom de la Cour, à rendre
hommage à la mémoired'un juge éminent, M. Badawi, décédé de manière
soudaine et inattendue pendant les vacances judiciaires. Elu en 1946,
M. Badawi est resté membre de la Cour jusqu'à sa mort, après en avoir
étévice-président de 1955 à 1958. Avant son élection, il a rendu de re
marquables services à son pays de 1926 à 1940 comme conseiller juri
dique principal du Gouvernement et au cours des annéessuivantes comme
ministre des Finances, comme sénateur et comme ministre des Affaires
étrangères. Il a représenté l'Egypte à plusieurs conférences interna
tionales. Il convient de rappeler tout spécialement le rôle qu'il a joué
dans la création des Nations Unies en tant que président de la déléga
tion de son pays et en tant que président d'un important comité chargé
de la rédaction du Statut de la Cour. Au service de la Cour, où son savoir
et sa sagesse seront très regrettés etoù son absence créera un vide diffi-
1
Voir X, p. 497-513.
3 Voir X,p.513-528.
4 Voir X, p. 528-548.
Voir X,p.548-558. MINUTES
President of an important comnùttee which had dealt with the establish
ment of the Statute of this Court. His services to the Court had been
those of a jurist of great distinction, and his knowledge and wisdom
would be greatly missed and not easy to replace. His death was a very
sorrowful event for ali who had the privilege of knowing him, and par
ticularly his colleagues on the Court, for he had been a man who not
only enjoyed their confidence, but had a special place in their affections.
The Court extended its deep sympathy to Madame Badawi and the
members of Judge Badawi's family in their great persona! sorrow.
The Court stood for one minute of silence as a tribute to ]udge Badawi's
memory
The PRESIDENTannounced that Judge Winiarski was, on doctor's
orders, obliged to rest for a few days, but expected to be able to resume
his place later in the week.
He expressed the regret of the Court at the unfortunate accident
which prevented Mr. de Villiers from being present to conduct the case
on behalf of the Respondent, and wished him a speedy recovery from
his injury. The Court had also learned with regret that ill health had
compelled Dr. verLoren van Themaat to return to his country. He had,
over very many months in The Hague, represented his country with
quiet distinction and courtesy. The Court hoped his return to South
Africa would contribute to an improvement in his health.
The Court would now resume the hearing of the witnesses and ex
perts.
The Court resumed the hearing of the witnesses and experts 1.
The Court adjourned from 3-55 p.m. to 4·I5 p.m.
The Court continued the hearing of the witnesses and experts 2•
The Court rose at 6 p.m.
[Signatures.]
SIXTY-FOURTH PUBLIC HEARING (21 IX 65, 3 p.m.)
Present: [See hearing of 20 rx 65. Judge Padilla Nervo absent.]
3
The Court continued the hearing of the witnesses and experts •
The Court adjourned from 4.20 p.m. to 4·45 p.m.
The Court continued the hearing of the witnesses and experts~.
The Court rose at 6 p.m.
[Signatures.]
1
See Xl, pp. 3-12.
2 See Xl, pp. 12-34.
3 See Xl, pp. 35·5!.
4 See XI, pp.51-67. PROCÈS- VERBAUX 73
cile à combler, il a fait preuve de hautes qualités de juriste. Sa disparition
a ététrès douloureusement ressentie par tous ceux qui avaient le privi
lège de le connaître et en particulier par ses collègues de la Cour, dont il
avait su gagner non seulement la confiance mais aussi l'amitié. A
Mme Badawi et à la famille du défunt, la Cour exprime ses plus sincères
condoléances.
La Cour observe une minute de silence à la mémoirede M. Badawi
Le PRÉSIDENTannonce que M. Winiarski doit, sur l'ordre de son
médecin, prendre quelques jours de repos mais espère êtreen mesure de
reprendre sa place sur le siège avant la fin de la semaine.
Le Président exprime les regrets de la Cour à l'occasion du malencon
treux accident qui empêche l\1.de Villiers de continuer à présenter l'af
faire pour le compte du défendeur. La Cour a également appris avec
tristesse que des raisons de santé ont obligéM. verLoren van Themaat à
retourner dans son pays. Pendant les nombreux mois qu'il a passés à
La Haye, il a représenté son gouvernement avec une distinction et une
courtoisie discrètes. La Cour souhaite que son retour en Afrique du Sud
contribue à l'amélioration de sa santé.
Le Président annonce que la Cour va reprendre l'audition des témoins
et experts.
La Cour reprend l'audition des témoins et experts 1•
L'audience, suspendue à I5 h 55, est reprise à r6 h I5
La Cour continue l'audition des témoins et experts 2•
L'audience est levéeà r8 h
[Signatures.]
SOIXANTE-QUATRIÈME AUDIENCE PUBLIQUE (zr JX 65, I5 h)
Présents: [Voir audience du 20 rx 65. M. Padilla Nervo, absent.]
La Cour continue l'audition des témoins ct experts 3.
L'attdience, suspendue à r6 h 20, est reprise à r6 h 45
La Cour continue l'audition des témoins et experts •.
L'audience est levéeà r8 h
[Signaft1res.}
1 Voir XI, p. 3-12.
2 Voir XI, p. 12-34.
3 Voir Xl, p. 35-51.
• Voir Xl, p. 51-67. MINUTES
74
SIXTY-FIFTHPUBLICHEARING(22 IX 65, IO a.m.)
Present: [See hearing of 20 IX 65.]
1
The Court continued the hearing of the witnesses and experts •
The Court adjourned from II.20 a.m. to II.45 a.m.
The Court continued the hearing of the witnesses and experts 2•
The Court rose at I p.m.
[Signatures.]
SIXTY-SIXTHPUBLICHEARING(23 IX 65, IO a.m.}
Present: [See hearing of 20 rx 65. Judge Padilla Nervo absent.]
The Court continued the hearing of the witnesses and experts 3•
The Court adjourned from II.2o a.m. to II.45 a.m.
The Court continued the hearing of the witnesses and experts 4•
The Court rose at I2.55 p.m.
[Signatures.]
SIXTY-SEVENTH PUBLICHEARING (24 IX 65, IO a.m.)
Present: President Sir Percy SPENDER; Vice-President WELLINGTON
Koo; ]udges WINIARSKr,SPIROPOULOs,SirGerald FITZMAURICE,KoRET
SKY, TANAKA, ]ESSUP, MORELLI, PADILLA NERVO, FORSTER, GROS;
]udges ad hoc Sir Louis MBANEFO,van WvK; Deputy-Registrar AQUA
RONE.
5
The Court continued the hearing of the witnesses and experts .
The Court adjourned from II.20 a.m. to II.40 a.m.
The Court continued the hearing of the witnesses and experts 6 •
The Court rose at I p.m.
[Signatures.]
SIXTY-EIGHTHPUBLICHEARING (27 lX 65, 3 p.m.)
Present: [See hearing of 24 IX 65.]
The Court continued the hearing of the witnesses and experts 7•
1 See XI, pp. 67- 81.
2 See Xl, pp. 82- g6.
' See Xl, pp. g6-IIo.
• See Xl, pp. no-125.
' See Xl, pp. 125-14L
6 See Xl, pp. qt-157·
7 See XI, pp. 157-174 PROCÈS· VERBAUX
SOIXANTE-CINQUIÈM AEUDIENCE PUBLIQUE (22 lX fiS,IO h)
Présents: [Voir audience du 20 IX 65.]
La Cour continue l'audition des témoins et experts 1•
L'audience, suspendue à II h 20, est reprise à II h 45
2
La Cour continue l'audition des témoins et experts •
L'audience est levéeà I 3 IJ
[Signatures.]
SOIXANTE-SIXIÈMA EUDIENCE PUBLIQUE (2J IX 6S, 10 h)
Presents: [Voir audience du 20 rx 65. M. Padilla Nervo, absent.]
3
La Cour continue l'audition des témoins et experts •
L'audience, suspendue à II h 20, est reprise à II h 45
La Cour continue l'audition des témoins et experts 4•
L'audience est levéeà I2 h 55
[Signatures.}
SOIXANTE-SEPTIÈMA EUDIENCE PUBLIQUE (24IX 65, IO h)
Présents: sir Percy SPENDER,Président; M. WELLINGTON Koo, Vice
Président; MM. WINIARSKY,SPIROPOULOSs ,ir Gerald FITZMAURICE,
MM. KORETSKYT , ANAKA} , ESSUP,MORELLI,PADILLANERVO,FORSTER,
GRos, Juges; sir Louis MBANEFOM , . van WYK,Juges ad hoc; M. AQuA~
RONE,Greffier adjoint.
La Cour continue l'audition des témoins et experts 5•
L'audience, suspendue à II h 20, est reprise à II h 40
6
La Cour continue l'audition des témoins et experts •
L'audience est levéeà IJ h
[Signatures.]
SOIXANTE-HUITIÈMA EUDIENCE PUBLIQUE (27 IX 65, I5 h)
Présents: [Voir audience du 24 rx 65.] 7
La Cour continue l'audition des témoins et experts •
1 Voir Xl, p.67· Sr.
2 Voir Xl, p.82- 96.
3 Voir Xl, p.96-no.
+ Voir XI, p.11o-125.
' Voir Xl, p.125·141.
7Voir XI, p. ]41·157·
Voir XI, p.157-174·]6 MINUTES
The Court adjourned from 4.20 p.m. to 4.40 p.m.
The Court continued the hearing of the witnesses and experts 1.
The Court rose at 6.05 p.m.
[Signatures.]
SIXTY-~·' PlBLIC HHHEAHING (28 IX 65, IO a.m.)
Present: [See hearing of 24 rx 65.]
The Court continued the hearing of the witnesses and experts 2•
The Court adjourned from n.zo a.m. to II.40 a.m.
The Court continued the hearing of the witnesses and experts 3.
The Court rose at I2.jO p.m.
[Signatures.}
SEVENTIETH PUBLIC HEARI~ 29 IX 65, 10 a.rn.)
Present: [See hearing of 24 IX 65.]
The Court continued the hearing of the witnesses and experts 4•
The Court adjounted from II.Zo a.m. to II.40 a.m.
The Court continued the hearing of the witnesses and experts s.
The Court rose at I p.m.
[Signatures.]
SEVENTY-FIRST PUBLIC HEARING (JO IX 65, 10 a.rn.)
Present: [See hearing of 24 IX 65.]
The Court continued the hearing of the witnesses and experts 6,
The Court adjourned from II.20 a.m. to II.40 a.m.
7
The Court continued the hearing of the witnesses and experts •
The Court rose at I p.m.
[Signatures.}
1 See Xl, pp. 174-I9r.
2 See Xl, pp. rgr-2o6.
4 See XI, pp. 2o6-2rg.
See Xl, pp. 219-234.
5 See Xl, pp. 234-250.
6 See Xl, pp. 250-267.
1 See Xl, pp. 267-284. PROCÈS-VERBAUX
77
L'audience, suspendue à I6 h 20, est reprise à I6 h 40
La Cour continue l'audition des témoins et experts 1.
L'audimce est levéeà IB h 5
[Signatures.)
SOIXANTE-NEUVIÈME AUDIENCE PUBLIQUE (28 IX 65, IO h)
Présents: [Voir audience du 24 IX 65.]
La Cour continue l'audition des témoins et experts 2•
L'audience, suspendue à II h 20, est reprise à II h 40
3
·La Cour continue l'audition des témoins et experts •
L'attdience est levéeà I2 h 50
[Signat~ms.)
SOIXA~TE-DIX IUÈDIENCE PUBLIQUE (2g IX 6 5 10 h)
Présents: [Voir audience du 24 IX 65.]
La Cour continue l'audition des témoins et experts 4.
L'audience, suspendue à II h 20, est reprise à II h 40
La Cour continue l'audition des témoins et experts 5.
L'audience est levéeà IJ h
[Signatures.]
SOIXANTE ET ONZIÈME AUDIENCE PUBLIQUE 3 o IX 6 5 IO h)
Présents: [Voir audience du 24 IX 65.]
La Cour continue l'audition des témoins et experts 6.
L'audience, suspendue à II h 20, est reprise à II h 40
7
La Cour continue l'audition des témoins et experts •
L'audience est levéeà IJ h
[Signatures.)
1Voir XI, p. I74-191.
2 Voir XI, p. rgr-ozo6.
3
4 Voir Xl, p. 206-2 rg.
Voir Xl, p. 219-234·
s Voir Xl, p. 234-250.
6 Voir XI, p. 250-267.
7 Voir Xl, p. 267-284. MINUTES
SEVENTY-SEC PU B LICHEARING(r X 65, 10 a.m.)
Present: [See hearing of 24 IX 65.] 1
The Court continued the hearing of the witnesses and experts .
The Court adjourned from n.2o a.m. to II.40 a.m.
The Court continued the hearing of the witnesses and experts 2•
The Court rose at r p.m.
[Signatures.]
SEVENTY-THIRDPUBLICHEARING(4 X 65, 3 p.m.)
Present: President Sir Percy SPENDER; Vice-President WELLINGTON
Koo; Judges WINIARSKI,Sir Gerald FrTZMAURICE,KoRETSKY, TANAKA,
jESSUP, MoRELLI, PADILLANERVO, FoRSTER, GRos; Judges ad hoc Sir
Louis MBANEFO,van WvK; Deputy-Registrar AQUARONE.
The PRESIDENTopened the hearing and announced that Judge Spi
ropoulos, under doctor's orders, would be unable to sit for a few days.
The Court continued the hearing of witnesses and experts 3.
The Court adjourned from 4.20 p.m. to 4.40 p.m.
The Court continued the hearing of the witnesses and experts 4•
The Court rose at 6 p.m.
[Signatures.]
SEVENTY-FOURTH PUBLICHEARING(5 X 65, 10 a.m.)
Present: [See hearing of 4 x 65.]
The Court continued the hearing of the witnesses and experts s.
The Court adjourned from II.20 a.m. to II.40 a.m.
The Court continued the hearing of the witnesses and experts 6•
The Court rose at I p.m.
[Signatures.]
SEVENTY-FlFTHPUBLICHEARING(6 x·65, IO a.m.)
Present: [See hearing of 4 x 65.]
The Court continued the hearing of the witnesses and experts 7•
1 See XI, pp. 284-298.
z See XI, pp. 298-315.
3 See Xl, pp. 315-332.
+ See XI, pp. 332-348.
5 See Xl, pp. 349-366.
6 See XI, pp. 366-383.
7 See XI, pp. 383-403. PROCÈS-VERBAUX 79
SOIXANTE-DOUZIÈM AEUDIENCE PUBLIQUE(r X 65, IO h)
Présents: [Voir audience du 24 IX 65.]
La Cour continue l'audition des témoins et experts 1•
L'audience, suspendue à II h 20, est reprise à II h 40
La Cour continue l'audition des témoins et experts 2•
L'audience est levéeà IJ h
[Signatures.]
SOIXANTE-TREIZIÈMA EUDIENCE PUBLIQUE (4X 65, I5 h)
Présents: sir Percy SPENDER,Président; M. WELLINGTON Koo, Vice
Président,· M. WINIARSKI,sir Gerald FITZMAURICEM , M. KoRETSKY,
TANAKA,JEssuP, MoRELLI, PADILLANERVO,FORSTER,GROS,juges;
sir Louis MBANEFO,M. van WYK, Juges ad hoc; M. AQUARONEG , ref
fier adjoint.
Le PRÉSIDENTouvre l'audience et annonce que, sur l'ordre de son
médecin, M. Spiropoulos devra s'abstenir de siéger pendant quelques
jours.
La Cour continue l'audition des témoins et experts 3•
L'audience, suspendue à I6 h 20, est reprise à r6 h 40
4
La Cour continue l'audition des témoins et experts •
L'audience est levéeà I8 h
[Signatures.}
SOIXANTE-QUATORZIÈM AUEDIENCE PUBLIQUE(S X6 , IO h)
5
Présents: [Voir audience du 4 x 65.]
5
La Cour continue l'audition des témoins et experts •
L'audience, suspendue à II h 20, est reprise à II h 40
La Cour continue l'audition des témoins et experts 6•
L'audience est levéeà IJ h
[Signatures.)
SOIXANTE-QUINZIÈM AEUDIENCE PUBLIQUE (6 X 6 5 IO h)
Présents: [Voir audience du 4 x 65.]
La Cour continue l'audition des témoins et experts 7•
1 Voi.rXI, p.284-298.
2 Voir Xl, p. 298-315.
3
4 Voir Xl, p.315-332.
5 Voir XI, p. 332-348.
Voir XI, p. 349-366.
7 Voir XI, p.366-383.
Voir XI, p.383-403.So MINUTES
The Court adjoumed from II.20 a.m. to II.40 a.m.
The Court continued the hearing of the witnesses and experts 1.
The Court rose at I p.m.
[Signatures.}
SEVENTY·SIXTH PUBLIC HEARING (7 X 65, IO a.m.)
Present: [See hearing of 4 x 65.]
The Court continued the hearing of the witnesses and experts~.
The Court adjotirned from II.20 a.m. to II.40 a.m.
3
The Court continued the hearing of the witnesses and experts .
The CMtrt rose at I p.m.
[Signatures.}
SEVENTY-SEVENTH PUBLIC HEARING (8 X 65, IO a.m.)
Present: [See hearing of 4 x 65.}
4
The Court continued the hearing of the witnesses and experts •
The Court adfattrned from II.2o a.m. to II.40 a.m.
The Court continued the hearing of the witnesses and experts 5•
The Court rose at I p.m.
[Signatures. J
SEVENTY-EIGHTH PUBLIC HEARING (II X 65, 3 p.m.)
Present: [See hearing of 4 x 65.]
The Court continued the hearing of the witnesses and experts 6•
The Court adjourned from 4.20 p.m. to 4.40 p.m.
7
The Court continued the hearing of the witnesses and experts •
The Court rose at 6 p.m.
[Signatures.}
1 See Xl, pp. 403-421.
2 See Xl, pp. 42 r-440.
4 See Xl, pp. 440-458.
3 See Xl, pp. 458-473.
See XI, pp. 473-486.
6 See XI, pp. 487-502"
7 See XI, pp. 502-517. PROCÈS- VERBAUX Sr
L'audùnce, suspendue à II h 20, est reprise à II h 40
La Cour continue l'audition des témoins et experts 1•
L'audience est levéeà IJ h
[Signaütres.]
SOIXA~TE-SEI AZUDIIÈNCE PUBLIQUE (l X 65, IO h)
Présents: [Voir audience du 4 x 65.]
La Cour continue l'audition des témoins et experts 2•
L'atdùmce, suspe1~ à IIueh 20, est reprise à II h 40
3
La Cour continue l'audition des témoins et experts •
L'audience est levéeà I3 h
[Signatures.}
SOIXANTE-DIX-SEPTIÈME AUDIENCE PUBLIQUE (8 X 6S. IO h)
Présents: (Voir audience du 4 x 65.]
La Cour continue l'audition des témoins et experts 4•
L'audience, suspendue à II h 20, est reprise à II h 40
La Cour continue l'audition des témoins et experts 5.
L'audience est levéeà IJ h
[Signatures.]
SOIXANTE-DIX-HUITIÈME AUDIENCE PUBLIQUE (II X 65, IS h)
Présents: [Voir audience du 4 x 65.]
6
La Cour continue l'audition des témoins et experts •
L'audience, suspendue à I6 h 20, est reprise à I6 h 40
La Cour continue !;audition des témoins et e~perts 7.
V a~tdie esntlevéeà I8 h
[Signatures.)
1 Voir Xl, p. 403-421.
2 Voir XI, p. 421-440.
3 Voir XI, p. 440-458.
• Voir Xl, p.458-473.
5 Voir XI, p. 473-486.
7 Voir XI, p.487-502.
Voir Xl, p. 502-517.82 MINUTES
SEVENTY-NINTH PUBLIC HEARING (12 X 65, IO a.m.)
Present: [See hearing of 4 x 65.]
1
The Court continued the hearing of the witnesses and experts •
The Court adjourned from II.25 a.m. to rr.45 a.m.
The Court continued the hearing of the witnesses and experts 2•
The Court rose at r p.m.
[Signatures.]
EIGHTIETH PUBLIC HEARING {13 X 65, IO a.m.)
Present: [See hearing of 4 x 65.]
The Court continued the hearing of the witnesses and experts 3•
The Court adjourned from II.25 a.m. to II-45 a.m.
4
The Court continued the hearing of the witnesses and experts •
The Court roseat I p.m.
[Signatures.]
EIGHTY-FIRST PUBLIC HEARING (I4 X 65, IO a.m.)
Present: [See hearing of 4 x 65.]
The Court continued the hearing of the witnesses and experts 5•
The Court adjourned from II.25 a.m. to II.45 a.m.
6
The Court continued the hearing of the witnesses and experts •
The Court rose at r p.m.
{St'gnatures.]
EIGHTY-SECOND PUBLIC HEARING (15 X 65, IO a.m.)
Present: [See hearing of 4 :x 65.]
7
The Court continued the hearing of the witnesses and experts •
The Court adjottrned from II.25 a.m. to II.45 a.m.
The Court continued the hearing of the witnesses and experts 8•
The Court rose at I2.40 p.m.
[Signatures.]
tSee Xl, pp. 517·532.
2 See Xl, pp. 532·545.
3 See XI, pp. 545·562.
• See XI, pp. 562-579.
5
See XI, pp. 579-597.
~See Xl, pp. 597-612.
8 See Xl, pp. 612-629.
See XI, pp. 629-643. PROCÈS- VERBAUX
SOIXANTE-DIX-NEUVIÈME AUDIENCE PUBLIQUE (12 X 65, 10 h)
Présents: [Voir audience du 4 x 65.] 1
La Cour continue l'audition des témoins et experts •
L'audience, suspendue à II h 25, est reprise à II h 45
La Cour continue l'audition des témoinset experts 2•
L'audience est levéeà IJ h
[Signatures.}
QUATRE-VINGTIÈME AUDIENCE PUBLIQUE (IJ X 6 5 IO h)
Présents: [Voir audience du 4 x 65.]
3
La Cour continue l'audition des témoinset experts .
L'audience, suspendue à II h 25, est reprise à II h 45
La Cour continue l'audition des témoins et experts 4•
L'audience est levéeà I] Il
[Signatures.]
QUATRE-VINGT-UNIÈME AUDIENCE PUBLIQUE (I4 X 65, IO h)
Présents: [Voir audience du 4 x 65.]
La Cour continue l'audition des témoins et experts 5•
L'audience, suspendue à II h 25, est reprise à II h 45
6
La Cour continue l'audition des témoinset experts •
L'audience est levéeà IJ h
[Signatures.]
QUATRE-VINGT-DEUXIÈME AUDIENCE PUBLIQUE (15 X 65, 10 h)
Présents: [Voir audience du 4 x 65.]
La Cour continue l'audition des témoins et experts 7•
L'audience, suspendue à II h 25, est reprise à II h 45
8
La Cour continue l'audition des témoins et experts :
L'audience est levéeà I2 h 40
rs~"gnatures.}
1 Voir XI, p. 517-532.
2 Voir XI, p. 532-545.
3 Voir XI, p. 545-562.
4 Voir Xl, p. 562-579.
' Voir XI, p. 579·597·
6 Voir XI, p. 597-6r2.
1 Voir XI, p. 6rz-629.
' Voir XI, p. 6zg-643.84 MINUTES
EIGHTY-THIRD PUBLIC HEARING (18 X 65, 3 p.m.)
Present: [Sec hearing of 4 x 65.]
The Court continued the hearing of the witnesscs and experts .
The Court adjourned from 4.20 p.m. to 4-45 p.m.
The Court continued the hearing of the witnesses and experts 2•
The Court rose at 6 p.m.
[Signatures.]
EIGHTY-FOURTH PUBLIC HEARING (19 X 65, 10 a.m.)
Present: [See hearing of 4 x 65.]
The Court continued the hearing of the witnesses and experts 3•
The Court adjourned from II.zo a.m. to II.40 a.m.
The Court continued the hearing of the witnesses and experts~
The Court rose at I2.50 p.m.
[Signatures.]
EIGHTY-FIFTH PUBLIC HEARING (20 X 65, IO a.m.)
Present: [See hearing of 4 x 65.]
The Court continued the hearing of the witnesses and experts ~.
The Court adjottrned from II.25 a.m. to II-45 a.m.
6
The Court continued the hearing of the witnesses and experts •
The Court rose at I p.m.
[Signatures.]
EJGHTY-SIXTH PVBUC HEARIKG {21 X 65, IO a.m.)
Present: [See hearing of 4 x 65.}
The Court continued the hearing of the witnesses and experts 7•
The Court adjottrned from rr.zo a.m. to II.40 a.m.
8
The Court concluded the hearing of the witnesses and experts .
The Court rose at rz.so p.m.
(Signatures.]
1See Xl, pp. 643·661.
2 See XI, pp. 661-677.
~See XI, pp. 677-694.
4
5 See XI, pp. 694·708.
See XII, pp.3·20.
6 See Xli, pp. 20·35.
7See XII, pp. 35·52.
1 See XII, pp. 52·66. PROCÈS-VERBAUX
QUATRE-VI~GT-TRO I SDIIN CEE PUBLIQUE (r8 X 65, 15 h)
Présents: [Voir audience du 4 x 65.]
La Cour continue l'audition des témoins et experts 1•
L'audience, suspendue à I6 h 20, est reprise à 16h45
La Cour continue l'audition des témoins et experts 2•
L'audience est levéeà I8 h
[Signatures.]
QUATRE-VINGT-QUATRIÈME AUDIENCE PUBLIQUE (rg X 65, 10 h)
Présents: [Voir audience du 4 x 65.]
La Cour continue l'audition des témoins et experts 3•
L'audience, suspendue à II h 2o, est reprise à II h 40
La Cour continue l'audition des témoins et experts 4•
L'audience est levéeà I2 h 50
[Signatures.}
QUATRE-VINGT-CIKQUIÈME AUDIENCE PUBLIQUE (20 X 6S, 10 h).
Présents: [Voir audience du 4 x 65.]
La Cour continue l'audition des témoins et experts 5•
L'audience, sHspend à~II h 25, est reprise à II h 45
6
La Cour continue l'audition des témoins et experts •
L'audience est levéeà IJ h
[Signatures.]
QUATRE-VINGT-sixiÈME AUDIENCE PUBLIQuE (zr x 65. roh)
Présents: [Voir audience du 4 x 65.]
La Cour continue l'audition des témoins et experts 7•
L'audience, suspendue à II h 20, est reprise à II h 45
La Cour termine l'audition des témoins et experts 8•
L'audience est levéeà I2 h 50
[Signatures.]
1 Voir Xl, p. 643-661.
2 Voir Xl, p. 6Gt-ô77.
J Voir XI, p. 677-694.
• Voir Xl, p.694·708.
5 Voir Xli, p. 3-20.
6 Voir XII, p.20-35.
1 Voir XII, p.35-52.
a Voir XII,p. 52-66.86 MINUTES
EIGHTY-SEVENTH PUBLICHEARING(26 X 65, 3 p.m.)
Present: [See hearing of 4 x 65.]
The PRESIDENTopened the hearing and called upon the Agent for
the Respondent.
Mr. BoTHAasked the President to caU upon Mr. Muller.
The PRESIDENTcalled upon Mr. Muller. 1
l\Ir. MuLLERbegan the speech reproduced in the Annex ,
The Court adjourned from 4.20 p.m. to 4.40 p.m.
2
Mr. MuLLERconcluded the speech reproduced in the Annex •
The 'PRESIDENTcalled upon Mr. de Villiers.
Mr. de VILLIERSbegan the speech reproduced in the Annex 3.
The Court rose at 6 p.m.
[Signatures.]
EIGHTY-EIGHTH PUBLICHEARING{27 X 65, IO a.m.)
Present: [See hearing of 4 x 65.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
4
Mr. de VILLIERSconcluded the speech reproduced in the Annex •
The PRESIDENTcalled upon Mr. van Rooyen.
Mr. van RooYEN began the speech reproduced in the Annex 5•
The Courl adjourned from II.20 a.m. to II.45 a.m.
6
Mr. van RooYEN continued the speech reproduced in the Annex
The Court rose at I p.m.
[5ignatures.}
EIGHTY-NINTH PUBLICHEARING(28 X 65, IO a.m.)
Present: [See hearing of 4 x 65.] .
The PRESIDENTopened the hearing and called upon Mr. van Rooyen. 7
Mr. van RooYEN concluded the speech reproduced in the Annex •
The PRESIDENTcalled upon Mr. van Heerden.
Mr. van HEERDENbegan the speech reproduced in the Annex 8 .
1 See XII, pp. 67·82.
z See XII, pp. 82-85.
3 See XII, pp. 86-97.
4 See XII, pp. 97-106.
5
See XII, pp. 107-113.
6 See XII, pp. r13-130.
7 See XII, pp. 130-139·
a See XII, pp. If0-145· PROCÈS-VERBAUX
QUATRE-VINGT-SEPTIÈMA EUDIENCEPUBLIQUE(26 X 6 5, 15h)
Présents: [Voir audience du 4 x 65.]
Le PRÉSIDEXTouvre l'audience et donne la parole à l'agent du défen
deur.
M. BoTHA prie le Président de bien vouloir donner la parole à
M. Muller.
Le PRÉSIDENTdonne la parole à M. Muller.
M. MULLERcommence l'exposé reproduit en annexe 1•
L'audience, suspendue à r6 h 20, est reprise à r6 h 40
2
M. MuLLERtermine l'exposé reproduit en annexe •
Le PRÉSIDENTdonne la parole à M. de Villiers.
M. de VILLIERScommence l'exposé reproduit en annexe 3•
L'audience est levéeà I8 h
[Signatures.]
QUATRE-VINGT-HUITIÈMA EUDIENCEPUBLIQUE(27 X65, IO h)
Présents: [Voir audience du 4 x 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
M. de VILLIERStermine l'exposé reproduit en annexe •
Le PRÉSIDENTdonne la parole à M. van Rooyen.
M. van RooYEN commence l'exposé reproduit en annexe 5•
L'audience, suspendue à II h 20, est reprise à II h 45
M. van RoOYEN continue l'exposé reproduit en annexe 6•
L'audience est levéeà I] h
[Signatures.]
QUATRE-VINGT-NEUVIÈM AEUDIENCEPUBLIQUE(28 X 65, IO h)
Présents: [Voir audience du 4 x 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. van Rooyen.
M. van RooYEN termine l'exposé reproduit en annexe 7•
Le PRÉSIDENTdonne la parole à M. van Heerden.
M. van HEERDENcommence l'exposé reproduit en annexe 8•
• Voir XII, p. 67-82.
2 Voir XII, p. 82-85.
3 Voir XII, p. 86-97.
4 Voir XII, p. 97·to6.
5 Voir XII, p. ro]-113.
6 Voir XII, p. IIJ-IJO.
7 Voir XII, p. I30-I39·
1 Voir XII, p. qo-145·88 MINUTES
The Court adjourned from II.20 a.m. to II-40 a.m.
Mr. van HEERDEKcontinued the speech reproduced in the Annex 1•
The Court rose at I2.S5 p.m.
[Signatures.]
NINETIETHPUBLICHEARIKG(29 X 65, IO a.m.)
Present: [See hearing of 4 x 65.]
The PRESIDENTopened the hearing and called upon Mr. van Heerden,
Mr. van HEERDENconcluded the speech reproduced in the Annex 2•
The PRESIDENTcalled upon 1Ir. Muller.
3
Mr. MuLLERbegan the speech reproduced in the Annex .
The Court adjourned from II.2o a.m. to II.40 a.m.
Mr. MuLLERcontinued the speech reproduced in the Annex ".
The Court rose at I p.m.
[Signaittres.}
N!NETY-FIRSTPUBLICHEARING(1 XI 65, 3 p.m.)
Present: [See hearing of 4 x 65.]
The PRESIDENTopened the hearing and called upon Mr. Muiicr.
Mr. MuLLERconcluded the speech reproduced in the Annex 5•
The PRESIDENTcalled upon Mr. de Villiers.
6
Mr. de VILLIERSbegan the speech reproduced in the Annex •
The Court adjomned from 4.20 p.m. to 4-45 p.m.
Mr. de Vn.LIEHScontinued the speech reproduced in the Annex 7•
The Court rose at 6 p.m.
[Signatttres.}
NINETY-SECOND PUBLICHEARING(2 XI 65, IO a.m.)
Present: [Sce l!Caring of 4 x 65.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers. 8
Mr. de VILLIEHS continued the speech reproduced in the Annex •
1 See XII, pp. 145-164.
t SeeXII,pp. r64·t68.
l SeeXII,pp. 169·r8r.
~ See XII, pp. 181-198.
' See XII, pp. r98-:II .
6 See XII, pp. 212-215.
1 See XII, pp. 215-230.
~ See XII, pp. 230-245· PROCÈS-VERBAUX
L'audience, suspendue à II h 20, est reprise à II h 40
M. van HEERDEN continue l'exposé reproduit en annexe 1.
L'audience est levéeà I2 h 55
[5ignatures.]
QUATRE-VINGT-DIXIÈME AUDIEXCEPUBLIQUE (2g X 6 5 IO h)
Présents: [Voir audience du 4 x 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. van Heerden.
2
M. van HEERDEN termine l'exposé reproduit en annexe •
Le PRÉSIDENTdonne la parole à M. Muller.
M. MuLLER commence l'exposé reproduit en annexe 3•
L'audience, suspendue à II h 20, est reprise à II h 40
4
M. MuLLER continue l'exposé reproduit en annexe •
L'audience est levéeà IJ h
[Signatures.}
QUATRE-VINGT-ONZIÈME AUDIENCEPUBLIQUE (I XI 65, 15 h)
Présents: [Voir audience du 4 x 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. Muller.
M. MuLLER termine l'exposé reproduit en annexe~-
Le PRÉSIDENTdonne la parole à M. de Villiers.
M. de VILLIERScommence l'exposé reproduit en annexe 6•
L'audience, suspendue à I6 h 20, est reprise à I6 h 45
M. de VILLIERScontinue l'exposé reproduit en annexe 7•
L'audience est levéeà I8 h
[Signatures.]
QUATRE-VINGT-DOUZIÈMA EUDIENCEPUBLIQUE( 2 XI 65, IO h)
Présents: [Voir audience du 4 x 65.]
Le PRÉSIDE ouvTre l'audience et donne la parole à M. de Villiers.
M. de VILLIERScontinue l'exposé reproduit en annexe 8.
1
Voir XII, p.145-164.
2 Voir XII, p. 164-168.
3 Voir XII, p. 169-1 Sr.
5 Voir XII, p.r81-198.
Voir XII, p. 198·211.
6 Voir XII, p. 212·215.
7 Voir XII, p.215-230.
a Voir XII, p.230-245.go MINUTES
The Court adjourned from II.20 a.m. to II.40 a.m.
Mr. de VILLIERScontinued the speech reproduced in the Annex 1.
The Court rose at I p.m.
[Signatures.]
NINETY-THIRD PUBLICHEARING(3 XI 65, IO a.m.)
Present: [See hearing of 4 x 65.]
The PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERSconcluded the speech reproduced in the Annex •
The PRESIDENTcalled upon Mr. Rabie.
Mr. RABIEbegan the speech reproduced in the Annex 3•
The Court adjourned from II.20 a.m. to II.40 a.m.
Mr. RABIEcontinued the speech reproduced in the Annex 4•
The Court rose at I2.55 p.m.
[Signatures.]
NINETY-FOURTH PUBLICHEARING(4 XI 65, IO a.m.)
Present: [See hearing of 4 x 65.]
The PRESIDENTopened the hearing and called upon Mr. Rabie.
Mr. RABIE concluded the speech reproduced in the Annex 5•
The PRESIDENTcalled upon Mr. Grosskopf.
Mr. GROSSKOPF began the speech reproduced in the Annex 6.
The Court adjourned from II.2o a.m. to II.45 a.m.
Mr. GROSSKOPF continued the speech reproduced in the Annex 7•
The Court rose at I p.m.
[Signatures.]
NINETY-FIFTHPUBLICHEARING(5 XI 65, IO a.m.)
Present: [See hearing of 4 x 65.]
The PRESIDE!'ITopened the hearing and called upon Mr. Grosskopf.
8
Mr. GROSSKOPF concluded the speech reproduced in the Annex .
The PRESIDENTcalled upon Mr. de Villiers.
Mr. de VILLIERSbegan the speech reproduced in the Annex 9•
1 See XII, pp. 245-261.
z See Xn, pp. 261-269.
3 See XII, pp. 270-275·
• See XII, pp. 276-288.
5
6 See XII, pp. 288·293.
7 See XII, pp. 294-303.
See XII, pp. 303-319.
8 See XII, pp. 319·325.
9 See XII, pp. 326·336. PROCÈS-VERBAUX gr
L'audience, suspendue à II h 20, est reprise à II h 40
M. de VILLIERScontinue l'exposé reproduit en annexe 1.
L'audience est levéeà IJ h
{Signatures.]
QUATRE-VINGT-TREIZIÈME AUDIENCEPUBLIQUE(3 XI 65, IO h)
Présents: [Voir audience du 4 x 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
M. de VILLIERStermine l'exposé reproduit en annexe 2.
Le PRÉSIDENTdonne la parole à M. Rabie.
M. RABIE commence l'exposé reproduit en annexe 3•
L'audience, suspendue à II h 20, est reprise à II h 40
M. RABIE continue l'exposé reproduit en annexe 4•
L'audience est levéeà I2 h 55
{Signatures.]
QUATRE-VINGT-QUATORZIÈMA EUDIENCEPUBLIQUE(4 XI 65, IO h)
Présents: [Voir audience du 4 x 65.]
Le PRÉSIDENT ouvre l'audience et donne la parole à M. Rabie.
M. RABIE termine l'exposé reproduit en annexe 5.
Le PRÉSIDENTdonne la parole à M. Grosskopf.
M. GROSSKOPFcommence l'exposé reproduit en annexe 6•
L'attdience, suspendue à II h 20, est reprise à II h 40
M. GROSSKOPFcontinue l'exposé reproduit en annexe 7.
L'audience est levéeà IJ h
[Signatures.]
QUATRE-VINGT-QUINZIÈME AUDIENCEPUBLIQUE(S XI fiS, IO h)
Présents: [Voir audience du 4 x 65.]
Le PRÉSIDENT ouvre l'audience et donne la parole à M. Grosskopf.
8
M. GROSSKOPFtermine l'exposé reproduit en annexe .
Le PRÉSIDENTdonne la parole à M. de Villiers.
M. de VILLIERScommence l'exposé reproduit en annexe 9•
1 Voir XII, p. 245-261.
2 Voir XII, p. 26r-26g.
l Voir XII, p. 270-275.
• Voir XII, p. 276-288.
5 Voir XII, p. 288-293.
6 Voir XII, p. 294-303.
7 Voir XII, p. JOJ-319·
a Voir XII, p. 319-325.
~ Voir XII, p. 326-336. MINUTES
The Court adjourned from n.2o a.m. to II-40 a.m.
Mr. de VILLIERSconcluded the speech reproduced in the Annex 1•
The PRESIDENT,before calling upon the Agent for the Respondent to
address the Court, asked the Agent for the Applicants whether he made
any application to amend the final submissions he bad already made to
the Court.
Mr. GRoss said that he did not.
The PRESIDENTcalled upon Mr. Botha, Agent for the Respondent, to
state the final submissions of the Respondent.
Mr. BoTHAmade the speech reproduced in the Annex 2•
The PRESIDENTsaid that the further proceedings had been indicated
in the statement which he had made on behalf of the Court on 24 May
rg6s. That involved and was confined to the Applicants being at liberty
to make comment upon the evidence of the witnesses and experts, and
the Respondent, on the other band, being at liberty to make its reply on
such comments on such evidence which is made by the Applicants. lt
was clearly understood that this did not involve any additional main
speeches on the part of either side but would be confmed strictly to the
terms set out in paragraphs 4 and 5 of the Court's directive of 24 Illay.
He asked the Agent for the Applicants whether he would be prepared
to proceed with his comments upon the evidence of the witnesses and
experts on 8 Novcmber at 3 o'clock.
l\fr. GRoss said that the Applicants would be prepared to do so, but
that if the Court should see fit to permit commencement of the comment
on the following moming it might result in a saving of time for the
convenience of the Court.
The PRESIDENTsaid that, if an extra day would help Mr. Gross to
shorten and confine his observations, the Court would be quite prepared
to allow him to commence on the morning of 9 November at ro o'clock.
The Court rose at I2.40 p.m.
[Signatures.]
NINETY-SIXTH PUBLIC HEARING(9 XI65, 10 a.m.)
Present: [See hearing of 4 x 65.]
The PRESIDENTopened the hearing and called upon the Agent for the
Applicants. 3
Mr. GRoss began the speech reproduced in the Annex .
The Court adjourned from n.2o a.m. to II.45 a.m.
Mr. GRoss continued the speech reproduced in the Annex •.
The Court rose at I p. m.
[Signatures.}
1
2 See XII, pp.336·347.
See XII, pp.348.
J See XII, pp. 349·3ü2.
• See XII, pp. 362·375· PROCÈS-VERBAUX
93
L'audience, suspendue à II h 20, est reprise à II h 40
1
l\1.de VILLIERStermine l'exposéreproduit en annexe • .
Le PRÉSIDENT,avant de donner la parole à l'agent du défendeur,
demande à l'agent des demandeurs s'il souhaite modifier les conclusions
finales qu'il a déja présentéesà la Cour.
M. GROSSrépond négativement.
Le PRÉSIDENTinvite M. Botha, agent du défendeur, à présenter les
conclusions finales du défendeur. 2
M. BoTHAprononce l'exposéreproduit en annexe •
Le PRÉSIDENTrappelle que la suite de la procédure a étéindiquée dans
la déclaration qu'il a faite au nom de la Cour le 24 mai 1965. Les deman
deurs auront la faculté de présenter des observations sur les dépositions
des témoins et experts et devront se borner àcela; le défendeuraura deson
côté la faculté de répondre aux observations sur les dépositions qui
auront étéfaites par les demandeurs et devra se borner à cela. Il doit
être clairement entendu que cela n'autorisera aucune des Parties à
présenter un nouvel exposé principal et que l'on devra s'en tenir stricte
ment aux termes des paragraphes 4 et 5 des instructions données par la
Cour le 24 mai.
Le Président demande à l'agent des demandeurs s'il serait en mesure
de présenter ses observations sur les dépositionsdes témoinset des experts
le 8 novembre à IS h.
M. GRoss déclare que les demandeurs seront prêts mais que, s'ils
étaient autorisés à ne commencer que le matin suivant, cela pourrait
faire gagner du temps à la Cour.
Le PRÉSIDENTdéclare que, si un délai supplémentaire d'un jour doit
permettre à l\L Gross de raccourcir et limiter ses observations, la Cour
l'autorisera volontiers à commencer le 9 novembre à roh.
L'audience est levéeà I2 h 40
[Signatures.]
QUATRE-VI:-:GT-SEIZIÈM AEUDIENCE PUBLIQUE (9 XI 65, IO h)
Présents: [Voir audience du 4 x 65.]
Le PRÉSIDENT ouvre l'audience et donne la parole à l'agent des deman
deurs.
3
M. GRoss commence l'exposéreproduit en annexe •
L'audience, suspendue à II h 20, est reprise à II h 45
l\fGRoss continue l'exposéreproduit en annexe 4•
L'audience est levéeà IJ h
[Signafttres.]
• Voir xn, p. 336-347.
2 Voir xn, p. 348.
3 Voir XII,p. 349-362.
• Voir XII, p. 362-375·94 MINUTES
NINETY·SEVENTP HUBLICHEARING (IO XI 65, IO a.m.)
.Present: (See hearing of 24 IX 65.]
The PRESIDENTopened the hearing and called upon Mr. Gross,
Mr. GRoss continued the speech reproduced in the Annex 1.
The Court adjourned from II.20 a.m. toII-40 a.m.
Mr. de VILLIERSsaid that the Respondent had presented the facts
parti y in the form of oral testimony and partly in the form of argument.
As far as the Respondent was concerned, there would be no objection
whatsoever to the Agent for the Applicants dealing with the new material
in both respects, whether it could technically be classified as evidence
or not.
The PRESIDENTsaid that was a matter entirely for Mr. Gross. As the
documents in question had been put in subsequent to the oral testimony,
such comments as he cared to make on them would be regarded as
within hisright to comment.
Mr. GRoss concluded the speech reproduced in the Annex 2•
The PRESIDENTasked the Agent for the Respondent whether he
would be ready to proceed on the following day.
Mr. BOTHAsaid that Respondent's counsel would welcome one full
day in order to complete the preparation of their comments.
The PRESIDENTsaid that the next hearing would be held at 10 a.m.
on 12 November.
The Court rose atI2 p.m.
[Signatures.]
NINETY·EIGHTH PUBLICHEARING (12 XI 65, IO a,m,)
Present: [See hearing of 24 IX 65.J
The PRESIDEKTopened the hearing and said that he wished to put a
question to l\Ir. de Villiers for clarification before he commenced his
address upon the comments made by the Applicants.
The Parties would recall that on 24 May, when certain procedure had
been laid down, it had been stated that the request of the Respondent
for an inspection in loco would not be deliberated upon by the Court
until all evidence bad been called and the addresses of the Parties had
concluded. That point of time was about to arrive, and the question he
would ask was in relation to the proposai itself, which bad been divided
into a number of parts, the first part being divided into two sub·parts.
Was the proposai for inspection an indivisible proposai, or was it a
separate proposai in relation to each particular part or sub-part?
Mr. de VILLIERSsaid that it had not been intended to be indivisible as
far as the Court's possible decisions in regard thereto might be concerned;
in particular, the invitation in respect of a possible inspection in South
West Africa and a possible limited visit to South Africa had not been
made conditional upon the Court visiting any other part of Africa.
The Respondent had emphasized that it considered it advisable for
1See XII,pp. 375·390.
2See XII,pp. 390·393· PROCÈS-VERBAUX 95
QUATRE-VINGT-DIX-SEPTIÈA MUEDIENCE PUBLIQUE (ro Xl 65, IO h)
Présents: [Voir audience du 24 rx 65.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. Gross.
M. GROSScontinue l'exposéreproduit en annexe 1•
L'audience, suspendue à II h 20, est reprise II h 40
M. de VILLIERSdéclare que le défendeur a présentéles faits en partie
dans les dépositions et en partie dans ses plaidoiries. Il ne voit pour sa
part nulle objection à ceque l'agent des demandeurs examine les nouveaux
documents sous ces deux rapports, qu'il soit techniquement possible ou
non de les ranger dans la mêmecatégorie que les dépositions.
Le PRÉSIDENT déclarequ'il appartient à M. Gross d'en décider.Comme
les documents dont il s'agit ont étéprésentésà la suite des dépositions,
les observations que M. Gross voudra formuler à leur sujet seront consi
déréescomme conformes à son droit de présenter des commentaires.
M. GRoss termine l'exposéreproduit en annexe •
Le PRÉSIDENTdemande à l'agent du défendeur s'il est prêtà reprendre
la parole le lendemain.
M. BOTHAdéclareque le conseil du défendeurserait heureux de disposer
d'une journée entière afin d'achever la préparation de son exposé.
Le PRÉSIDENTdéclare que la prochaine audience se tiendra le 12 no
vembre à IO h.
L'audience est levéeà I2 h
[Signatures.]
QUATRE-VINGT-DIX-HUITIÈA MUEDIENCE PUBLIQUE (12 XI 65, IO h)
Présents: [Voir audience du 24 IX 65.]
Le PRÉSIDENTouvre l'audience et annonce que, avant que M. de
Villiers ne commence son exposésur les observations faites par les deman
deurs, il désirelui demander certains éclaircissements.
Les Parties se souviennent que le 24 mai, en faisant connaître la procé
dure adoptée, la Cour a indiqué qu'elle ne délibérerait sur la requête
du défendeur relative à une visite sur les lieux qu'après que tous
les témoins et experts auraient étéentendus et que les Partiesauraient
achevéleurs plaidoiries. Ce moment va bientôt arriver et la question que
le Président désireposer a trait à la proposition dont il s'agit, proposition
divisée en plusieurs parties dont la première est elle-mêmedivisée en
deux sections. La proposition relative à une visite sur les lieux est-elle
indivisible ou chacune de ses parties ou sections correspond-elle à une
proposition distincte?
M. de VILLIERSdéclare que cette proposition n'a pas été conçue
comme indivisible quant aux décisionsque la Courpourrait prendreàson
sujet; en particulier, l'invitation relative à une visite éventuelle du Sud
Ouest africain et à une visite limitée éventuelle de l'Afrique du Sud
n'était pas subordonnée à la visite d'une autre régiond'Afrique.
Le défendeura souligné,motifs à l'appui, qu'ilserait àson avis opportun,
1 Voir XII,p.375-390.
2 Voir XII, p. 390-393.g6 MINUTES
the reasons it had given for the Court, if it decided togo to South West
Africa and possibly South Africa also, to see sorne other parts of Africa,
and it had been submitted very strongly that it was the Respondent's
attitude that, for the reasons given, a decision togo to South West Africa
alone, or to South West Africa and South Africa alone, would in the
circumstances be unwise and possibly prejudicial to the position of the
Respondent. However, those had been purely submissions made to the
Court, and not conditions intended to tie the hands of the Court in
any way.
The PRESIDENTasked the Agent for the Applicants whether there was
any comment which he desired to make which he bad not already made.
Mr. GRoss said he thought not.
The PRESIDENTcalled upon Mr. de Villiers.
i\Ir. de Vtr.:LIERbegan the speech reproduced in the Annex 1•
The Court adjourned from II.20 a.m. to II.45 a.m.
2
Mr. de VILLIERScontinued the speech reproduced in the Annex •
The Court rose at I p.m.
[Signatures.]
NINETY-NI:-ITH PUBLIC HEARING (15 XI 65, 3 p.m.)
Present: [See hearing of 24 IX 65. Sir Louis .Mbanefo absent.]
The PRESlDENTopened the hearing and announced that Judge Sir
Louis Mbanefo was unable to sit that day. He called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the Annex 3•
The Court adjottrned from 4.20 p.m. to 4.40 p.m.
Mr. de VILLIERSconcludecl the speech reproduced in the Annex 4•
The PRESIDENTsaid that before closing the present phase of the
proceedings, he wished to convey to Agents and counsel for the Parties
the thanks of the Court for the assistance they bad given it in their
presentation of their respective cases. Through many months they had,
with care, courtesy and efficiency, presented the views of their respective
Governments. Members of the Court and the representatives of the
Parties had grown used to seeing one another, and when the voices of
advocacy in these cases were stilled and questions from the judges were
no more, he expected they would often remember one another.
These cases were of great importance, not only for the States directly
involved. With the vast amount of evidence and documentation and
with the number of issues to be determined, theywere, he did not doubt,
the heaviest that had been submitted to this Court or its predecessor.
Certainly they were the most protracted. The Court was indebted to the
Agents and counsel on both sides who, over a long period of time, had
addressed their arguments to it. If, as counsel on both sides had been
kind enough to say, the Court has been patient, that was not only what
1
2 See XII, pp. 394-408.
See XII, pp. 408-423.
3 See XII, pp. 423-438.
• See XII, pp. 438-453. PROCÈS-VERBAUX . 97
si la Cour décidait d'aller au Sud-Ouest africain.et éventuellement en
Afrique du Sud, qu'elle visitàt d'autres régionsd'Afrique et il a indiqué
très clairement, motifs à l'appui, qu'il estimait qu'une décision d'aller
seulement au Sud-Ouest africain, ou seulement au Sud-Ouest africain
et en Afrique du Sud, serait en l'occurrence peu sage et pourrait être
préjudiciable à la position du défendeur. Toutefois, il s'agissait seulement
là d'arguments présentésà la Cour et non de conditions destinées à la
lier en quoi que ce fût.
Le PRÉSIDE::-rd Temande à l'agent des demandeurs s'il désire présen-
ter des observations qu'il n'aurait pas encore faites.
M. GROSSrépond négativement.
Le PRÉSIDENTdonne la parole à M. de Villiers.
~L de VILLIERScommence l'exposéreproduit en annexe .
L'audience, suspendue à II h 20, est reprise à II h 45
M. de VILLIERScontinue l'exposéreproduit en annexe 2•
L'audience est levéeà IJ h
[Signatures.]
QUATRE-VINGT-DIX-NEUVIÈM AUEDIENCE PUBLIQUE(15 XI 65, 15 h)
Présents: [Voir audience du 24 rx 65. Sir Louis Mbanefo, absent.]
Le PHÉSIDENTouvre l'audience et annonce que sir Louis Mbanefo
n'assistera pas à l'audience. Il donne la parole à M. de Villiers.
M. de VrLLIEHScontinue l'exposéreproduit en annexe 3.
L'audience, suspendue à I6 h 20, est reprise àI6 h 40
4
M. de VILLIERStermine l'exposéreproduit en annexe •
Le PRÉSIDENTdéclare que, avant de clore la présente phase de la
procédure, il désire, au nom de la Cour, remercier les agents ct conseils
des Parties du concours qu'ils lui ont prêtéen présentant leurs thèses.
Pendant de nombreux mois, ils ont exposéavec soin, courtoisie et effica
cité les vues de leurs gouvernements. Les membres de la Cour et les re
présentants des Parties ont pris l'habitude de se voir et, lorsque leurs
voix se seront tues, ils penseront encore souvent les uns aux autres.
Ces affaires sont d'une grande importance, et point seulement pour
les Etats directement intéressés.Si l'on considère l'ampleur du dossier
et de la documentation ainsi que le nombre des questions à trancher,
on ne peut douter qu'elles soient les plus lourdes dont la Cour actuelle et
sa devancière aient étésaisies. Ce sont certainement les plus longues.
La Cour est reconnaissante aux agents et conseils des deux Parties, qui,
pendant des mois, lui ont exposé leurs arguments. Si, comme les re
présentants des deux Parties ont bien voulu le dire, la Cour a fait preuve
1 Voir XII, p. 394-408.
2 Voir XII, p. 408-423.
l Voir XII, p. 423-438.
4 Voir XII, p. 438-453.g8 MINUTES
was properly due to Agents and counsel who appeared before it, but
was also the very essence of the judicial function. Haste in judgment
was destructive of justice.
On behalf of the Court he wished Agents and counsel full enjoyment
of the recess from their labours which was now theirs. He asked the
Agents to hold themselves at the disposai of the Court to furnish any
additional information which the Court might require. Subject to this
and to any order or direction which the Court might hereafter make,
he then declared the oral proceedings dosed. The Court would communi
cate with the Agents in the usual way and would notify them in due time
of any public sitting to be held for the delivery of judgment or for any
other purpose.
The Court rose atj.jo p.m.
[Signatures.]
HUNDREDTH PUBLICHEARING( 29 XI 65, 3 p.m.)
Present: [See hearing of 24 IX 65.]
The PRESIDENTstated that the Court was assembled to give its decision
on the request made by the Respondent on 30 March rg65, during the
course of the oral proceedings in the South West A/rica cases, whereby
it had been proposed that the Court should make an inspection in loco.
On 24 May rg65, when it had ruled on the further procedure to be
followed in the South West A/rica cases in relation to the facts, the Court
had informed the Parties that the request of the Respondent for an
inspectionin loco would not be deliberated upon until after all evidence
had been called and the addresses of the Parties had been concluded.
The Court bad now deliberated upon the request, and made the Order
of 29 November 1965.
The PREsiDENTread the text of the Order.
The Cottrt rose at J.Io p.m.
[Signaüms.}
YEARrg66
FIRSTPUBLICIIEARING (2! III66, 3 p.m.)
Present: President Sir Percy SPENDER; Vice-President WELLINGTON
Koo; ]udges WrNIARSKI, SPIROPOULOS,Sir Gerald FITZMAURICE,
KoRETSKY,TANAKAB , usTAMANTE v RIVERa, ]EssuP, MoRELLI,PADILLA
NERVO,FoRSTER,GRos, AMMOUN;Deputy-Registrar AQUARONE.
The PRESIDENTopened the sitting and said that the Court, which was
then engaged in its deliberations on the South West Africa cases between
Ethiopia and South Africa and Liberia and South Africa, had inter
rupted its work on those cases in order to hold a public sitting for the
purpose of installing a newly elected Judge.
On 16 November 1965 the General Assembly and the Security Council
of the United Nations had elected 1\LFouad Ammoun of Lebanon to fill PROCÈS- VERBAUX 99
de patience, ce n'est point seulement que cela est dû aux agents et
conseils qui plaident devant elle; cela est aussi de l'essence mêmede la
fonction judiciaire. Tout jugement hâtif est fatal à la justice.
Au nom de la Cour, le Président souhaite aux agents et conseils de
profiter pleinementd'un repos bien gagné. Il prie les agents de sc tenir à
la disposition de la Cour pour fournir à celle-ci les renseignements com
plémentaires dont elle pourrait avoir besoin. Sous cette réserve et sous
réserve detoute ordonnance ou directive éventuelle de la Cour, il déclare
close la procédure orale. La Cour communiquera avec les agents de la
manière habituelle et les avertira en temps voulu de toute audience
publique qu'elle déciderait de tenir pour la lecture de l'arrêt ou pour
toute autre fin.
L'audience est levéeà I7 h 50
[Signatures.]
CENTIÈME,\uDIENCEPUBLIQUE(29 Xl 65, 15 h)
Présents: [Voir audience du 24 rx 65.]
Le PRÉSIDENTannonce que la Cour se réunit pour rendre sa décision
sur la demande présentéepar le défendeur le 30 mars rg65, au cours de
la procédure orale dans les affairesdu Sud-Ouest africain, et tendant à
ce que la Cour procède à une visite sur les lieux.
Le 24 mai 1965. en faisant connaître ses décisions sur la procédure à
suivre dans lesaffaires du Sted-Ouestafricain au sujet des points de fait, la
Cour ainforméles Parties qu'elle ne délibéreraitr la requêtedu défendeur
relativeà une visite sur les lieux qu'après que tous les témoins et experts
auraient étéentendus et que les Parties auraient achevé leurs plaidoiries.
Après en avoir délibéré,la Cour rend une ordonnance en date du
29 novembre 1965.
Le PRÉSIDENTlit le texte de l'ordonnance.
L'audience est levéeàIS h IO
[Signatteres.}
ANNÉErg66
PREMIÈREAUDIENCE PUBLIQUE(21 III66, 15 h)
Présents: sir Percy SPE:-<DERP ,résident; M. \VELLINGTON Koo, Vice
Président;. MM. \VINIARSKI, SPIROPOULOSs ,ir Gerald FITZMAURICE,
MM. KoRETSKY,TANAKA,BusTAMANTE Y RrvERo, jESSUP, MoRELLI,
PADILLA NERVO, FORSTER,GRos, AMMOUN,Juges; M. AQUARONE,
Greffieradjoint.
Le PRÉSIDENTouvre l'audience et déclare que la Cour, qui poursuit son
délibérésur les affaires duud-Ouest africain entre l'Ethiopie et l'Afrique
du Sud, le Libéria et l'Afrique du Sud, a interrompu ses travaux pour
tenir une audience publique au cours de laquelle elle installera un juge
nouvellement élu.
Le r6 novembre 1965, l'Assemblée généraleet le Conseil de sécurité
des Nations Unies ont élu M. Fouad Ammoun (Liban) au poste laissélOO MINUTES
the vacancy created by the death on 4 August rg65 of 1udge Badawi.
Judge Ammoun, who was present on the Bench, was ready to take up
his duties as a Member of the Court but before doing so he was required
by Article20 of the Statuteofthe Court to make a solemn declaration in
open Court that he would exercise his powers impartially and conscien
tiously. He called upon 1udge Ammoun to make the declaration.
The Court rose
1 udge AMMOUtm > ade the declaration.
The Court sat
The PRESIDENT placedon record the declaration made 1udge Ammoun
and declared hirn duly installed as 1udge of the Court.
The PRESIDENTsaid that Judge Ammoun, not having been a member
of the Court at the time when the arguments of the Parties were presented
to the Court in the South West A/rica cases, would not be able to partici
pate in the work of the Court on those cases.
There being no other matter to come before the Court at that time, he
declared the sitting closed.
The Court rose at J.os p.m.
[Signatures.]
SECOND PUBLICHEARING (r8 VII66, 3 p.rn.)
Present: President Sir Percy SPENDER; Vice-President WELLINGTON
Koo; ]udges WINIARSKI, SPIROPOULOS,Sir Gerald FrrzMAURICE,
KORETSKY,TANAKA,jESSUP, MORELLI,PADILLANERVO, FORSTER,
GRos; ]udges ad hoc Sir Louis MBANEFOv ,an WYK; Registrar AQUARONE.
Also present:
For the Government of Ethiopia:
H.E. Dr. Tesfaye GEBRE-EGZY
The Honourable Ernest A. GROSS,member of the 'New York Bar,
as Agents;
The Honourable Edward R. MOORE,Under Secretary of State of
Liberia,
Mr. Keith HIGHET,member of the New York Bar,
Mr. Frank G. DAWSON,member of the New York Bar,
as Counsel.
For the Government of Liberia:
H.E. Mr. Nathan BARNES,
The Honourable Ernest A. GROSS,member of the New York Bar,
as Agents;
The Honourable Edward R. MOORE,Under Secretary of State of
Liberia,
as Agent and Counsel;
Mr. Keith HIGHET,member of the New York Bar,
Mr. Frank G. DAWSON,member of the New York Bar,
as Counsel. PROCÈS-VERBAUX IOI
vacant par le décèsde M. Badawi survenu le 4 août 1965. M. Ammoun
est prêt à assumer ses fonctions en tant que membre de la Cour mais
l'article0 du Statut de la Cour exige qu'avant de le faire il prenne en
séance publique l'engagement solennel d'exercer ses attributions en
pleine impartialitéet en toute conscience. Il invite M. Ammoun à pro-
noncer sa déclaration. ·
- Les juges se lèvent
l\1. AMMOU:- prononce sa déclaration.
Les juges s'assoient
Le PRÉSIDENT donne officiellement acte à M.Ammoun de l'engagement
pris par lui et le déclare dûment installé comme juge à la Cour. Il ajoute
que M. Ammoun n'ayant pas siégéau moment où les Parties ont présenté
leur argumentation à la Cour dans les affaires du Sud-Ouest africain, il ne
sera pas en mesure de prendre part aux travaux de la Cour dans lesdites
affaires.
La Cour n'étant saisie d'aucune autre question en état d'êtretraitée,
le Président déclare l'audience levée.
L'audience est levéeà I5 h 5
[Signatures.}
DEUXIÈMEAUDIENCE PUBLIQUE(r8 VII 66,I5 h)
Présents: sir Percy SPENDER,Président, M. WELLINGTON Koo, Vice
Président; MM.WINIARSKI,SPIROPOULOS si,r Gerald FrTZMAURICE , M.
KoRETSKY,TANAKA],EssuP, MoRELLI,PADILLA NERVO,FoRSTER,GRos,
Juges; sir Louis MBANEFOM , . van WYK, Juges ad hoc; M. AQUARONE,
Greffier.
Présentségalement:
Pour le Gouvernement éthiopien:
S. Exc. M. Tesfaye GEBRE-EGZY,
L'honorable Ernest A. GRoss, membre du barreau de New York,
comme agents;
L'honorable Edward R. MooRE, sous-secrétaire d'Etat du Libéria,
M. Keith HIGHET,membre du barreau de New York,
M. Frank G. DAWSON,membre du barreau de New York,
comme conseils.
Pour le Gouvernement libérien:
S. Exc. M. Nathan BARNES,
L'honorable Ernest A. GRoss, membre du barreau de New York,
comme agents;
L'honorable Edward R. MooRE, sous-secrétaire d'Etat du Libéria,
comme agent et conseil;
M. Keith HIGHET,membre du barreau de New York,
M. Frank G. DAWSON,membre du barreau de New York,
comme conseils.102 MINUTES
For the Government of South A/rica:
Dr. J. P. verLoren van THEMAAT,S.C.,ProfessorofinternationalLawat
the University of South Africa and Consultant to the Department of
Foreign Affairs,
Mr. R. McGREGORD , eputy Chief State Attorney,
Mr. R.F. BOTHA,Department of Foreign Affairs and Advocate of the
Supreme Court of South Africa,
as Agents;
Mr. D. P. de VILLIERS, s.e., member of the South African Bar,
Mr. G. van R. MuLLER, s.e.,member of the South African Bar,
Dr. P.J. RABIE, s.e.,member of the South African Bar,
Mr. E. M. GROSSKOPFm , ember of the South African Bar,
Dr. H. J.O. van HEERDEN,member of the South African Bar,
Mr. P. R. van RooYEN, member of the South African Bar,
as Counsel;
Mr. H. J. ALLEN,Department of Bantu Administration and Develop
ment,
Mr. H. HEESE, Department of Foreign Affairs and Advocate of the
Supreme Court of South Africa,
as Advùers.
The PRESIDENT opened the hearing and stated that the Court had met
to deliver its Judgment in the South West Africa cases brought before
the Court on 4 November 1960 by Applications of the Governments of
Ethiopia and Liberia against the Government of South Africa.
The PRESIDENT read the English text of the Judgment and called upon
the Registrar to read its operative provision in French.
The REGISTRAR read the French text of the operative provision.
The PRESIDENTstated that he had appended a Declaration to the
Judgment. Judge l\Iorelli and Judge ad hoc van Wyk appended Separate
Opinions, Vice-President Wellington Koo, Judges Koretsky, Tanaka,
Jessup, Padilla Nerva, Forster and Judge ad hoc Sir Louis Mbanefo
appended Dissenting Opinions.
In order that the decision of the Court should be made known as soon
as possible,and because of the delay which would have been involved
had the reading of the Judgment been postponed until it and the Separate
and Dissenting Opinions were printed, it had been considered advisable
to read the Judgment from a roneoed text which contained the Separate
and Dissenting Opinions in the original language only. The normal
printed edition, which would be published in approximately seven weeks'
time, would contain both the English and French texts of the Separate
and Dissenting Opinions.
The Court rose at 5 p.m.
(Signed) Percy C. SPENDER,
President.
(Signed) S. AQUARONE,
Registrar. PROCÈS-VERBAUX 103
Pour le Gouvernement sud-africain:
~1J. p. VERLOREN van THEMAAT s'.e.professeur de droit international
à l'Université d'Afrique du Sud, consultant auprès du département des
Affaires étrangères,
M. R. i\lcGREGOR,Chief State Attorney adjoint,
M. R. F. BOTHA,du département des Affaires étrangères, avocat à la
Cour suprêmed'Afrique du Sud,
comme agents;
.11. . P. de VILLIERS, s.e.,membre du barreau d'Afrique du Sud,
M. G. van R. MULLER, s.e..membre du barreau d'Afrique du Sud,
M. P.J. RABIE, s.e.' membre du barreau d'Afrique du Sud,
M. E. M. GROSSKOPFm , embre du barreau d'Afrique du Sud,
M. H. J.O. van HEERDEN,membre du barreau d'Afrique du Sud,
M. P. R. van RoOYEN,membre du barreau d'Afrique du Sud,
comme conseils;
J\1.H. J. ALLEN,du département de l'Administration et du Développe
ment bantous,
M. H. HEESE, du département des Affaires étrangères, avocat à la
Cour suprêmed'Afrique du Sud,
comme conseillers.
Le PRÉSIDENTdéclare l'audience ouverte et dit que la Cour se réunit
pour rendre son arrêtdans les affaires du Sud-Ouest africain, introduites
devant la Cour le 4 novembre Ig6o par requêtesdes Gouvernements de
l'Ethiopie et du Libéria contre le Gouvernement de l'Afrique du Sud.
Le PRÉSIDENTdonne lecture du texte anglais de l'arrêtet invite le
Greffier à donner lecture du dispositif en français.
Le GIŒFFIERlit en français le dispositif de l'arrêt.
Le PRÉSIDENT déclare qu'il a joint à l'arrêtune déclaration. M. Morelli,
juge,et M. van Wyk, juge ad Jwc,y ont joint les exposésde leur opinion
individuelle.. Wellington Koo, Vice-Président, MM.Koretsky, Tanaka,
Jessup, Padilla Nervo et Forster, juges, et sir Louis Mbanefo, juge ad hoc,
y ont joint les exposés de leur opinion dissidente.
Afin que la décision dela Cour soit connue le plus tôt possible et en
raison des retards qui seraient intervenus si le prononcé avait dû être
remis jusqu'à l'achèvement de l'impression de l'arrêt ct des opinions
individuelleset dissidentes, il a étéjugé opportun de procéder à la lec
ture de l'arrêt sur un texte polycopié, où les opinions individuelles et
dissidentes ne figurent que dans leur langue originale. L'éditionimprimée
ordinaire, quisortira de presse sept semaines plus tard environ, contien
dra les textes français et anglais des opinions individuelles et dissidentes.
L'audience est levéeà I7 h
Le Président,
(Signé) Percy C. SPENDER,
Le Greffier,
(Signé) S. AQUARONE. ANNEXTOTHE MINUTES
ANNEXEAUX PROCÈs-VERBAUX
1. STATEMENT BY MR. GROSS
AGENT FOR THE GOVERNMENTS OF ETHIOPIA AND LIBERIA
AT THE PUBLIC HEARING OF 18 MARCH 1965
l\TrPresident and honourable Members of the Court, appearance for
the second phase of the South West Africa cases is attended by that
special sense of responsibility and of honour with which any advocate
must be imbued when pleading at the bar of the High Court of the na
tions. It has likewise been a source of pride and of honour to have been
associated withy colleague Agents, His Excellency Ambassador Tesfaye
Gebre-Egzy of Ethiopia and His Excellency Ambassador 1\'athan Barnes
of Liberia. Ambassador Tesfaye and Ambassador Barnes are in Court
today and, with your permission, Mr. President, may 1 have the honour
to introduce Ambassador Barnes to make a very bnef statement? 2. STATEMENT BY MR. BARNES
AGENT OF THE GOVERNMENTS OF ETHIOPIA AND LIBERIA
AT THE PUBLIC HEARING OF 18 MARCH Ig6S
Mr. President and honourable Members of the Court, it is with profound
appreciation that His Excellency Dr. Tesfaye, Agent of Ethiopia, and
I welcome the opportunity and privilege of paying our respects to this
honourable Court at the commencement of oral proceedings in the South
West Africa cases.
The honourable President of the Court, in his opening address on
l'llonday,caUed to mind that this is the twentieth anniversary year of the
United Nations, of which this Court is the judicial organ. The United
Nations, we believe: represents the co-operative partnership of nations
for the establishment of a common human ideal in terms of peace,
social justiceand higher standards for ali, and over the years, from its
inception, this world Organization has striven to respond to the demands
and realities of our world. And it is in this year, Mr. President, that
issues of profound importance to the history and meaning of the rule of
law are presented to this honoumble Court for adjudication.
It is because the Governments of Ethiopia and Liberia have an
abiding respect for the rule of law that they appear before this Court,
the highest institution in international law, as Applicants in these
proceedings-proceedings, Sir, which are of the highest interest and
significance to the advancement of the welfare of the people of South
West Africa.
l\Ir. President, it is with a deep sense of honour that the Governments
of Ethiopia and Liberia are exercising their responsibilities as members
of the commwlÏty of nations in instituting these proceedings before this
honourable Court.
Thank you, Mr. President. 3· ARGUMENT OF MR. GROSS
AGENT FOR THE GOVERNMENTS OF ETHIOPIA AND LIBERIA
AT THE PUBLIC HEARING OF r8 MARCH 1965
Mr. President, with your permission 1 should like to introduce my
associates, who appear with me as counsel in these proceedings: the
Honourable Edward R. Moore, Under Secretary of State of Liberia, and
Mr. Keith Highet, a member of the Bar of the State of New York, in
the United States of America.
I speak for aU my colleagues, as weil as for myself, when 1 say that
the satisfaction of appearing before the Court is enriched by the know
ledge that this lengthy litigation, consequent upon an even longer
protracted dispute, now reaches its climax, with culmination in sight.
Our sense of responsibility is quickened also by awareness that seldom
inthe history of judicial administration can there have been involved
legal issues,the determination of which more profoundly will affect the
"material moral well-being and the social progress" of a multitude of
individual human persans. These individuals, whose vital interests are
at issue and at stake in these proceedings, are, of course, those individual
persans who, in the Mandate for South West Africa, "made at Geneva
on the r7th day of December, rgzo", are described collectively as the
"inhabitants of the terri tory subject to the present Mandate". In these
Oral Proceedings, as in the written pleadings, we shall refer to Ethiopia
and Liberia as the "Applicants", and to the Republic of South Africa
either as the "Mandatory" or as the "Respondent".
The history-making import of the pcnding cases requires little elabora
tion. The Applicants have not sought judicial recourse in arder to
requite a narrow material or selfish interest peculiar to themselves.
They seek recourse to this honourable Court which. under the plan of the
Mandate, fumishes-and I quote from the Judgment of rg6z-furnishes
"the final bulwark of protection ... against possible abuse or breaches
of the Mandate". The Applicants' legal interest encompasses nothing
Jess than observance by the Respondent of the totality of its legal
obligations under the "sacred trust" of the Mandate.
These obligations were freely undertaken when the Mandate was
"conferred upon His Britannic Majesty to be exercised on his behalf by
the Government of the Union of South Africa"; and when His Britannic
Majesty, for and on behalf of the Respondent, "agreed to accept the
Mandate" and undertook, in its terms, "to exercise it on behalf of the
League of Nations", in accordance with the provisions of the Mandate.
Mr. President, the Applicants are deeply sensible of the fact that
the legal interests which they assert in these proceedings are not uniquely
their own, and that the legal interests of a wider community, of which
they form a part, also are deeply involved.
As this honourable Court observed in its Judgment of zr December
rg6z on the Preliminary Objections phase of these proceedings:
"behind the present dispute there is another and similar disagree
ment on points of law and fact-a similar conftict of legal views
and interests-between the Respondent on the one hand, and theI08 SOUTH WEST AFRICA
other Members of the United Nations, holding identical views with
the Applicants, on the other hand". (I.C.J. Reports rg62, p. 345.}
This fact, of course, does not modify or circumscribe the legal nature
of the Applicants' interest in effecting compliance with the mandate
obligations. On the contrary, Mr. President, we submit that it serves to
endow their legal interest with an added dimension of significance to
the organized international community.
The Applicants, along with Respondent, are Parties to the Charter
of the United Nations, the twentieth anniversary of whose birth is
being marked even while this High Court hears the Parties to these
proceedings.
The institution by the Applicants of the cases at bar, in which they
seek a solution by judicial seUlement of the long-continued dispute
which has arisen between them and Respondent, corresponds to their
rights under the Mandate and their obligations under the United Nations
Charter.
Mr. President, Members of the honourable Court, I refer to the purposes
of the Charter, according to which ali Members of the Organization are
pledged to adjust or settle international disputes "in conformity with
the principles of justice and international law" (Art. r). Mr. President,
the public record of the events and circumstances attending the dispute
which has so long engaged the attention of the United Nations itself,
as weil as of this honourable Court, is too long and too full a record to
warrant extensive discussion here. In their written pleadings, the
Applicants have set out a year-by-year chronological summary of these
relevant events and circumstances during the rS-year period 1946-rg63,
in which this dispute has been pending, and for the settlement of which
negotiations have been unavailing.
The negotiations between the Parties to these proceedings have been
conducted in and through the United Nations, its committees and its
organs, by means of actions and processes conformable to the purpose
and structure of that Organization. No more orderly, appropriate, or
feasible course cou1d have been followed by the Applicants in their
persevering efforts to seek a settlement of the legal issues in dispute
between them and Respondent. Such negotiations have been marked
by repeated references to this honourable Court of legal issues basic to
the dispute. The Advisory Opinions consequent upon such references
have been accepted by the Applicants in, and through the agency of, the
United Nations, of which all Parties to these proceedings have been, and
are, Members.
Negotiations being fruitless, the Applicants instituted these proceed
ings by Applications filed with the Registrar of this honourable Court
and dated 4 November 1960.
In its Judgment of 2r December 1962, the Court held that the Appli-
cants-
"have a legal right or interest in the observance by the Mandator:y
of its obligations both toward the inhabitants of the Mandated
Territory, and toward the League of Nations and its l\Iembers".
(I.C.j. Reports rg62, p. 333.)
In 1950, in the course of its Advisory Opinion of that year, this
honourable Court introduced an analysis of the legal issues then before
the Court, with the comment: ARGUl\Œ:-ITOF MR, GROSS 109
"lt is now contended on behalf of the Union Government that
this Mandate has lapsed, because the League has ceased to exist.
This contention [said the Court] is based on a misconception of the
legal situation created by Article 22 of the Covenant and by the
l\fandate itself."
1 end the quote from the unanimous opinion of the Court in 1950,
unanimous on this aspect of the case.
The same contention is now heing pressed by Respondent, notwith
standing the Court's holding in the rgso Opinion, two supervening
Advisory Opinions by this honourable Court, confinnatory and inter
pretative thereof, and the rg62 Judgment, from which a relevant passage
has been quoted.
Few, if any, legal issues underlying an international dispute referred
to this honourable Court or to the Permanent Court of International
Justice itself as well, for resolution by judicial means, can have consumed
somuch of this honourable Court's time and attention during the course
now of almost 15 years.
A new generation of inhabitants of the Territory has been born since
Respondent first denied its obligations under the Mandate, at the same
time retaining the rights derived from the Mandate. Such a posture
twice has hcen commented upon by this honourable Court.
In 1950, the Court in its Advisory Opinion said: .
"The authority which the Union Government exercises over the
Territory is based on the Mandate. If the illandate lapsed, as the
Union Government contends, the latter's authority would equally
have lapsed. To retain the rights derived from the illandate and to
deny the obligations thereunder could not be justified." (I.C.].
Reports I950. p. 133.)
And, in the rg6z Judgment, this honourable Court quoted the fore
going passage, which 1 have just read from the 1950 Opinion, and added,
at page 329 of the rg6z Judgment:
"The rights of the Mandatory in relation to the mandated terri tory
and the inhabitants have their foundation in the obligations of the
l\1andatory and they are, so to speak, mere tools given to enable it
to fulfil its obligations."
Thus the Court descrihed the foundation of the rights of the Mandatory.
The Court likewise held that the Applicants, and other States similarly
situated, and again I quote from the J udgment, at page 338:
"continue to have the right to invoke the compulsory jurisdiction
of the Court ... That right continues to exist for as long as Respon
dent holds on to the right to administer the Territory under the
.Mandate.''
Thus also, Judge Bustamante, in his separate opinion in the rg62
proceedings, commcnted upon the special and lofty purpose for which
the Mandate was entrusted to the Respondcnt, and the learned judge
pointed out, inter alia:
"The function of a Mandatory is a responsibility rather than a
right ... it is for the Mandatory to refuse the trust if it cannat
bear the burden ... An international Mandate is, by its very nature,
temporary and of indeterminate duration ... The corollary to the
two foregoing paragraphs [said the leamed Judge] is that an inter-IIO SOUTH WEST AFRICA
national Mandate, through which tutelage is exercised, does not and
can never imply a transfer of sovereignty to the Mandatory or the
annexation of the mandated territory by the tutelary State. [And
the leamed Judge concludes by saying] It is only at the conclusion
of the Mandate that the people can choose for itself between in
dependence or incorporation in the administering State." (I.C.J.
Reports rg62, p. 357.)
The foregoing views, which 1 have cited, of this honourable Court and
of leamed judges, reflect and define the character of the Mandate itself,
which the Court bas characterized in its own words as:
"a new international institution, the primary, overriding purpose of
whlch is to promote 'the well-beins: and development' of the people
of the territory under Mandate". (l.C.J. Reports rg62, p. 329.)
In the light of the high intentions of the founders of the mandates
system, and of the weight, dignity and legal significance of the pres
cription of the "sacred trust of civilization", asserted abuse and breaches
of the Mandate, which have included, and continued to include, deniai
to the inhabitants of the Territory of the supervisory safeguards and
protection of the organized international community, as weil as the
unilateral imposition by Respondent of policies and practices which are
a subject of this litigation, raise legal issues of a nature which impe!
recourse to this honourable Court as the appropriate and, indeed, sole
means of a just and peaceful solution.
l\IrPresident, it may be convenient to this honourable Court if 1 now
summarize the plan or scheme of argument which the Applicants intend,
with the Court's permission, to place before the Court in support of their
several submissions.
For purposes of clarity of presentation, the Applicants will, with the
Court's permission, divide their argument into what may be described
as two phases. The first phase will be concemed essentially with legal
issues in dispute between the Parties, incorporating only such elements
of facts as are conceived by the Applicants to be inseparably related
with, or directlygennane to, the legal issues which arise for consideration.
According to the Applicants' understanding, Mr. President, Respon
dent will then be accorded an opportunity to comment upon the legal
issues thus presented, together with any others it may consider pertinent
to its case. In any event, following the conclusion of the first, what
might generally be called "legal phase", of the proceedings, with such
right of rebuttal or rejoinder as the honourable Court and the President
may see fit to allow, the Applicants then would present to the Court,
with its permission, questions of fact, inferences to be drawn therefrom,
and considerations which may be germane to such questions of fact or
inference.
The first, or legal phase, of the Applicants' argument then, if it please
the honourable Court, will consist of the following four parts:
Part A. A summary introduction of the legal issues, together with
inseparably related factual considerations. The legal issues thus sum
marized will concern, one, Respondent's obligations to submit to inter
national supervision (set out in the Reply at IV, pp. 520-552). and
secondly, the legal issues concerned with Respondent's obligations
toward the inhabitants of the Territory (set out in the Reply at IV,
pp. 476-srS). ARGUMENT OF MR. GROSS III
Following the conclusion of such summary, which 1 shaH have the
honour to endeavour to present to the Court, we will then present
Part Bof the first phase, or legal phase, of the Oral Proceedings.
Part B will involve a discussion to be presented by my colleague,
).fr. Moore, of the nature and purposes of the mandates system, read in
the light of relevant events, transactions and undertakings attending its
formation, as well as those eventsand transactions which occurred during
the period when the League of Nations was being dissolved and the
United Nations was formed and commenced operations. Discussion of
these matters appears to the Applicants to comprise both background to,
and foundation of, conclusions with regard to legal issues arising in these
proceedings.
Mr. President, following the presentation of Part B, the nature,
background of the Mandate, and of the events of 1945-1949, wc will
come, with the Court's permission, to Part C of the legal phase of these
proceedings.
Part C, if the Court please. will involve a discussion of the legal
issues relevant to the Respondcnt's obligations to submit to international
supervision and to judicial protection against alleged abuse or breaches
of the Mandate. These are, of course, the obligations which, in the words
of the 1950 Advisory Opinion, "relate to the machinery for implementa
tion".
Finally, Part D ofthis legal phase of the Oral Proceedings willendeavour
to deal with the legal issues relevant to Respondent's obligations toward
the inhabitants of the Territory. Again, in the words of the 1950 Opinion,
such obligations relate "to the administration of the Territory" and
correspond "to the sacred trust of civilization referred to in Article22 of
the Covenant".
With your permission, Mr. President, 1 tum now to Part A, the first
of the four parts of the Applicants' opening statement, which I have just
endeavoured to describe.
PART A
The Applicants seek remedies appropriate to the enforcement of the
two groups or kinds of international obligations which were assumed by
Respondent under the 1\fandate, and which were described by the Court
in 1950 as follows:
"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."
That is from the 1950 Opinion, page IJJ.
The Court went on to say that this first group of obligations is "defined
in Article 22 of the Covenant and in Articles 2 to 5 of the Mandate".
The second group of obligations, in the words of the 1950 Opinion, is
"related to the machinery for implementation and were closely
linked to the supervisory functions of the League of Nations
particularly the obligation of the Union of South Africa to submit
to the supervision and control of the Council of the League and
the obligation to render to it annual reports in accordance with
Article 22 of the Covenant and Article 6 of the Mandate".
That is from page 136 of the 1950 Opinion.1!2 SOUTH WEST AFRICA
\Vith respect to the first of these groups of obligations, that is to say,
those related to the administration of the Territory and corresponding
to the sacred trust. the Court held in the rgso Advisory Opinion that-
"These obligations represent the very essence of the sacred trust
of civilization. Their raison d'êtreand original object remain. Since
their fulfilment did not depend on the existence of the League of
Nations, they could not be brought to an end merely because this
supervisory organ ceased to exist. Nor could the right ofthe popula
tion to have the Territory administered in accordance with thcse
rulcs depend thereon." (l.C.] Reports I950, p. IJJ.)
In the 1962 proceedings, as the Court points out in its Judgment,
Respondent not merely conceded, but, in fact, argued, and I quote from
the Court's Opinion:
"argued that the rights and obligations under the ~Ianda n e
relation tothe administration of the tcrritory of South West Africa
being of an objective character still exist ... ". (l.C.]. Reports I962,
pp. 332-333-)
This was, as the Applicants understand it, an alternative argumcnt-I
have just quoted from the Court's characterization of the argument.
In the present phase of the proceedings, however, Respondent has
re\·crsed or abandoned this argument, alternative or otherwise, and now
seeks to make nugatory the Court's unanimous holding in rgso that
Respondent's obligations toward the inhabitants of the Terri tory remain
in effect.Bv virtue of a so-ca\led "alternative" argument, newly intro
duccd at thh phase of the proceedings, and which will be examined more
fully, Respondent now urges the Court to hold that the ~Ianda atsa
whole has lapsed. Such demise would, of course, carry with it the first
group of obligations, along with thosc comprising the second group,
relating to international supervision and reporting.
If I may, l\lr. President, 1 should now like to turn to a summary
consideration to be elaborated in Part D of Respondent's obligations
towards the inhabitants of the Tcrritory, in terms of the legal issues
affecting this group of rightsand obligations.
· If it pleasc the Court, 1 turn to a summary of the Applicants' argu
ments in support of its contention that Respondent has violated, and
is violating. its legal obligations as defined in Artic22 of the Covenant
of the League of Nations and in Article z, paragraph 2; Article 2, para
graph I; Articles 4. 6, and 7. paragraph r, inter alia. of the Mandate.
I mis-spoke, Mr. President, I would omit reference, with the Court's
permission, to the obligations in the paragraphs relating to implementa
tion, 1 would delete references, with your permission, Mr. President,
from my comments with respect to Article 6 and Article 7, paragraph r.
1 am confining myself, at this stage. with the Articles 2 to 5 of the
l\landate, and Article22 of the Covenant.
Thcse obligations, as the Court said in the Advisory Opinion of rgso.
which 1 have quoted,
"represent the very essence of the sacred trust of civilization.
Their raison d'êtreand original object remain." (l.C.J. Reports I950,
p. 133-)
The Applicants' submissions in respect of Respondent's obligations
toward the inhabitants of the Territory are, of course, posited on rejection ARGUMENT OF MR. GROSS II}
of Respondent's newly advanced contention that the Mandate has total! y
lapsed as an international institution.
The Applicants' central contentions can be stated in concise and simple
form:
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 thereof, is judicially determinable on the basis of objective legal
criteria.
The first of these propositions, to wit, that the policy of apartheid,
as practised in South \Vest Africa, is repugnant to the obligations under
Article 2, paragr:aph 2,of the Mandate, necessarily involves a definition
of that term, or "separate development" in Respondent's currently
prefcrred usage. If 1 am not mistaken, the interchangeability of the
terms "apartheid" and "separate development" is not disputed.
The Applicants do not use the terms "apartheid" or "separate devclop
ment" as words, but as defined acts with a legal consequence.
The Applicants present to this honourablc Court the policy and
practice of apartheid as it is, and as it has been, in the daily lives of
the individual pcrsons who comprise the collectivity of the inhabitants
of the Territory.
The Applicants define apartheid, for the purposes of these proceedings,
as a policy and practice under which:
"the status, rights, duties, opportunities and burdens of the popu
lation arc determined and al!otted arbitrarilv on the basis of race,
color and tribe, in a pattern which ignores the needs and capacities
of the groups and jndivjdua]s affccted, and subordinates the intcrests
and rights of the great majority of the people to the preferences of
a minority".
I have just quoted from page I08 (1) of the ~Iemorials.
Rcspondcnt sccks to explain and justify the policy of apartheid on
the basis of its so-called "ultimate goal". As will be made clear at the
stage of these proceedings which will deal primarily with facts, such a
profcssed goal is hypothetical, contingent and indeterminate as to time
or method of accomplishment.
In the Applicants' respectful submission, this honourable Court, for
reasons which will be made clear at an appropriate phase of these
procccdings, should not be asked to take account of so uncertain and
unpredictable, hypothetical and contingent future state of affairs in
appraising the legal significance of Respondent's actual and present
policies and practices.
As is made clear in the Reply, at IV, pages 312 and following, the
concept of "homclands", "Bantustans", or othcr forms of expression, by
which Respondent describes the ambiguous aim of territorial apartheid,
or partition: such concept is unviable, vaguely sketched and dependent
upon the so-called "White" cconomy. Moreover, the society of the
modem core of the Territory, the southern sector or Police Zone, whethcr
it be characterized as multi-racial, or in whatever form one may please,
speaking of it as a fact of economie life,the present general pattern is to
be continued indefinitely or interminably so far as the present record
shows. 1 will reserve elaboration of details to support these contentions
for the later stage, Mr. President; 1 mention them now because, in my SOUTH WEST AFRICA
respectful submission, it is impossible to deal with the legal issues under
Iying the rights of the inhabitants of the Territory without considering,
if only briefiy, the Applicants' theories, or contentions at least, with
respect to the nature of the practices and policies with which thosc legal
issues are vitally concemed.
The world and life of the Territory with which these cases deal is the
world and life of the present, in the forty-fifth year of the Mandate. The
policy of apartheid is a present fact with an ascertainable shape and
demonstrable consequences which are incompatible with the promotion
of the welfare and progress of the inhabitants of the Territory.
Ail the foregoing matters will be elaborated more fully at a later stage
of thesc proceedings, whcn the Parties will be dealing with essentially
fact issues. It is necessary. however, with the Court's permission, in the
present context, to note that the legal inferences and legal conclusions
appropriately to be drawn from the policy of apartheid, in terms of
Respondent's obligations under Article 2 of the Mandate, should-and,
in the Applicants' respectful submission, must-take into account the
nature and extent of Respondent's measures of Îl'flplementation of that
policy.
If 1 may be permitted to cite one illuminating example briefly at this
stage and then pass on to more strictly legal considerations, 1 should
like, with your permission Mr. President, to refer to the educational
policy applied by Respondent in the territory of South West Africa. In
view of the Applicants' purpose in the present context merely to advert
to issues of law, 1 shall avoid an extended analysis, but it may be of
assistance to the Court briefiy to cite at this point the example of apart
heid in the educational field in the light of the axiomatic proposition
that the wheel of society turns upon education as its hub from which
radiate ali aspects of economie, political and cultural lite of any social
system. Consistently with Respondent's doctrine that rights, duties,
burdens and opportunities are to be allotted officially upon the basis of
membership in a group rather than in the light of individual capacities
or potentials, Respondent's educational policies in the Territory proceed
from the premise {and I use Respondent's expression) that "non-Euro
peans", wherever they may reside in the Territory, should recei\·e and
be limited to, educational opportunities commensurate with their in
tended future status in the political and economie life of the Territory.
The most co_mpleteand forthright exposition of Respondent's premises
and objectives in respect of so-called "Bantu" education in the Territory
may be found in the Counter-Memorial, at Book VII, at III, pages 527-530.
Mr. President and honourable Members of the Court, in commencing
what is indicated to be a rather lengthy proceeding before this honourable
Court, may 1 take the liberty of saying that characterizations by adjec
tives and adverbs of Respondent's policy will be avoided by the Appli
cants as muchas is humanly possible. We rest our case, as I will demon
strate, upon centrally decisive and undisputed facts largely on the basis
of laws and administrative practices, public records and statements of
Respondent's highest officiais, most of which statements are quoted by
Responden t itseH.
1 have referred, Mr. President, to the forthright and complete expo
sition of Respondent's premises and objectives in respect of Bantu
education in the Territorv set forth, in its own words, in the Counter
Memorial, Book VII, at IÏI, pages 527-530. ARGUMENT OF MR. GROSS II5
Respondent's exposition of what it tenns the "motivation" of its
policy must be read in the light of the fact that the so-called non-White
population of the economically developed core of the Territory-the
Police Zone, or southem sector, which comprises at least 50 per cent.
ofthe total area of the Territory-is composed of a population of which
sorne 73,000 are so-called Whites, sorne qo,ooo (in round figures) are
so-called Natives, and sorne 24,000 (again in round figures) are so-called
Coloureds or Basters.
The Applicants respectfully call these sections of the Counter-Memorial
to the Court's attention, that is to say the sections appearing in Book VII
at III, pages 527-530, inasmuch as they embody not only the decisively
relevant aspects of the education policy pursued in the Territory, but,
in the App1icants' conception, embody also decisively relevant aspects
of the premises of apartheid generally and, in our view, clearly reveal the
consequences of that: policy upon the individuals whose welfare and
progrcss are at stake. 1 forbear from quoting from these sections in
deference to the objective of discussing at this stage of the Oral Pro
cecdings essentially legal issuesand confining my remarks to inseparably
related factual issues as briefly as they can be stated fairly. These
sections in the Counter-Memorial, which 1 forbear from quoting at this
stage but will respectfully cali to the Court's attention again, these
sections in the Counter-Memorial likewise underly and confirm the
submission of the Applicants that the legal issue joined between the
Parties in respect of the irreconcilability of the policy and practice of
apartheid with the obligations of Article 2, paragraph 2,of the Mandate
hinges on no disputed facts.
Respondent, ignoring the explanation in the Memorials as to the
Applicants' reasons for citing extensive factual material in its pleadings,
erroneously asserts, and 1 quote from the Rejoinder:
"lt is difficult ·to imagine the purpose for which this material
is introduced unless Applicants consider that there is an issue of
fact to be determined between the Parties. And the only basic
factual issue [says Respondent] in this regard is the one relating to
Respondent's motive or state of mind." (V, p. 107.)
Respondent's appraisal, Mr. President, is wrong in each of its parts
and as a whole.
That there is no "issue of fact to be detennined betwcen the Parties"
on any decisively relevant aspect of these cases, has been made clear in
the Reply and is here reaffirmed. The Applicants, as I have said, rest
their case with respect to Respondent's violations of its obligations
toward the inhabitants of the Territory on the basis of Respondent's
own formulations of the policy of apartheid, and on a basis of laws and
regulations and practices spread upon the public record. The Applicants,
of course, take sharp issue with the premises upon which Respondent's
policy is based, as well aswith the inferences and legal conclusions which
Respondent seeks to draw from its admitted, factual, policies. ·
As is made clear in the Reply, moreover, the Applicants' legal con
clusions are based upon public statements of Respondent's highest
officiaisquoted in the Applicants' written pleadings, and upon Respon
dent's measures of implementation of its policy, the existence and nature
of which are undisputed. AU of this was stated in the Reply at IV,
pages 262 and following. Without conceding the relevance of factsn6 SOUTH WEST AFRICA
contained in Respondent's pleadings, including the Oral Proceedings, the
facts-as distinct from inferences which may be drawn therefrom-are
not contested by the Applicants except as otherwise indicated, specifie
ally or by implication, in the Applicants' >vritten pleadings or in the Oral
Proceedings.
Mr. President. the second part of the statement from the Rejoinder
which 1have quoted, that is, that "the only basic factual issue ... is the
one relating to Respondent's motive or state of mind", is rejected by the
Applicants as a wholly erroneous rendering of the Applicants' conten
tions, either as to fact or as to law.
In its Counter-Memorial, Respondent stated, incorrectly, that the
Applicants base their case on the charge that Respondent has exercised
its powers under the Mandate "in bad faith". (1quote from the Counter
Memorial, Il, Book 1, at page 2.)The Applicants sought to make clear
in the Reply that Respondent had misinterpreteù the import of the
Applicants' submissions and, indecd, that such misinterprctation might
be attributable to Respondent's fallacious co~tent ioncnerning the
Iimited scope and content of its legal obligations under Article 2 of the
Mandate. We tried to make this clear in the Reply, at IV, page 255 and
following.
Respondent's repetition of the same error in the Rejoinder, accord
ingly, is difficult to explain in so far as it attributes any such intention of
pleading to the Applicants, and it may refiect sorne anxiety on its part
to avoid the application of objective criteria as a measure of its legal obli
gations under Article 2. However that may be, the fact undisputedly
is that the Applicants do not makc an issue, have not sought to make an
issue, and do not intend to make an issue of good or bad faith in the pre
mises.
Notwithstanding the fact that this honourable Court has affi.rmed its
competence to adjudicate the merits of the dispute between Applicants
and Respondent, including issues which have arisen under Article 2,
paragraph 2, of the Mandate, Respondent insists that there exists no
basis for a judicial determination of asserted breachcs of Respondent's
legal obligations thereunder.
As originally summarized in the Counter-Memorial in Book IV (Il),
and fully developed in the Rejoinder (V), Respondent has presented
two basic legal contentions in this regard.
The first,set out in the Rejoinder, V, at pages 143 and following, is
that, given the nature of the obligations of Article 2, paragraph 2, of the
Mandate, "although the obligations under the Article were of a legal
nature, the Court was not intended to possess jurisdiction in regard to
alleged breaches thereof". That is from the Rejoinder, V, at page r46.
Respondent's contention that disputes concerning the application or
interpretation of Article2, paragraph 2,of the Mandate, and, by impli
cation, Article 22 of the Covenant of the League are not justici
able, attributes to the authors of the mandates system a denial to the
inhabitants of the Territory of judicial protection of the rights comprised
in what this honourable Court described in 1950 as "the very essence of
the sacred trust of civilization".
Acceptance of Respondent's contention that these rights arc not
justiciable-disputes concerning thesc rights are not justiciable-would
lead to the anomalous result that protection by this Court of rights and
obligations going to the very essence of the Mandate would be subject ARGUMENT OF MR. GROSS IIJ
to administrative supervision alone, whercas rights of lesser stature, and
of narrower material import, in Articles 3 to 5 of the Mandate, would be
subject both to administrative supervision and to judicial protection.
This would be the anomalous result which would inescapably flow from
Respondent's contention that the obligations under Article 2,paragraph
2, of the Mandate are not justiciable, whereas rights and obligations
under Articles 3 to 5 are.
The final bulwark of judicial protection against breaches or abuse of
the Mandate-as this honourable Court in its 1962 Judgmcnt dcscribed
its function undcr the Mandate-would accordingly be available only
for the protection of rights of lesser stature and significancc than those
embodied in Article 2,which the Court has said are of the essence of this
sacred trust.
Respondent's ascription to the founders of the mandates system of an
intention thus to circumscribe protection of the sacred trust could, it is
submitted, be justified only by incontrovertible explicit evidence,
coupled with imperative considerations of logic. Respondent's con
tention is in the teeth of the express language of Article22 of the Covenant
and Article 2 of the Mandate, neither of which provisions embody any
such limitation or circumscription expressly or by implication. Further:
consideration will be given to this legal issue of interpretation in Part D
of this phase of the Oral Proceedings.
In their writtcn pleadings, the Applicants have sought to demonstrate
that disputes conceming the interpretation and application of Article 2,
paragraph 2, of the Mandate are justiciable (may I refer to our Reply
at IV, pages 483 and following).
Such disputes, it is respectfully submitted, are justiciable and in
accordance with, and on the basis of, intcrnationalcustom, as evidence of a
general practice accepted as law, the general princip lesoflaw recognized
by civilized nations, and judicial decisions and teachings of qualified
publicists of the varions nations. In short, 1\Ir. President, justiciability
of disputes concerning the interpretation and application of Article 22
of the Covenant and Article 2, paragraph 2,of the Mandate is supported
by reference to the application of Article 38, paragraph I, of the Statu te of
this honourable Court.
The existence of an international legal norm of what the Applicants
describe as "non-separation" or "non-discrimination", for the sake of
convenience of description, the existence of such an international legal
norm as dcfined and described by the Applicants in the Reply, at IV,
page 493, is estab!ished, in our respectful submission, by sources and
authorities of the nature referred to in Article 38 of the Statute of the
Court. Part D of this phase of the Oral Proceedings will treat of the con
siderations upon which we base this contention.
In essence, in this summarization, the Applicants' submission is that
the interpretation and application of international legal obligations
undertaken by States in relation to the rights, welfare or progress of
inclividuals, are to be measured and governed by· a generally accepted
legal norm, which prohibits official allotment of status, rights, duties,
privileges or burdens upon the basis of membership in a group, class or
race, rather than on the basis of individual merit, capacity or potential.
Such a legal norm, moreover, is generally accepted by the nations as a
minimum norm of official policy and practice on the part of governments.
With regard to relevant international obligations, such legal normu8 SOUTH WEST AFRICA
likewise is accepted virtually universally as a standard for interpretation
and application of international obligations with respect to the relevant
area; nurnerous exarnpJes are cited in the Reply at IV, pages 491-510.
ln the light of the fact, Mr. President, that such legal norrn is a minimum
one, in our submission, the Applicants submit that it a fortiori provides
objective criteria governing the interpretation and application of an
international undertaking such as that embodied in Article 2, paragraph
2, of the Mandate, that is to say, the promotion of the welfare and progress
of the individual inhabitants of the territory "to the utmost".
The Applicants, in their Reply, refer to certain authorities as showing
that obligations of a scope and nature comparable, in certain general
respects, to those embodied in Article 22 of the Covenant and Article 2
of the Mandate, are justiciable. Among such authorities is cited the cele
brated decision of the United States Supreme Court in Brown v. The
Board of Education, 347 United States Reports 483, decided in 1954-
Considerations of a legal nature underlying the Brown case, gcrmane
to legal issues joined between the Parties to these proceedings, may be
summarized briefly as follows, with your permission, Sir. As stated in
the Reply, the BrowH case, among others cited in the Reply, confirms
the fact that judicial tribunats, both domestic and international.
"have often derived their judgments from sources, and upon the
basis of considerations, which Respondent would characterize as
'social, ethnological, economie and political' ... It is, of course, in the
highest traditions of courts in ail civilized systems to draw upon
humane, moral and political standards in deriving the sources oflaw."
1 take the quote from pages 485 and 487 of our Reply (IV) and would
add only on this point that the fact that social, ethnological, economie
and political considerations underlying disputes of a legal nature nor
mally may provide more, rather than less, reasons for courts to deal with
disputes between men, or nations, because these are the type of disputes
which are most likely to threatcn civil order or international peace.
Secondly, the Brown case, among others, illuminates, and again I
quote from the Reply,
"the judicially perceived necessity to interpret broadly-formulated,
constltutional-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".
This 1 quote from page 515 of our Reply (IV).
This aspect of the case of Brown v. The Board of Education, among
others, is relevant to Respondent's contention, in its pleadings, that the
scope and content of its obligations under Article 2, paragraph 2, should
be measured essentially on the basis of standards prevailing in 1920, when
the Mandate was conferred. 1confess that the Applicants see, in a certain
statement by the Respondent, that this is inferred or implied; other
statements appear to imply to the contrary. To the extent that any
doubt may arise or linger with respect to the precise meaning of Re
spondent's intention in this respect. I cite the Brown case to lay at rest
any doubt on the score of valid method of interpreting a constitutional
fype document in ratione temporis.
· The history of the Brown case itself vividly illustrates the error of
Respondent's contention, if indeed that be its contention. In that case,
as pointed out in the Reply, at IV, page 514, the Supreme Court of the ARGUMENT OF MR. GROSS
United States reversed the r8g6 decision, by the same Court, in Plessy v.
Ferguson, on the basis of change and experience during the intervening
period, including what the Court terrned "psychological knowledge"
(this is quoted in our Reply at IV, page 487).
Finally, the Applicants cite the Brown case, among others, in support
of their submission that, and 1 quote again from our Reply,
"obligations are not deprived of a legal character merely by reason
of being formulated in general terrns, nor do Courts hesitate to
exercise their judicial functions even when issues, in Respondent's
phrase also fall within 'the realm of politics'. Nor do courts fear
[againin Respondent's phrase] 'to venture onto one or other of ... [the]
terrains' of 'social, ethnological, economie and political considera
tions', even in complex and controversial issues, in which individual
human .rights are asserted against govemmental action or policy."
I have just quoted from our Reply at IV, page 515.
The Brown case, among manyothers, shows that legal disputes in which
such considerations are relevant or decisive, are justiciable and that such
disputes can be, ·and are, adjudicated by courts of law in most if not all
societies.
That such obligations are of alegal character isconceded by Respondent,
cxplicitly with regard to Article2, paragraph 2, of the Mandate, and im
plicitly with regard to Article 22 of the Covenant. 1 refer to the Re
joinder, at V, pages 19 and 20 among other pages.
The Applicants, as has been said, cite in their pleadings numerous
juclicial authorities, as well as scholarly writers, confirrningat the judi
cial process in civil law systems, as well as other systems, draws upon
humane, moral, political and scientific standards as sources of law, and
does so particularly where legal rights and duties are broadly formulated.
This discussion appears in our Reply at IV, pages 485-491. Thus, reference
is macle in the Reply to the doctrines of alms de droit, bonnes moeurs and
ordre public.
Respondent's commentary on the Browt c~se does not advert to the
aspects of the case which are referred to above, so far as 1 am aware,
and which alone are relevant to issues in these proceedings. 1 refer to
Respondent's commentary, for example, at page JI of the Rejoinder (VI).
Instead, Respondent seems ta limit its discussion or cornrnentary on the
Brown case to, what in the Applicants' view, is the totally irrelevant
proposition that the United States is assertedly mono-cultural, whereas
the mandated territory is assertedly multicultural. \Vhether or not the
purported distinction is a true one the Applicants cannot say, as neither
term is defined nor, it is submitted, so far as we can see, is definable in
any meaningful sense relevant here.
The Applicants are aware, and do not suggest otherwise, that decisions
of domestic tribunats are peculiarly suitecl to, and refiect, conditions and
traditions particular to their own societies. Such conditions and traditions
may be multi-cultural, multi-lingual, or multi-racial, or mono-cultural,
mono-lingual, or mono-racial, or aUor any of these, and more, in combina
tian. The Applicants do not intend to comment upon, nor do they believe
that this honourable Court would wish to enquire into, much Jess pass
upon, practices or policies which regulate the affairs of any sovereig&
State or society other than that which is subject of complaint in the
cases at bar.120 SOUTH WEST AFRICA
\Vhether Canada or India, merely as random examples, are or are not
multi-racial or mono-cultural societies, or whether they maintain or
should maintain or should not maintain, for example, separate schools
for separate cultural or linguistic groups, is unknown to the Applicants
and is none of their concern.
The signiticance of the Brown case to these proceedings consists not
in the ruling of the Supreme Court, but lies in the universal applicability
of much of the reasoning upon the basis of which that Court arrived at
its unanimous finding, and 1 have attempted to refer to the Court the
three respects in which that universally applicable reasoning seems rele
vant to the cases at bar.
The Supreme Court of the United States, as has been noted, took ac
count of what it termed "psychological knowledge" along with other
contemporary and authoritative learning. Upon the basis of such modern
authority, to use the Supreme Court's term, the Supreme Court found
that officially sanctioned separation of Negro school children, at !east in
the United States, and I quote from the Opinion, "from others of similar
age and qualifications because of their race generates a feeling of inferi
ority as to their status in the community that may affect their hearts
and minds in a way unlikcly ever to be undone". This is quoted in our
Reply at IV, page 487.
ln the light of this finding, applicable to the United States, the Supreme
Court concluded that, "in the field of public education the doctrine
of 'separate but equal' has no place. Separate cducational facilities are
inherent! y unequal".
Mr. President, and Members of this honourable Court, the Applicants
do not suggest that the considerations which motivated the decision in the
Brown case govern these proceedings. Such considerations underlying its
reasoning, however, seem to warrant the following conclusion on the
reason of the thing.
If it can be appropriately held anywhere, in any society, mono- or
multi-racial or cultural, that equal facilities, if separate, generate social
and persona! evils of the type to which the Supreme Court referred, it
goes beyond the point of reason, in Applicants' respectful submission,
to deny that facilities which are both separate and unequal can generate
no lesser social and persona! evils in every society where they occur,
including South West Africa. A heavy burden, accordingly, must fall
upon Respondent, charged with the duty to promote to the utmost the
welfarc and progress of the individual inhabitants of this Territory, a
heavy burden must indeed fall upon the Respondent to show that such
wellare and progress is promoted by educational facilities in the Terri
tory, which are by any objective standard, as we shall endeavour to show
in the fact phase of these proceedings, unequal as weil as separate.
In the Applicants' submission such welfare and progress of the inhabi
tants is thwarted by such poliey and practice, as we shall attempt to show.
:\ir. President, at our moment of recess 1 was concluding this particular
point by saying that in their written pleadings the Applicants set out
extensively the reasons, precedents and authorities demonstrating that
not only legal obligations of the scope and nature of Article 2,paragraph
2, and Article 22 of the Covenant, are justiciable, but that, in addition,
lbbjectively determinable legal norms and standards exist, on the basis
of which the obligations ernbodied in such provisions can and, in our
respectful submission, should be adjudged by this honourable Court. ARGUMENT OF :'\IR. GROSS 121
Such legal norms and standards, as I said, will be fully discussed in Part D
of this phase of the Oral Proceedings.
These norms and standards, as 1 have already said, would apply
a fortiorto an obligation to "promote to the utmost" rights which include
the right of the inhabitants to be free from the restrictive, oppressive
and other consequences of the policy and practice of apartheid, as de
scribed in our written pleadings, which will be prcsented to the Court at
a later stage when we turn to discussion of the essential facts.
Respondent's second argument-the first being. as the honourable
Court will recall, that the dispute is not justiciable in terms of Article 2
of the Mandate-alternative toits first, is set out at V, pages 157 to 174
of the Rejoinder. Respondent's alternative contention falls for considera
tion only ifthe Court rejects Respondent's first contention. Rcspondent's
alternative contention is, in cffect, that unrevicwablc discretionary
powers over the Territory are vested in the Respondcnt in terms of
Article 2, paragraph 2, of the Mandate, subject only to the question
whether such powers are exercised by the Mandatory "in good or bad
faith".
The Applicants submit that the question at issue is not the subjective
motivation of a particular government, or of a group within a govern
ment, or of a single official, or of a single departmcnt of a govemment.
The only sense in which a subjective test of good faith could be relevant
to the motives of individuals who, severally and collectively, and from
time to time, form the executive, legislative and judicial branches of any
government, would be by application of the universally accepted prin
ciple that an individual or an entity is legally presumed to intend the
reasonably foreseeable consequences of his, or its, actions.
Any other measure of Respondent's obligations under Article 2 of
the Mandate, in terms of good or bad faith, would necessarily confront
this honourable Court, or an administrative supervisory authority, with
the task of judging the Mandatory's conscience, rather than its conduct.
If such a legal yardstick were to be the measure of Respondent's obliga
tions under Article 2, paragraph 2, of the Mandate, the Applicants
themselves would be at a loss to determine what manner of evidence of
breach would be relevant, save perhaps explicit and unrepudiated
admissions by Respondent's highest officiais, that thcir policies were,
indeed, directed toward an illicit purpose. For this reason, the Applicants
perceive little difference in practicalor legal effect between Respondent's
two alternative contentions, and hcnce conclucle that to describe an
obligation so limited as one of a legal nature, is little more than a play
on words.
The policy and practice of apartheid, in the Applicants' submission,
are in violation ofthe terms of the Mandate, not subjectively determined
in accordance with so-called good or bad faith tests, or motivation, but
as objectively interprcted in accordance with generally accepted stan
dards fully set forth in our Reply, as has been noted.
The Applicants, in Part D of this phase of the Oral Proceedings, will
endeavour to analyse in detail the legal premises, reasoning and con
clusions relevant to Rcspondent's two alternative contentions, which
1 have summarized.
Now, Mr. President, with your permission and that of the honourable
Court, 1 would like to turn to a consideration of the legal issues relating
to Respondent's obligations to submit to international supervision. This,!22 SOUTH WEST AFRICA
of course, is the second group of obligations, in terms of the Advisory
Opinion of 1950, and are those relating to measures of implementation.
These too will be considered more fully in Part C of this phase of the Oral
Proceedings.
The key to the just, prompt and orderly solution of the problems
generated by Respondent's alleged violations of its obligations towards
the inhabitants of the Territory, is to be found in, and through, the
processes of international administrative supervision which, as this
Court has held, is the "normal security" embodied in the Covenant, and
in the Mandate, for the protection of the sacred trust. The Applicants
will set out, at a later stage of these proceedings, the facts, and related
considerations, which make clear, in our respectful submission, the
practical necessity for administrative supervision. Such practical neces
sity, as we believe will emerge clearly from the facts, reinforces and
confirms the legal considerations supporting the Applicants' submission,
that administrative supervision is of the essence of the Mandate and
must continue so long as the Mandate itself endures.
Respondent once more requests the Court, as Respondent did in 1962,
to reverse the 1950 Advisory Opinion on the ground that. had certain
facts been known to the Court in 1950, and I quote from Respondent's
pleadings:
"It seems inconceivable that it could have arrived at its conclu
sions regarding an obligation on Respondent's part to submit to
United Nations supervision." (II, p. 148.)
This proposition which, for the sake of convenience, Applicants describe
as the "new facts contention", will be analysed in Part B of this phase
of the Oral Proceedings, along with the background of facts, events and
transactions, which occurred during the period 1945-1949·
We believe that analysis of the new facts contention, or re-analysis,
if 1 may put it that way !\Ir. President, will demonstrate that the con
tention is unsubstantial and that. in any event, it is in the teeth of the
Court's fmding in rg6z that: "All important facts were statcd or referred
to in the proceedings before the Court in 1950." (I.C.]. Reports rg62,
p. 334-)
It suffices at this point to note that a.cceptance of l~espondent's
contention concerning lapse of administrative supervision would make
nugatory the Court's explicit holding in the r950 Opinion that:
"The General Assembly of the United Nations is legally qualified
to exercise the supervisory functions previously exercised by the
League of Nations with regard to the administration of the Territory,
and that the Union of South Africa is under an obligation to submit
to supervision and control of the General Assembly and to render
annual reports to it." (I.C.]. Reports I950, p. 137.)
Respondent's submission conceming the lapse of administrative super
vision also requests reconsideration and revision of the holding of the
Court in rg6z tha.t "the Mandate as a whole is still in force" (I.C.J.
Reports r962, p. 335).
Now, with respect to Respondent's fi.rst alternative contention.
Mr. President, it is difficult to say whether greater violence is done
the Court's prior holdings by force of Respondent's first alternative
to
contention, viz., that administrative supervision has lapsed, leaving the
balance of the Mandate intact, or by the second alternative contention, ARGUMENT OF MR. GROSS I23
viz., that the Mandate as a whole has lapsed. These are, of course, the
two alternative contentions in this phase of the case.
Respondent's first alternative contention, that supervisory jurisdiction
of administrative nature has lapsed, without collapsing the Mandate as
a whole, would, inter alia, leave intact the compromissory clause of
Article 7 of the Mandate. Its second alternative contention, that the
Mandate as a whole has lapsed, would, however, erase Article 7. along
with the rest of the Mandate.
Both contentions, it is respectfully submitted, do lethal violence to
major premises underlying the rg6z Judgment. One such premise was
formulated by the Court as follows:
"The administrative supervision by the League constituted a
normal security to ensure full performance by the Mandatory of the
sacred trust toward the inhabitants of the mandated territory,
but the specially assigned role of the Court was even more essential,
sinceit was to serve as the final bulwark of protection by recoursc
to the Court against. possible abuse or breaches of the Mandate."
(l.C.J. Reports I962, p. 336.)
It would follow from Respondent's first alternative contention, ac
cording to which administrative supervision-the normal security-has
fallen away, that the Applicants, and other States similarly situated,
would be left with no protection against possible abuse or breaches of
the Mandate, except by means of recourse to this honourable Court. a
right which, in any event, is vital and indispensable. 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,y reason of default of administrative supervision,
would perforee take the place of the normal security.
Of the many conjectural possibilities concerning the intentions of the
authors of the Mandate, or of the parties thereto, or of the League of
Nations, or the United Nations, one of the least likely must have been
an intent to impose upon the Court the burdensome tasks woven into the
fabric of day-to-day supervision over the Mandate.
Respondent's first alternative contention thus is incompatible with a
proper and effective inter-relationship between administrative super
vision and judicial protection, and this must be so, unless the Applicants
completely misconceive the practical and legal effect of the first alter
native contention. The true nature of this inter-relationship is manifest
from the opinions of leamed judges in the 1962 proceedings, as well as
from the Judgment of the Court itself.
Reference already has been made to the Court's holding with respect
to the nexus between administrative supervision as a normal security
and judicial protection as a final bulwark.
The same relationship likewise was noted by the honourable President
of the Court and Judge Sir Gerald Fitzmaurice, in their joint dissenting
opinion in r g6z.
Thus, in discussing the securities set out in Article 22 of the Covenant
of the League of Nations, the learned judges said, inter alia, that:
"... the chief security or safeguard consisted in the provision made
for reporting, and for the supervisory functions to be exercised by
the Permanent Mandates Commission and the League Council".
(I.C.]. Reports I962, p. 480.)124 SOUTH WEST AFRICA
And the leamed judges, in another context, described Articles 6 and 7:
"... as designed portions of a coherent and integrated whole ... "
(J.C.j. Reports I962, p. 553-)
Judge van Wyk, in his dissenting opinion, likewise analysed the
relationship between Articles 6 and 7 of the Mandate, in the following
terms:
"There is a vast difference between Articles 6 and 7 ... The
provisions of the one [i.e., Article 6] are to be found in the Covenant
of the League itself and constitute one of the securities specifi.cally
embodied in the Covenant for the performance of the sacred trust
of civilization referred to therein, whereas Article 7 does not appear
in the Covenant and is not one of the securities for the performance
of the sacred trust.
From the above it follows that if there was implied or tacit
agreement relative to the continued application of any provision
contained in the Mandate Declaration which depended on the con
tinued existence of the League for its fulfi.lment, such agreement
would much sooner relate to the provisions of Article 6 (that is,
paragraph 7 of Article 22) than to Article 7 of the Mandate Declara
tion." {I.C.J. Reports I962, p. 6o6.)
This honourable Court twice has held that, as a matter of law, Article 7
is in force:"just as the Mandate as a whole is still in force" and that:
"There could be no question of lack of consent on the part of the
Respondent as regards this transfer to this Court of the Respondent's
obligation under Article 7 of the Mandate ... " (I.C.]. Reports I962,
p. 335-)
lt is submitted that, in view of the relationship between Articles 6 and 7.
it is thus implicit in this honourable Court's holding and in views expres
sed by learned judges that if, and since, Article 7 has been held by the
Court to be in effect, it would seem that Article 6, by reason, logic and
practical necessity, should also be concluded to have remained in effect.
With your permission now, Mr. President, 1tum to a summation of the
major legal premises of the respective Parties addressed to the issues
posed by Respondent's contention that administrative supervision has
lapsed, and Applicants' counter-contention that the United Nations has
replaced the League of Nations in terms of Article 6 and of Article 22 of
the Covenant and the fust paragraph of Article 7 of the Mandate.
Respondent's two major premises may be summarized concisely, as we
understand them, as follows:
(r)In assuming the Mandate, the obligation undertaken by Respon
dent "was not one to submit to 'international supervision' " but, rather,
"to submit to the specifie supervision of particular League organs".
(Il, p. 144-)
Respondent's second major premise, as we understand it, is that:
(2)When the League dissolved and the United Nations came into
existence, the latter did not decide to assume supervisory authority over
the Mandate, nor did Respondent consent to submit to supervision by the
United Nations.
These, as we understand, are the two propositions of Respondent.
Each of these propositions rests upon analysis and interpretation of
instruments, events, transactions and undertakings, during the period of
the formation of the mandates system, as well as during the period of ARGU~ŒNT OF MR. GROSS 125
the dissolution of the League and the commencement of operations of the
United Nations.
Interpretation of such instruments, events and so forth, will be
presented by my colleague, Mr. Moore, next following in presenting Part
B of this phase of the Oral Proceedings.
It appears to be common cause between the Parties that supervision,
or the right of recourse to supervision, is normal and essential in any
situation in which control and benefit are separated, that is to say, in
which one persan, or entity, exercises a power over property or other
interests, while another is entitled to the benefits thereof. This, of course,
is the essential underlying concept of trust, or tutelle, in alllegal systems,
of which the Applicants arc aware.
The Parties, nevertheless, reach differing, if not contrasting conclusions
regarding the applicability of this legal concept to the Mandate.
As far as we are aware, Mr. President, Respondent does not address
itself directlyo the rationale of prior Court decisions, or, to the extent
that it does so, seems to misapply the Court's premises and conclusions.
Respondent appears to contend that, in the formulation of this particular
sacred trust, a basic obligation to submit to supervision was not intended
to survive the dissolution of the specifie organ mentioned in the trust
instrument, and that the obligations to submit to international super
vision accordingly lapsed with the demise of the tutelary.
The Applicants, on the contrary, contend that, unless the right of
international supervision continues to reside somewhere, so long as
Respondent retains rights under the Mandate the "very essence of the
Mandate". in the Court's words in rg62, would be excluded. The premise
upon which the Applicants base their contention that the United Nations
replaced the League of Nations as the supervisory organ, and that
Respondent did in fact manifest its consent thereto, will be elaborated
in Part C of this phase of the Oral Proceedings, which 1 am now venturing
to summarize.
The Applicants' premises and contentions touching this matter are
addressed to the mandate institution as it was conceived and as it
actually is, a novel international institution, endowed with essential
attributes which have been defined and described, and indeed fully
adumbrated, by this honourable Court. Respondent's premises and
contentions, on the contrary, relate to a so-called "mandate" of a wholly
different nature, one that I).ever was. lntricate and ingenious though
many of Respondent's legal arguments may be, they seem to the Appli
cants to rest upon unreallegal foundations. This has rather complicatcd
-the Applicants' task of refutation, because it bas seemed to us, with
respect, that the basic contentions of the respective Parties, as well as
their major premises, circle in different orbits.
The starting point of an analysis of Respondent's premise that the
mandate obligation was limited to supervision by a specifie organ must
be an examination of the nature and purposes of the mandates system.
The history of that system, as I have said, Mr. President, will be analysed
by my associate, Mr. Moore, in Part B of this phase of the proceedmgs,
and this history constitutes the very foundation upon which must be
based relevant mferences, arguments and legal conclusions in relation to
the intentions of the authors of the Covenant and of the Mandate itself.
On the basis of these considerations, which will be set forth in sorne
detail, it seems to the Applicants inescapably clear that the obligation126 SOUTH WEST AFRICA
of international accountability was regarded by the authors of the
mandates system as a basic and integral feature of that system, and that
this feature stamped the system with its novel character as a new
international institution,created to assure the welfare and progress of
certain dependent peoples as a "sac red trust of civilization".
In the words of the honourable President of the Court and Judge
Sir Gerald Fitzmaurice, in their joint dissenting opinion in 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
abjects stated in Article 22" (l.C.]. Reports I962, p. 522).
Respondent's method of analysis seems to obscure the fact that, in
the context of its first alternative contention regarding lapse of ad
ministrative supervision without collapse of the Mandate as a whole,
in its discussion of its fust alternative contention, Respondent largely
ignores an interpretation of the Mandate which is the very foundation
of Respondent's second alternative contention, to wit, that the Mandate
as a whole has lapsed.
ln connection with the development of its second alternative conten
tion Respondent of course posits, and we believe correctly posits, the
premise that international supervision was indeed a basic legal obligation
inherent in and integral to the mandates system. In the context of the
first alternative contention, which leaves the rest of the Mandate alive,
as we understand it, Respondent does not refute the Applicants' major
thesis which is, with respect, the same as that of the Court's, namely
that international supervision is the very heart of the mandates system
and that, in the words of this honourable Court of 1962, which 1 quoted
a few minutes ago, to exclude the obligation of international supervision
"would be to exclude the very essenceof the Mandate", in the Court'swords.
Respondent's argument in support of its first alternative contention,
accordingly, is incomplete in our view, inasmuch as the argument ignores
a major premise which, to say the !east, is worthy of discussion in that
context. Respondent proceeds, instead, by a process of what seems ta us
to be logical fragmentation or shredding, to interpret Article 6 in the light
of an institution endowed with attributes essentially different from those
of the Mandate now before this honourable Court.
Respondent similarly draws what to Applicants appears ta be an
unreal distinction between an interpretation of Article 6 bascd upon
sorne general principle of international law and one based upon intention
of the Parties.
Mr. President, the Applicants never have sought to show a general
principle of international law as governing the Mandate, other than
general and applicable principles of treaty interpretation.
The Applicants' actual argument on this point is based upon the
proposition, which we understand to have been established by this
honourable Court, that the Mandate, although an agreement, also is an
institution, which created and introduced new international regulations
particular to itsclf. This proposition, with respect, appears to be es
tablished in the rgso Advisory Opinion, which described the Mandate
as an institution, and I quote, "regulated by international rules" and,
to the same effect, the Court held: "The international rules regulating the
Mandate constituted an international status for the Territory ... "-that
is at page 132 of the Advisory Opinion. ARGUMENT OF MR. GROSS 127
Interpretation of Article 6 of the Mandate, as is true of all its other
provisions, is to be based upon both the international regulations
governing the mandate institutions, and the relevant principles of treaty
interpretation, soundly applied in the light of the international rules
thus regulating the Mandate.
Respondent attacks as "judiciallegislation" application by the Court
of the so-called "principle of effectiveness" in relation to the question
whether Article 6 and Article 7. paragraph I, express a basic legal rule
of international supervision, or whether such provisions are limited, by
their literai terms, to a specifie and defunct organ.
Respondent's reasoning that this would constitute judicial legislation
-the application of the principle of effectiveness-appears, with all
respect, to beg the question. Such a course of interpretation could be
said to be "judiciallegislation" only if there had been an intent to limit
Article 6 and Article 7, paragraph I,to their explicit and literai terms,
which is the point in issue. Ascertainment of the intention of the parties
to an agreement is obviously a normal and a legitimate use of judicial
power. Proper application of the principle of effectiveness to the Mandate
makes clear that an interpretation which would exclude the essence of
the ;\landate would itself constitute an extreme form of so-called "judicial
legislation'' indeed.
ln the written pleadings Rcspondent has set out in summary form
certain principles of interpretation and of implication relevant to the
ascertainment of the common intent of parties to a treaty-1 refer to
Book I1 of the Counter-Mcmorial, Il, page no and following. The correct
application of such principles to the interpretation of the Covenant, of
the Mandate and of the events and transactions during the period
commencing in 1945will be elaborated in Part C of this phase of the Oral
Proceedings.
1 turn now, with your permission, !\ir. President, to a summary
consideration of Article 7, paragraph 1,of the Mandate. The intention
of the authors of the mandates system to establish an obligation of
international supervision as a basic and integral element of the Mandate
is confirmed by considering the consequences which would flow from a
lapse of Article 7, paragraph r, of the Mandate, so long as Respondent
retains rights under the Mandate. Article 7, paragraph I, which requires
consent of the supervisory organ in terms "for any modification of the
terms of the Mandate'', is inextricably linked with Article 6, as well as
with the second paragraph of Article 7 itself.
The 1950 Advisory Opinion noted the legal and practical inter
relationship between Articles 6 and 7, paragraph r, in the following
words:
"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.''
That is from page 141 of the 1950 Opinion. It is indeed necessary that
the same organ be vested with both powers. The "consent" to which
Article 7, paragraph I, refers, obviously must be an informed consent.
Only the same organ entitled to receive "full information with regard to
the territory", in the words of Article 6, could be in a position to exercise SOUTH WEST AFRICA
an informed judgment in respect of proposais for modification of the
terms of the i\landate.
Respondent in its written pleadings does not consider the consequences
which would flow from lapse of Article 7, paragraph r, so long as it
retains its rights under the Mandate. Respondent merely argues, so far
as we are aware, with respect to Article 7, paragraph r, that the rgso
Advisory Opinion erroneously held, in reply to question (c) of that
Opinion, that-
"... 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
acting with the consent of the United Nations".
That is from page 144 of the 1950 Opinion and, as I recall, there was no
dissent from that reply to question (c).
Acceptance of Respondent's contention that Article 7, paragraph r,
has lapscd, would necessarily create one of two intolerable situations:
either the Mandate would be frozen in its present form in perpetuity,
inasmuch as there would be no supervisory organ in existence to consent
to its modification, or Respondent would have the right unilaterally to
modify its terms without the consent of any supervisory organ. The
latter alternative would of course carry with it the power unilaterally
to destroy the international status of the Territory, thus annexing it
both in law and in fact. We submit therefore that the consequences
which would flow from a lapse of Article 7, paragraph r, confinn the
essential nature of the retention of international supervision as a legal
conclusion.
Now, l\Ir.President, tuming to Respondent's second alternative
contention, which I shall attempt briefly to summarize, Respondent's
contention that the Mandate as a whole has lapsed of course would
eliminate the compromissory clause as one of the casualties. This honour
able Court twice has held that this clause nevertheless possesses full
legal effect. Respondent, so far as Applicants are aware, has not advanced
any asserted ''new facts" calling for reconsideration of the Court's
holding in this respect, but merely a new form of argument.
Rcspondent in rg6z contended that the asserted lapse of administrative
supervision had brought about the lapse of the Mandate, but only as a
treaty or convention. Respondent then assumed, apparently, as the
rg6z Judgment pointed out, and indeed, in fact, argued, and I quote
from the Judgment:
"... that the rights and obligations under the Mandate in relation
to the administration of the territory of South West Africa being of
an objective character still exist ... ";
I have referred to this before-it is at pages 332-333 of the rg6z Judg
ment.
The proposition that the Mandate is a treaty or convention, being
common cause between the Parties, did not arise pertinently for argu
ment in the written pleadings or in the Oral Proceedings, as distinguished
from its continued existence as a treaty or a convention following the
dissolution of the League.
The rg6z Judgment held that the Mandate is a treaty or convention,
and that it survives as such. Respondent, nonetheless, now contends by ARGUMEXT OF MR. GROSS 129
its second alternative submission that the Mandate as a whole bas lapsed
bothas a treaty or convention, and in a "real", or "objective", or indeed
any other sense as weil. Respondent, accordingly, repeats its rejected
contention as to the survival of the Mandate as a treaty, and reverses,
or repeals, its contention as to the survival of the Mandate in a "real"
or "objective" sense. As I have said before, it matters little for the purpose
inthis context whether such argument was made by Respondent as an
alternative argument or not.
Respondent's new fonn of argument no doubt is attributable to the
Court's holding in rg62 that Article 7, the compromissory clause, bas
survived with full forceand effect. Respondent's present argument is, of
course, a new form of addressing itself to a basic issue prevwusly before
the Court, and decided by it.
The Applicants submit respectfully that it should not be presumed
that the Court would have reached a different conclusion bad Re
spondent's new fonn of argument been advanced to the Court at an
earlier stage.
The new form of argument is based upon factual and other considera
tions ali of which were available to the Court, or known to it, in rgso
and again in rg6z. Each time, the Court held that the Mandate had not
lapsed.
The Court, in rg62, held that:
"The validity of Article 7, in the Court's view, was not affected
by the dissolution of the League, just as the Mandate as a whole
is still in force for the reasons stated above." (l.C.J. Reports rg62,
p. 335-)
Respondent's new fonn of argument, moreover, could not be sustained
unless the Court should find, both- .
(r)that Article 6 and Article 7, paragraph r, bath totally lapsed as
a matter of law, rather than that they merely became inoperative, and
(z) that the rg6z Judgment was wrong in holding that the right of
judicial protection survived the demise of the League.
In other words, the logic of Resyondent's contention leads to the
anomalous conclusion that the rg6z Judgment really settled and decided
nothing, except that of according to the Applicants the opportunity
of presenting to this honourable Court arguments conceming the inter
pretation and application of a mandate which does not exist.
The essentiality of judicial protection was a major issue joined in the
preliminary objections phase of these proceedings. That the issue was
settled by the rg6z Judgment is conceded by Respondent, although the
Court's judgment is attributed, in Respondent's circumlocution, to "the
Majority Members". ·
Respondent admits that its arguments in support of the lapse of the
compromissory clause of Article 7, along with the Mandate:" ... involve
a reconsideration of issues dealt with in the Preliminary Objections
proceedings ... ". That is from page 174 (II) of the Counter-Memorial,
Book II.
Although Respondent's argument in support of its second alternative
contention that the Mandate as a whole has lapsed proceeds from a
sound point of departure, that is, the nature, origin and purposes of the
mandates system, and draws the sound inference therefrom that inter
national supervision was conceived as a basic obligation, as an essential130 SOUTH WEST AFRICA
and integral element of the system, the more logical conclusion following
Respondent's correct premises in this context would no doubt have
been Respondent's abandonment of its first alternative contention.
The premises which Respondent reserves exclusively for its second
alternative contention are decisively relevant to its first one as weiL
And this appears clearly, in our respectful view, from Respondent's own
formulation of the matter, as follows, in its Rejoinder:
"... as soon as the premise is accepted or assumed that accounta
bility is essential forhe existence of the Mandate, then an enquiry
whether the Mandate could and did survive the dissolution of the
League cannat be divorced from an enquiry whether accountability,
as prescriJ:>edin the Mandate, could and did survive such dissolution:
the two aspects of the enquiry then form one integral whole, and
neither aspect can be answered separately from the other".
That is on page 74 of the Rejoinder, (V).
With this cogent formulation the Applicants express full concurrence.
The difficulty is that Respondent applies this formula only when it
suitsits purpose to do so, that is to say, in respect of its second alternative
contention, whereas the Applicants apply Respondent's formulation
without reserve.
Now, I turn, with your permission, Mr. President, ta the legal issues
involved in the replacement of the League by the United Nations. This
will be covered more fully in Part C of this phase of the Oral Proceedings,
and I would endeavour, for the sake of the Court's convenience, to
attempt to summarize them briefty at this point.
Mr. President, 1 have endeavoured to summarize the premises and
contentions supporting the Applicants' submission that a duty to submit
to international supervision was embedded in the Covenant and in the
Mandate, as part of their essence, and that it must be presumed ta
have been the common intention of the parties to those instruments that
international supervision should continue so long as the mandate itself
endures.
With your permission, Mr. President, 1 turn now to a brief summary
of the arguments, which will be more fully presented in Part C of this
phase of the proceedings, and which, as 1 have said, underly the Appli
cants' contention that the United Nations has replaced the League as
the supervisory organ in terms of Article 6 and Article 7, paragraph r,
of the Mandate.
The Applicants' submissions in this respect refiect the law of the case
as determined by this honourable Court in the 1950 Advisory Opinion.
In that Opinion the Court held:
"... that the General Assembly of the United Nations is legally
qualified to exercise the supervisory functions previously exercised
by the League of Nations with regard to the administration of the
Territory, and that the Union of South Africa is under an obligation
to submit to supervision and control of the General Assembly and
to render annual reports toit''.
That is the end of the quote from page 137 of the 1950 Advisory Opinion.
The questions whether the United Nations had replaced the League
as supervisory organ and whether Respondent had manifested its consent
to such replacement were fully discussed by Rcspondent in the 1962
proceedings. ARGUMENT OF MR. GROSS
131
It was, of course, in support of this argument that Respondent adduced
its so-called "new facts" contention to justify reversai of the rgso
Advisory Opinion.
The Court in 1962 did nof expressly hold that the United Nations
General Assembly has replaced the League Council as the supervisory
organ, inasmuch as that issue did not arise directly and pertinently for
explicit decision inthat form. However, the Court's holding, and I quote,
"that the Mandate as a whole is still in force", coupled with its finding
that "all important facts were stated or referred to in the proceedings
before the Court in rgso" renders it clear beyond doubt, in the Appli
cants' respectful submission, that the Court in 1962, at the minimum,
rcaffirmed the rationale of the 1950 Advisory Opinion in respect of the
survival of Article 6 and of Article 7, paragraph r, along with the in
separably interrelated provision for judicial protection accorded under
Article J, the second paragraph, of the Mandate.
Under Respondent's premise, that is, that of a limited original obliga
tion to report to a specifie supervisory organ, the disappearance of such
an organ without more would necessarily have ended the obligation.
It would legally follow from such a premise that a wholly new under
taking would have been necessary to amend the original agreement in
a material and, indeed, essential respect. It likewise would follow that
an amendment of such a nature would have to be established by evidence
so unequivocally clear as to permit of no other reasonable conclusion.
These propositions, which are laboured at sorne length in Respondent's
pleadings, are quite self-evident in the Applicants' respectful view. The
difficulty with these propositions, on the basis ofthe Applicants' major pre
mises, is that they are irrelevant because they proceed from a false premise
regarding the essential nature of the Mandate which isbefore the Court.
In the light of the irrelevance of these propositions, in the Applicants'
point of view, the Applicants do not think it necessary to make extensive
and detailed argument to support the conclusion that the events and
transactions during the relevant period do indeed permit of no other
conclusion thau that, had a wholly new agreement been necessary to
amend the Mandate in an essential respect at that time, such a new
agreement was, in fact, concluded among ali the parties to those trans
actions and events. Although the Applicants do not deem it necessary
or appropriate to make an extensive argument to support such a proposi
tion, because of our view of the correct major premise which we submit
to the Court and upon which we base our case and rely, it would never
theless be demonstrable in our view that such a conclusion, even one
based upon a false premise of the necessity for explicit showing of an
unequivocally clear, affirmative agreement to accept the supervision of
the new organ, and all these elements, would appear to be consistent as
a conclusion with what this honourable Court had to say in the rgso
Advisory Opinion concerning these same events and transactions; in
particular, the Court's explicit finding that the Respondent's "declara
tions constitute recognition by the Union Government of the continuance
of its obligations under the Mandate ... " as well as the Court's finding
in 1950 that the League resolution of 18 April 1946, in favour of which
Respondent voted, and I quote again from the Opinion, "presupposes
that the supervisory functions exercised by the League would be taken
over by the United Nations". And that is at page 137 of the rgso Ad
visory Opinion.132 SOUTH WEST AFRICA
However, Mr. President, whatever conclusions might be reached in
respect of the degree or quality of tru th necessary to demonstrate a new
amendment under the false premise from which Respondent proceeds,
a differentset of considerations, we submit, is applicable if one proceeds
from the premise that the obligation of international accountability is
an essenhal and integral element of the i\Iandate and that it must
survive so long as the Mandate itself endures. It would follow from this
premise, upon which the Applicants rest, that the only remaining
question-although an important one indeed-would be whether the
function of supervision passed to the nearest equivalent of the League,
to wit, the United Nations. If not, these Articles would not have lapsed,
but would have become inoperative for lack of a supervisory organ with
capacity to replace the League Council. In such a case, and pending
establishment of an international administrative organ, if any, the only
continuing method for insuring international supervision over the sacred
trust would be that of judicial protection, as a fust and only recourse,
rather than as the "final bulwark".
The answer to the question whether Articles 6 and 7, paragraph 1,
of the Mandate became inoperable, or whether the United Nations
replaced the League as the supervisory organ, hinges upon both a
legal analysis of the "international rules" regulating the Mandate, and
upon ascertainment of the intentions of the parties with respect to the
events and transactions which transpired during the period when the
League was dissolved and the United Nations began operations.
With respect to the international rules regulating the Mandate, the
Applicants have never conceived, nor do they do so now, that the
United Nations acquired title to the League's supervisory power over
mandates by virtue of sorne general international legal principle of
devolution or succession, aliunde the mandate.
It is true that the phrase "automatic succession" is employed on one
occasion in the Applicants' written pleadings, and that is in the written
observations. The Applicants regret any misleading impression which
may have been created by the use of that phrase. As Respondent itself
points out, no concept of "legal succession" was advanced in the Oral
Proceedings by the Applicants, nor in the Applicants' Reply and, as
Respondent correctly says, any suggestion of automatic succession is,
indeed, "largely academie". (V, p. 154-)
I welcome this opportunity to clear up this matter, lest it remain as a
source of confusion or doubt to this honourable Court.
Reference to "succession" in the Applicants' pleadings is intended
to refer to the fact that there was no mechanical or operational problem
of succession. The terms "replacement" or "substitution", might, indeed,
have better conveyed the intended sense, and the Applicants would have
preferred to have used them and regret that they did not.
The Applicants, with respect, fully associate themselves with the
declaration made by President Winiarski in connection with the 1956
Advisory Opinion. In that declaration, the learned Judge commented,
inter alia:
"... 1 think that as the Opinion of 1950 was not based on the idea
ofthe United Nations as a successor in title of the League of Nations,
the question of a devolution of the powers of the Council of the
League of Nations to the General Assembly does not arise. I am in
agreement with the minority opinion in considering that the whole ARGUMENT OF MR. GROSS 133
structure of the Opinion of 1950 was founded on the objective
elements of the situation which arose as a result of the disappearance
of the League of Nations, and that that Opinion found in the
General Assembly the organ qualified to exercise those functions
wlùch could not be allowed togo by default." (l.C.]. Reports I956,
p. 33·)
The Applicants also submit, with .respect, that the last-quoted clause
of President Winiarski's opinion-"which could not be allowed togo by
default" -is of significance in dispelling any doubt as to the meaning
of the Court's finding in the 1950 Advisory Opinion that:
"To retain the rights derived from the Mandate and to deny the
obligations thereunder could not be justified.'' (I.C.J. Reports I950,
p. 133·)
TI:Jminority opinion in the 1956 Opinion, to w~ch President Winiarski
referred, was that of the learned Judges BadaWI, Basdevant, Hsu Mo,
Arrnand-Ugon, and Moreno Quintana. In that opinion, the learned Judges
commented as follows, inter alia: .
"The spirit of the Opinion [i.e., the 1950 Opinion] thus fully
confirms what is expressed by its letter: the continuity of the
Mandate and of the international obligations of the Union of South
Africa wlùch result therefrom." (l.C.]. Reports r956, p. 65.)
"The Opinion does not base itself on the idea of succession, on the
idea of the transfer of powers.
The Court, unattracted by the idea of succession, of the transfer of
powers, based itself on the objective elements of the situation-thé
importance of international supervision under the Mandates System
as well as the provisions of the Charter of the United Natwns."
(Ibid., p. 66).
And, as was said by ]udge Bustamante, in lùs separa te opinion in
1962: .
"Following the scheme of ail conventions, in the Mandate agree
ments provision is made in such a way asto guarantee the function
ing of the system during the whole period of its duration." (I.C.J.
Reports I962, p.382.)
Evaluation and appreciation of the events, transactions and under
takings which occurred in 1946, and during this period, accordingly,
must proceed from this premise. Seen in the light of this premise of the
continuity of the Mandate, and of the international obhgations which
result therefrom, and the guarantee of the functioning of this system
during the whole period of its duration, it becomes obvious, in the
Applicants' respectful submission, that all the parties, including the
Respondent, the League of Nations, the United Nations, acted in a
manner entirely consistently with the "objective elements of the situation
which arose as a result of the disappearance of the League of Nations",
in the words of the minority opinion, from wlùch I have quoted, and of
President Winiarski's opinion, as I understand it.
In Part Bof this phase of the Oral Proceedings,immediately following,
my colleague, Mr. Moore, will present to the Court the relevant events
and undertakings which took place during the period when the United
Nations Charter was formulated, the League of Nations was dissolved,
and the United Nations commenced operations.134 SOUTH WEST AFRICA
In the light of these events and undertakings, it will be obvious, in
our respectful submission, that the League of Nations took all action
which was appropriate under the circumstances, to make clear the
intention of the Members, including the Parties to these proceedings,
that despite its dissolution the obligations under the Mandate would
continue-
"... until other arrangements ~ave been agreed between the United
Nations and the respective mandatory Powers". (Resolution of the
League of Nations of 18 April 1946; quoted in 1, pp. 42-43.)
Respondent, which had made statements indicative of its desire to
annex the Territory, manifested its intention to seek agreement with the
United Nations to such an arrangement. Respondent voted in favour
of the 18 April 1946 resolution, thereby acquiescing in what the Court
terrned a presupposition of the League that the United Nations would
take over the supervisory functions of the Mandate, for what was, indeed,
hoped would be a short, transitional period, during which arrangements
would be completed for trusteeships under the plan of the United Nations
Charter.
In the event, the expectabon of the trusteeship system becoming
operative was fulfilled,with the sole and single exception of the Mandate
for South West Africa. Ali other mandated terri tories, without exception,
either became independent, or were placed under trusteeship, so far as
the Applicants are aware.
Pursuant to the 18 April 1946 resolution, to whîch I have referred,
for which Respondent voted, Respondent did, in fact, seek thereafter
to make "other arrangements" with the United Nations, thus recognizing
the competence of the latter, in the prernises. No agreement, however, has
been reached. For its part, the United Nations affirmed its competence
by resolution 65 (I), of 14 December 1946 (I.C.]. Reports I950,at p. 143).
Renee, what was contemplated and hoped for as a brief. transitional
period, during which the mandate obligations would continue until
replaced by other agreed arrangements, has extended itself into one of
long duratwn, and continues to exist.
The validity of the foregoing propositions, and the legal conclusions
which, in our view, are inescapably to be derived therefrom, have been
affirmed by this honourable Court. They constitute the reasons for which
the Court, in its 1950 Advisory Opinion, concluded, in the words of the
Court:
"... that the General Assembly of the United Nations is legally
qualified to exercisethe supervisory functions previously exercised
by the League of Nations with regard to the administration of the
Territory, and that the Union of South Africa is under an obligation
to submit to supervision and control of the General Assembly and
to render annual reports toit". (I.C.]. Reports r950,p. 137.)
Mr. President, in the light of the same events and transactions,
including statements made and actions taken by Respondent, this
honourable Court concluded, in its 1962 Judgment, that:
"There could be no clearer recognition on the part of the Govern
the continuance of its obligations under the
ment of South Africa of
Mandate for South West Africa, includin_g Article 7, after the
dissolution of the League of Nations." (I.C.j. Reports I962,p. 340.) ARGUMENT OF MR. GROSS
135
Mr. President, and honourable Members of the Court, it seems, with
respect, that there is an inescapable implication in the phrase "including
Article7'',and the implication must be, it seems tous, that the "normal
securities", in the words of the Court, likewise continued.
Now I turn very briefly, Mr. President, with your permission, to the
asserted violations of Article 4 and Artic2,paragraph r, of the Mandate.
The Applicants will deal at the later, if 1 may cali it, fact stage of these
proceedings, with the issues presented by Respondent's asserted viola
tions of Article 4 ofthe Mandate, the so-called "military clause", and
of Article2,paragraph 1, of the Mandate, which, together with Article 22
of the Covenant, prohibits Respondent from treating the Territory in a
manner inconsistent with its international status, including impediment
of opportunities for self-determination by the inhabitants of the Terri
tory. It does appear pertinent, however, at this legal stage of these
proceedings to note that the controversy placed before the Court with
respect to factual issues involved in the so-called "military clause" of
Article 4; are before the Court as a result of the lack, or default, of
administrative supervisory authority, which would be in a position to
ascertain the true state of affairs. The controversy thus placed before
the Court asto the accuracy, or otherwise, of relevant facts would not,
and should not, have been necessary if administrative supervisory
machinery were operating in accordance with the intentions of the
authors of the mandates system and the international rules regulating
the Mandate.
The facts asserted by the Applicants with respect to this matter
must, under the circumstances, be asserted on what would be called,
in jurisdictions with which I am familiar, information and belief. It is
submitted, therefore, that the very fact that there is a controversy
regarding facts, asto which there should be no controversy necessary, is
in itself confirmatory of the essentiality of administrative supervision
in the scheme of the Mandate.
!\Ir. President, and Members of this honourable Court, I have now
concluded Part A of this phase of the Oral Proceedings, consisting of a
summary presentation of legal issues pertinent to Applicants' severa!
submissions, as set out in the Memorials at 1, pages 197-198.
As I have stated earlier, Mr. President, with your permission, this is
to be followed by Part B, which will deal with the background and
history of relevant events and transactions; Part C, which will deal with
legal issues relevant to obligations to submit to international supervision,
and Part D, which will deal with legal issues relevant to obligations
toward the inhabitants of the Territory, and corresponding to the sacred
trust of civilization, as referred to in Articl22 of the Covenant of the
League of Nations.
1 beg leave, Mr. President, to introduce my colleague, Mr. Edward
R. Moore, who will present to the honourable Court, if it please the
Court, Part B of this phase of the Oral Proceedi o ~wi,, the history
of events and transactions relevant to a full consideration of the legal
issues joined inthe cases at bar. 4· ARGUMENT OF MR. MOORE
(OUNSEL FOR THE GoVERNMENTS OF ETHIOPIA AND LIBERIA
AT THE PUBLIC HEARINGS OF 18 AND 19 MARCH 1965
Mr. President and Members of the honourable Court, please be assured
of my appreciation of the great honour of this opportunity to appear
hefore you once again to assist in the presentation of Applicants' argu
ments m the South West Africa cases.
PART B
Mr. President, since so much of Applicants' dispute with Respondent
tums on a proper evaluation and appreciation of the ori~ andncontents
of the mandates system, I trust you will deem it appropnate at this point
to review the historical background, with partrcular reference to the
basic nature of the mandate agreement for South West Africa and to
Article 22 of the Covenant of the League of Nations.
I think it is important to note, Mr. President, that this honourable
Court, both in the 1950 Advisory Opinion and in the 1962 Judgment,
commenced its analysis with a review of the nature of the mandates
system. Applicants also have presented an analysis of the nature of the
mandates system prior to setting out an evaluation of Respondent's
obligations thereunder.
This is important because, in our submission, it is not possible to reach
a proper evaluation and appreciation of Respondent's legal obligations
under the mandate agreement without fust understanding the essential
nature of the mandate system. Any of the severa! obligations contained
in the mandate agreement for South West Africa is best understood in
the light of the basic nature of the mandates system as a whole.
However, Respondent's approach appears to be based on an entirely
different premise.In an attempt to limit the scope of the severa! mandate
obligations, Rcspondent has tended to begin with the wording of the
particular obligations it assumcd with respect to South West Africa, and
toinduce therefrom its version of the basic nature of the mandates system.
Thus, Mr. President, to provide one illustrative example: Respondent,
after citing the provisions of the Covenant and the mandate agreement
for South West Africa with regard to the obligations of international
accountability, concluded that the "content" of the obligation was not
an obligation to submit generally to "international supervision" or to
supervision by the "international community", or the like, but was
rather an obligation to--
"report and account to a specifieorgan of a specifiorganization
ofcertain of the nations of the world, namely, the Council of the
League of Nations". (Counter-Memorial, n.p. II9; italics in original
text.}
This concentration on the form, rather than the substance and basic
nature of the mandates system, has in fact led to the present dispute
between the Respondent and the Applicants, and to the Respondent's
differences withthe United Nations. ARGUMENT OF MR. MOORE 137
In an attempt, then, to clarify still further the basic and essential
nature of the mandates system, I should like to turn, Mr. President and
Members of the Court, to a review of the essential features of that
·system.
The authority of Respondent in the Mandated Territory of South West
Africa derived from the severa! international agreements and treaties
which became effective immediately after the First World War.
It will be recalled that pursuant to Articlesn8 and II9 of the Treaty
of Versailles, Germany renounced all of ber overseas possessions, including
German South West Africa, in favour of the Principal Allied and Asso
ciated Powers.
The proper disposition of the former German colonies was a source
of much debate among the Principal Allied and Associated Powers, while
the solution actually arrived at, and the significance thereof, constitute
an important source of the present dispute between the Applicants and
.the Respondent.
While it was clear at the Paris Peace Conference in 1919 that there
was support for territorial annexation, it was equallr clear that opposition
to such a viewpoint, even with regard to all o the former German
colonies, was preponderant.
Of great importance in this connection was the presentation by Presi
dent Wilson, on 8 January rgr8, of his Fourteen Points. Point No. 5 was
as follows:
"A free, open-minded and absolutely impartial adjustment of all
colonial daims, based upon a strict observance of the principle that
in determining ail such questions of sovereignty the interests of the
populations concerned must have equal weight with the equitable
daims of the government whose title is to be determined." (Quoted
in Miller,D. H., The Drajting of the Covenant (1928), Vol. I, p. ror.)
On 29 October 1918, the Cobb-Lippmann Memorandum was published
elaborating President Wilson's Fourteen Points, of which the fifth was
explained, in part, by C. Seymour in his publication entitled The Intimate
Papers of Colonel House as follows:
"It would seem as if the principle involved in this proposition
is that a colonial power acts not as owner of its colonies, but as
trustee of the natives and for the interests of the society of nations,
that the terms on which the colonial administration is conducted
are a matter of international concem and may legitimately be the
subject of international inquiry and that the peace conference may,
therefore, write a code of colonial conduct binding on aH colonial
powers." (Seymour (ed.), The Intimate Papers of Colonel House
(1926-1928), Vol. IV, pp. 194-195.)
1\Ir.President, if this was true of colonies, it applied a fortiori to
mandated territories.
On 7 May 1919, the Principal Allied and Associated Powers, acting
through the instrumentality of the Supreme War Council, formally
decided that the territory of German South West Africa should be held
under mandate by the Union of South Africa.
On 27 June 1919, draft mandate instruments prepared by Lord
Milner were circulatcd and discussed among the Principal Allied and
Associated Powers. It was then agreed that a mandate commission should
be established for the purpose of drafting the final mandate agreements. SOUTH WEST AFRICA
The commission was to consist of one representative from each of the
five Principal Allied and Associated Powers.
Although Article 22 of the Covenant of the League of Nations became
effective on ro January 1920, it was not until the end of the year 1920
that the mandates system became effective. A draft mandate for German
South West Africa, prepared by the British Govemment and conferring
the Mandate upon His Britannic Majesty on behalf of the Union Govem
ment, was submitted to the Council of the League on 14 December 1920
and was confirmed by the Council on 17 December of the same year.
Mr. President, 1 will now address myself to the importance of the
principle of non-annexation.
[Public hearing of I9 Marck I965]
Mr. President, with your permission 1 will now continue discussion
of Part B of this phase of the Oral Proceedings.
Yesterday 1 began by stressing the necessity to this case of a clear
understandmg of the basic nature of the mandates system, and I endeav
oured to show that the overwhelming viewpoint at the Paris Peace
Conference was against annexation of territories. 1 will now address
myself to the importance of the principle of non-annexation.
In the Advisory Opinion of II July rgso, this honourable Court stated:
"When a decision was to be taken with regard to the future of
these possessions as weil as of other territories which, as a conse
quence of the war of I9I4-I918, had ceased to be under the sovereign
ty of the States which formerly governed them, and which were
inhabited by peoples not yet able to assume a full measure of self
~ovemment t,o principles were considered to be of paramount
1mportance: the principle of non-annexation and the princip le that
the well-being and development of such peoples form 'a sacred trust
of civilization'.(I.C.].Reports I950, p. 131.)
The Court in 1950 went on to say that for purposes of-
"giving practical effect to these principles, an international régime,
the Mandates System, was created by Article 22 of the Covenant of
the League of Nations". (!Md.}
It should be noted that the principle of non-annexation had broad
support during the period prior to the Paris Peace Conference. Reference
bas alreadv been made to the fifth of President Wilson's Fourteen Points,
and the interpretation thereof by the Cobb-Lippmann Memorandum.
Another important step in the development of Article 22 of the
Covenant of the League of Nations was a meeting of the Imperial \Var
Cabinet on 28 November rgr8. At this meeting it was generally agreed
that as part of the general mandates scheme-
"there would be a right of appeal from the mandatory power to the
League of Nations on the part of anyone who considered himself
ill-treated or claimed that the conditions set clown by the League
of Nations were not being fwfilled. Subject to such an appeal,
which might involve the League of Nations withdrawing the mandate
in the case of deliberate and consistent violation of its conditions,
the mandate wowd be continuons until such tirne as the inhabitants
of the country themselves were fit for self-government." (Lloyd
George, The Truth About the Peace Treaties (1938), Vol. I, p.nS.) ARGUMENT OF MR. MOORE 139
It can be truthfully asserted that there was a "compromise'' on the
issue of annexation, but it is also apparent, even obvions, that the
solution finally accepted was a "compromise" only in so far as there was
no provision for the "open door" in the "C" Mandate provisions even
tually adopted as Article 22, paragraph 6, of the Covenant.
Professor Quincy Wright has summarized the so-called "compromise"
reached by the Council of Ten as follows:
"President Wilson had thus prevented annexation, got the prin
ciple of mandates accepted for ali the territories, and postponed
final allocation of mandates until the League of Nations was in
operation, though he had been obliged to recognize the prior daim
of the Occupying Powers to receive mandates, the special daim of
the Dominion in respect to the open door and of France in respect
to recruiting natives." (Wright, Mandates Under the League of
Nations (1930), p.41.)
There is no indication by this leading scholar that the basic principle
of non-annexation was compromised in any way; and it can only be
concluded from his and other publications on this point that Applicants'
statement in the Memorials that the mandates system represents "a
victory for the opponents of the principle of annexation" is entirely
correct.
Mr. President, as stated by Applicants in the Reply, the non-annexa-
tien principle underlying the mandates system-
"is a negative form of expressing the affirmative objective of
developing the Mandates, as rapidly as possible, towards sovereignty
of their own". (Reply, IV, p. 238.)
Respondent argues that is has acknowledged the principle of self
determination, but states that-
"Even full annexation of a territory, and the exercise of complete
sovereignty over it (and a fortiori any situation falling short thereof,
such as one 'not far removed from annexation') would clearly not be
inconsistent with the recognition of a duty, legal or otherwise, to
lead its inhabitants towards self-determination, self-govemment or
even independence." (Rejoinder, V, pp. 17-18.)
Applicants do not deny that at any given point in time, the exercise
of complete sovereignty over a territory may not necessarily be in
consistent with the recognition of a duty to lead the inhabitants of that
territory towards self-government and self-determination. The question,
however, is not one of theoretical recognition of a duty, but the practical
steps to be taken to carry out that duty.
As the record herein makes clear, after the First World War Respon
dent requested permission to annex South West Africa, but was turned
down by the Paris Peace Conference. In 1935 Respondent put before
the Permanent Mandates Commission a proposa! for the incorporation of
South West Africa as a fifth province of the Union, but when met with
a critical attitude by most of the members of the Commission, decided
not to go ahead with its plan for incorporation.
In 1946 Respondent once more placed a proposed plan of incorporation
before the "competent international organ"-the "competent inter
national organ" is a quotation of their very words, and in this case they
referred to the General Assembly of the United Nations. Again Respon
dent's request was tumed down. Ever since the refusa! of the General SOUTH WEST AFRICA
Assembly in 1946 to accede to the request for incorporation, Respondent
has carried out a series of steps each designed to bring the Territory
of South West Africa, to use Respondënt's phrase again, into "doser
association" with the Republic of South Africa. Indeed, Respondent has
argued that-
"the interests of the Territory and of the inhabitants may at
particular stages be best served-as has in fact been the case
regarding South West Africa-by progressive steps of doser associa
tion". (Counter-Memorial, IV, p. 6g.)
Thus, Mr. President, Respondent's position appears to be that so
long as it says that it recognizes a duty to prepare the inhabitants of
South \Vest Africa for self-government and self-determination, there can
be no violation of the mandate obligations even if, after 40 years of
mandatory administration, Respondent is still carrying out "progressive
steps of closer association".
The historical record demonstrates the importance which the founders
of the mandates system attached to the principle of self-determination.
Thus, at the 28 November xgr8 meeting of the Imperial War Cabinet,
it was generally agreed that-
"the mandate would be continuons [subject to appeal in case of ill
treatment] until such time as the inhabitants of the countries
themselves were fit for self-government". (Lloyd George, op. cit.,
Vol. 1,p. nS.)
In his pamphlet entitled "The League of Nations-A Practical
Suggestion" General Smuts endorsed the principle of "self-determination
or the consent of the governed to their foim of govemment" (Miller,
D. H., The Drafting of the Covenant (rgz8), Vol. Il, p. 27), although he
exduded the German colonies in Africa and the Pacifie from his plan.
General Smuts had conceived of the mandates system as, to use his
words, a "temporary expedient" (see Miller, op. cit.p. 36) and he did
so with the strong implication that the system was to be a stepping stone
towards self-government and self-determination.
President Wilson in his Second Paris Draft of 20 January rgrg added
the following provision: in his words-
"The object of ali such tutelary oversight and administration on
the part of the League of Nations shaH be to build up in as short
time as possible out of the people or terri tory under its guardianship
a politicalunit which can take charge of its own affairs, determine
its own connections, and choose its own policies. The League may
at any time release such a people or a territory from tutelage and
consent toits being set upas an independent unit." (Miller, op. cit.,
p. 104-)
This statement of President Wilson demonstrates dearly how far
removed was his conception of self-determination from the conception
now held by Respondent. The phrase "as short time as possible" indicates
the view of President Wilson that something more than "progressive
steps of doser association" would be required from mandatory powers
after decades of manda tory administration. The phrase "a political unit"
indicates his view that the concept of self-government and self-determina
tion meant the establishment of a political unit, and not severa! political
units. ARGUMENT OF MR. MOORE
The cited paragraph from President Wilson's Second Paris Draft was
carried intact into Wilson's Third Paris Draft. He expressed his view
in the Council of Ten on 27 January 1919 as follows:
"Where people and territories were undeveloped [the Mandatory
Power should] assume their deve1opment so that, when the time
came, their own interests, as they saw them, might qualify them
to express a wish as to their ultimate relation ... The fundamental
idea would be that the world was acting as trustee through a
mandatory, and would be in charge of the whole administration
until the day when the true wishes of the inhabitants could be
ascertained." ([1919] Foreign Relations of the United States, Vol. III
(Paris Peace Conference), p. 741.)
The words "as they saw them" in this passage again point to the
discrepancy between the concept of self-determination as understood by
the founders of the mandates system and as construed by Respondent.
As discussed inthe Reply, an indication that the framers of Articl22
of the Covenant viewed self-determination of the inhabitants of mandated
territories as important,and eventual self-government as a necessary
development, is the presence of the word "yet" in Arti22, paragraph r.
The paragraph reads: "Territories ... which are inhabited by peoples
not yet able to stand by themselves under the strenuous conditions of the
modern world ... "
The importance of the concept of self-determination to the Paris Peace
Conference was summarized by Hall, a leading authority on the mandates
system, as follows:
"As conceived by the Paris Peace Conference, the Mandates
System was not merely an expedient limited to a particular situa
tion; it was also thought of as something essentially temporary in
character. The assumption was that it would come to an end when
the various mandated terri tories were able to 'stand by themselves'."
(Hall, H. D., Ma1ulatesDepende~ tndiTeusteeship (1948), p. 31.)
Another development of great significance was the refusai of the
Milner Commission to adopt a proposed article for "C" Mandates which
provides that:
"If it should occur that the natives of the mandated territory
express the desire to be united to the mandatory power and the
Allied and Associated Powers consider that this proposai is made
in good faith and with the approval of the majority of the population
and so as to favour its best interests, the Allied and Associated
Governments may accede to this request. In this case, the mandated
territoryshall be incorporated into the Mandatory Power to all
useful ends,and the administration established by the present act
shall cease to exist." (Conférencede la Paix, 1919-1920, Recueil des
Actes de la Conference, Partie VI, p. 356.)
This proposed amendment was discussed at a meeting of the ?.lilner
Commission on 10 July 1919. M. Simon stated during the discussion
that he felt this article was dangerous in that, to use his words, "it would
be pure mockery to permit natives to express their desiderata if they are
in conformity with those of the Mandatory Power". (Ibid., p. 354.)
Upon his suggestion, the article was dropped. There was no later discus
sion of re-insertion of this provision, eithcr by the i\blner Commission, SOUTH WEST AFRICA
or during later discussions among the Principal Allied and Associated
Powers and in the Council of the League of Nations. As is obvious from
the text, this article would have made another significant distinction
between "B" and "C" Mandates, and its rejection may be interpreted as
evidence of the tme nature of the concept of self-determination as viewed
by the founders of the mandates system.
Mr. President, it is clear, in Applicants' submission, that the basic
principle of self-determination includes two necessary elements: first,
an independent political unit; and second, the free choice of the in
habitants.
With your permission, I should like to turn now to the relevant
historical background with specifie regard to the basic obligations of
international accountabi1ity contained in Article 22 of the Covenant of
the League of Nations and in the mandate agreement for South West
Africa.
As I have already indicated, l\Ir. President and Members of the Court,
the fifth of President \Vilson's Fourteen Points of 8 January 1918
provided a form of international control. As elaborated in the Cobb
Lippmann Memorandum of October 1918 this was to mean that "a colo
nial power acts not as owner of its colony, but as true trustee for the
natives and for the interests of the society of nations, that the terms on
which the colonial administration is conducted are a matter of inter
national conccrn and may Iegitimately be the subject of international
inquiry". (Seymour (ed.), The Intimate Papers of Colonel House (1926-
1928), Vol. IV, p. 195.)
The pre-Conference evaluation of the mandates system shows clearly
the interpretation projected by the writers and planners concemed with
it. Thus, P. H. Kerr, of the Round Table, stated that the Mandatorv
Power "ought to govern the dependency as trustees for ali mankind' •
(Grant, A. J.,Introduction to the Study of International Relations (1916),
p. The New Statesman put the "sacred trust" argument as follows:
"If the Allies determine at the end of the war to retain control
of the German colonies they might and ought to give a solemn
undertaking to hold those territories intrust for civilization, to trcat
the interests of the natives therein as paramount ... " (New States
man, VII, p. 583 (1916).)
Even General Smuts, who felt that the proposed mandates system
should not be applicable to the Territory of South West Africa, felt that
"the disposai of these colonies should be decided on the principles which
President Wilson has laid down in the fifth of his celebrated fourteen
points". (Miller, op. cit., Vol. II, p. 28.)
Perhaps the most succinct statement of the nature of the obligation
of international accountability was made by President Wilson himself.
To use his words. "the administration will be so much in the view of
the world that unfair processes could not be successfully attempted".
(Written Statemcnt of the United States before the International
Court of Justice: (I950) I.C.]. Pleadings, Oral Arguments, Documents,
p.107.)
Obligations of international accountability could only be performed
through an international body. Thus, it was natural that the discussions
concerning the projected League of Nations in tum provided much of the ARGUMENT OF MR. MOORE 143
opportunity for suggestions as to possible means of international super
vision by the League of mandated areas.
The result of this was that, although the writers, commentators, and
statesmen differed on the technical jorm that international supervision
of mandated areas would take, there was unanimous agreement on the
desirability and necessity of international supervision of mandated areas,
and the corresponding obligation of international accountability.
For example, J. S. Hobson, a member of the group contributing to
the Round Table, advocated a "Standing International Council" which
would select States to receive the right to administer areas liberated
from the imperial control of Turkey or Germany, provided that the
chosen States did so in a manner not prejudicial to the interests of other
nations. (Hobson, J.S., Towards International Government (rgrs). p. 141.)
P. H. Kerr soon cxtended the idca to the protection of the well-being
of the inhabitants of the territories, statîng that the ruling powers "are
to govem the dependency as trustees for ali mankind". (Grant, op. cit.,
p. IJg.)
As the Peace Conference drew near, and as proposais for a League of
Nations grew more precise and detailed, it was natural that the founders
of the League should conceive of international supervision and inter
national accountability as duties to be carried out through the instru
mentality of the projected League. Thus, the members of the Round Table
published in the December rgr8 issue an article on the German colonies
which proposed that supervision and ultimate control of mandated
areas be placed in the bands of the League. (Round Table, IX, pp. 1-47,
at p. 27.)
Shortly thereafter, General Smuts devotcd a major portion of his
publication A Practical Suggestion to the details of the mandates system
which was to be based on the principles of no annexations and of self
determination. His basic thesis was, in his words, that "any authority,
control or administration which may be necessary in respect of these
territories and peoples, other than their own self-determined autonomy,
shall be the exclusive function of and shaH be vested in the League of
Nations and exercised by or on behalf of it". (Miller, op. cit., Vol. II,
p. 30.)
The substance of these provisions was taken by Smuts from the Round
Table article already cited, where provision for both international
accountability and the protection of inhabitants were clearly spelled out,
including the ultimate right of retraction and transfer of the mandate
by the international organization.
The broad mandates system embodied in Smuts' proposai was taken
up almost intact by President Wilson in the first two Draft Covenants
he wrote after reaching Paris. Wilson envisaged even stronger interna
tional control of the mandates system, and he offered a provision permit
ting the League "at any time'' to "release such a people or terri tory from
tutelage and consent toits being set upas an independent unit". (Ibid.,
p. 104.)
Renee, Mr. President, I think it clear that throughout the pre-con
ference evolution of the mandates system, the concept of international
supervision of the mandatory's execution of the mandates was dominant.
In the actual drafting of Article 22 at the Conference, this concept
remained of central importance.
That the founders of the mandates system, and the drafters of Article SOUTH WEST AFRICA
144
22 of the Covenant of the League of Nations were more concerned with
the general obligations of international accountability than with the
precise organ of the League to which the mandatory powers would
report, may be seen from the history surrounding the adoption of
Article 22, paragraph g, of the Covenant of the League. This article, it
will be recalled, states that:
"A permanent Commission shaH be constituted to receive and
examine the annual report of the Mandatory and to advise the
Council on aU matters relating to the observance of the Mandates."
The idea of a permanent Commission first emerged in the British "Draft
Convention" of 24 January. However, it was dropped from the Hankey
Latham draft of 28 January. (Scott, E., Official History of Australiaù~
the War of I9I4-I9I8 (1938), Vol. XI, pp. 781-783.)
The Hanke:y-Latham draft provided simply that ''in every case of
mandate, the mandatory State shall render ta the League of Nations
an annual report in reference to the territory committed toits charge".
(Miller, op.cil., Vol. 1, p. no.)
This is important, Mr. President and Members of the Court, because
the Hankey-Latham draft was adopted almost verbatim as Artic:le 22
of the League Covenant. A statement of the nature and principles of the
proposed mandates system, the Hankey-Latham draft was primarily
concerned with the general legal obligations of mandatory powers, and
not the precise form or technical body through which the obligations of
international accountability would be carried out. In short, the draft
was more concerned with the nature of the international obligations
undertaken by mandatory powers, rather than the precise form and
details of those obligations.
However, President Wilson, evidently aware of the illogic of having
no official body to receive and examine the annual report, stated in the
Council of Tenon 30 January, that "there must be a responsible body ...
to hear the self-expression" of the people under tutelage. ([1919}Foreign
Relations of the United States, Vol.III(Paris Peace Conference). pp. 788-
789.)
Thereafter, General Smuts submitted a draft of Article 22, paragraph 9.
to the League Commission on 8 February, and the clause was retained
without change down ta the final adoption of the Covenant on 28 April.
(Miller, op. ctl., Vol. II, pp. 272, 274-275.)
It seems fair, therefore, to conclude that the Hankey-Latham draft,
in sa far as it established a mandates svstem without a specifie League
organ to oversee the workings of that system, was rejected for its im
precision. However, it is apparent that the primary concern of the
founders of the mandates system was the obligation of international
accountability, and not the details which would spell out the manner in
which the obligations would be carried out.
l\lr. President, the provision in Articl22, paragraph 7, for an annual
report is, of course,t the very heart of the mandates system. As analysed
by one leading authority on the mandates system, "the annual reports
of the mandatory powers and their examination by the Commission were
the heart of the mandates system". (Hall, op. cit., p. 186.)
The idea of annual reports from colonial areas was a long-established
practice on the national level by the middle of the nineteenth century,
and the practice was discussed in the international realm at the Congress ARGUMENT OF MR. MOORE 145
of Vienna in r8r5, and again at the Brussels Afr·icanConference in r8go.
ln his A Practical Suggestion, General Smuts included a reference to
"periodic reports from the Mandatory (sic) State", although he did not
include such a stipulation in his final recommendation. (Miller, op. cit.,
Vol. Il, p. 32.)
The British "Draft Convention" of 24 January provided for annual
reports from mandatories of both "vested" territories and "assisted"
States. (Millerop. cit.Vol. 1,p. IOJ.) The provision in its final form was
included in the liankey-Latham draft of 28 January.
However, no further discussion ensued during the meetings of the
Council of Ten, or the League Commission. Thus, the annual report
provision, generally recognized as constituting a crucial means of main
taining international control overthe exercise of the mandate, was never
a source of debate during the drafting of Article 22 of the League
Covenant.
Y et it is apparent that the provision for an annual report was consid
ered of the most crucial importance by the founders of the mandates
system. The report submitted by the Belgian representative to the
League Council, Mr. Hyrnans, and Jater unanimously adopted by the
Council, rendered clear the broad scope of the annual report requirement:
"Is the Council to content itself with ascertaining that the
mandatory Power has remained within the limits of the powers
which were conferred upon it, oris it to ascertain also whether the
manda tory Power has made a good use of these powers, and whether
this administration has conformed to the interests of the Native
population?
It appears tome that the wider interpretation should be adopted.
Paragraphs r and 2 of Article 22 have indicated the spirit which
should inspire those who are entrusted with administering peoples
not yet capable of goveming themselves, and have determined that
this tutelage should be exercised by the State in question as manda
toriesand in the name of the League. The annual report stipulated
for in Article 7 should certainly include a statement asto 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 Nations Council,
P.V., 20/29(14 (8th Sess.), p. 187.)
The essential nature of the reporting requirement was thus made clear
by the League Council. For the Council caused the mandatory powers
to submit reports on their administration of the varions territories, and
examined such reports even prior to final approval of the mandate
instrument for the severa] mandated territories. Administration of the
mandated territories was allowed by the Council, prior to the approval
of the mandate instruments, only on condition that the reports be
submitted to the Council.
The Council thus made clear from the outset the essential and necessary
connection between administration of mandated territories, and the
corresponding obligation of international accountability. In so doi~,
the Council made manifest its understanding with regard to the bas1c
nature of the accountability obligation of the mandates system and
showed clearly that the nature of the obligation was, in its view, the
basic and controlling consideration. SOUTH WEST AFRICA
The essential nature of the obligation of international accountability
also emerges by reference to the history concerning the provisions of the
mandate agreements, requiring the consent of the Council for any
modification of the terms of the Mandate.
The draft submitted by the Milner Commission to the Principal Allied
and Associated Powers was in the following form :·"the consent of the
Council of the League of Nations is required for any modification of the
terms of this Mandate." ([1919] Foreign Relations of the Um"tedStates,
Vol. IX (Paris Peace Conference), p. 656.)
The Balfour draft, submitted to the Council of the League of Nations
on 14 December 1920, included the following clause:
"... the consent of the Council of the League of Nations is required
forany modification of the terms of the present Mandate, provided
that in the case of any modification proposed by the l\Iandatory,
such consent may be given by a majority". (Oral proceedings,
22 Oct. 1962, morning.)
The Secretariat of the Council, in its memorandum submitted on
IJ December 1920, recommended that the words following "Mandate"
be dropped, thus restoring the provision toits original form, as provided
in the draft submitted to the Principal Allied and Associated Powers by
the Milner Commission.
The significance of the above is readily apparent. By requiring the
unanimous consent of the Council for any proposed modification of the
terms of the Mandate, even if such modification were proposed by the
mandatory power, the founders of the mandates system were stating
implicitly that the obligation of international accountability was to be
interpreted liberally. Changes in the terms of the mandatory power's
administration should be subject to the strictest international super
vision.
Professor Quincy \Vright has summarized the afore-mentioned con
sideration as follows:
"Continuous international supervision is the essence of the
mandates system. lt focuses attention upon the problem of back
ward areas as concretely presented by the mandated area from the
native and the world points of view. Anyone is a poor judge in his
own case. and however it may try, a state has always found it
difficult to visualize a subject people except from the standpoint of
its own interests." (Wright, op. cit.,p. 585.)
Mr. President, it may be pertinent at this point to review the historical
background with regard to promotion of the material and moral well
being and the social progress of the inhabitants of the mandated territory.
Concern with the well-being and progress of the inhabitants of the
mandated areas was evidenced throughout the discussion of possible
types of mandates, prior to the Peace Conference.
The drafts submitted by Lord Milner, as the basis of discussion for
the "C" Mandates, at the first meeting of the l\Iilner Commission, contain
the following provision:
"The mandatory Power ... accepts the !I:Iandates to govern ... as
guarantor of the well-being and deveiopment [of the inhabitants of
the Mandated TerritoryJ." (Recueil, op. cit.p. 330.)
In the draft of the "B" Mandates, the same provision was inserted ARGUMENT OF MR. MOORE 147
in both the American and French drafts presented to the Milner Com
mission on 8 July 1919, with the addition in the case of both drafts of
the term "social progress". (Recueil, op. cit., p. 340 (Art. 2); p. 343
(Art. r) .) The provision for social progress was inserted in the "C"
Mandate draft in the 10 July revised text. For the fust time a separate
sentence was devoted to this provision for the well-being of the Natives:
"The Mandatory Power agrees to increase by ail means in its
power, the material and moral well-being and,social progress of the
natives of the Mandated Territory." (Recueil, op. cit., p. 330.)
The revised draft of the "B" Mandate agreement, dated 10 July 1919,
also contained a provision for the protection of the well-being of the
inhabitants, in virtually identical terms to that of the "C" Mandate.
(Ibid., p.361.) Both these provisions were retained unchanged through
the further deliberations of the Milner Commission. In the draft sub
mitted by the Commission to the. Principal Allied and Associated Powers
on 24 December 1919, the wordmg of the clause was as follows:
"The Mandatory Power undertakes to promote to the utmost the
material and moral well-being and the social progress of the ih
habitants of the territory subject to the Mandate." ([1919] Foreign
Relations of the United States, Vol. IX (Paris Peace Conference),
PP· 6ss-6s6.)
The final draft of the mandate agreement, as approved by the Council
of the League of Nations on 17 December 1920, contains the same clause
with two minor amendments. (Ibid.) Thus, Mr. President, it is evident
that the final text of the "C" Mandate agreements goes considerably
beyond the terms proposed in Milner's original draft. The insertion of
the phrases "promote to the utmost" and "social progress" involved
expansion of the scope of Article 2,paragraph 2.
The essential nature of the obligation found in Article 2,paragraph 2,
of the~Ianda Agreement for South West Africa was stated by President
Wilson in a general discussion of mandates provisions in the Plenary
Session of 14 February 1919, in the following words:
"In ali cases of this sort hereafter it shall be the duty of the
League to see that the Nations which are assigned as tutors and
advisors and directors of these peoples, shaH look to their interest
and to their development before they look to the interest and
material desires of the Mandatory itself." (Ibid., Vol. III, p. zq.)
The basic nature of the obligation was even more succinctly stated by
Duncan Hall, a leading authority on the mandates system-"The welfare
of native peoples ... is the real heart of the system". (Hall, op. cit.,
p. 65.)
Mr. President, I tum now to an analysis of the historical background
during the period 1945-1949· This background will render apparent the
common intention of the League of Nations, the United Nations, and
Respondent, at the respective times.
I shall begin, Mr. President and Members of the Court, with the
critical period just prior to the official dissolution of the League of
Nations.
The relevant and decisive historical facts during the period of the
dissolution of the League of Nations and the establishment of the United
Nations and thereafter, demonstrate clearly that it was the general SOUTH WEST AFRICA
understanding of the League of Nations, the United Nations Organiza
tion, and, indeed, of Respondent, that the mandate obligations for
South West Africa survived the dissolution of the League, and that this
survival should include the obligations of Article 6 of the mandate
agreement.
The League of Nations, in its last session during April 1946, was
very much concemed with the interim period prior to the formai
establishment of the trusteeship svstem of the United Nations. Both bv
resolution and by individual declaration, the members of the League,
including those administering territoriesunder mandate, made clear
their intention that the obligations of the severa! mandate agreements
would not lapse notwithstanding the dissolution of the League of
Nations. and, indeed, would be binding until new arrangements under
the United Nations trusteeship system had been ccincluded.
The declarations made by the mandatory powers, evidencing a clear
intention to continue to carry out the obligations of the mandates pending
the conclusion of trusteeship agreements, were as follows:
The United Kingdom on 9 April 1946 undertook the following:
"Until the three African territories have actually been placed
under trusteeship and until fresh arrangements have been reached
in regard to Palestine-whatever those arrangements may be-it is
the intention of His l\fajesty's Govemment in the United Kingdom
to continue to administer the territories in accordance with the
general principles of the existing Mandates." (L. of N., 0.]., Spec.
Supp. No. 194, p. 28.)
The Union of South Africa on 9 April 1946 undertook (to use their
words):
"It is the intention of the Union Government, at the forthcoming
session ofthe United Nations General Assembly in New York, to
formulate its case for according South \Vest Africa a status under
which it would be internationally recognized as an integral part of
the Union. As the Assembly will know, it is already administered
under the terms of the mandate as an integral part of the Union.
lt the meantime the Union willcontinue to administer the territory
scrupulously in accordance with the obligations of the mandate, for
the advancement and promotion of the interests of the inhabitants,
as she has done during the past six years when meetings of the l'fan
dates Commission could not be held.
The disappearance of these organs of the League concerned with
the supervision of mandates, primarily the Mandates Commission
and the League Council, will necessarily preclude complete com
pliance with the Ietter of the mandate. [The Respondent continued :]
But 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 terri tory."
(Ibid., pp. 32-33.)
France on TO April 1946 undertook that:
"The French Government intends to pursue the execution of the
mission entrusted toit by the League of Nations. It considers· that ARGUMENT OF MR. MOORE
it is in accordance with the spirit of the Charter that this mission
should henceforth be carried out under the regime of trusteeship
and it is ready to examine the terms of an agreement to define this
regime in the case of Togoland and the Cameroons." (Ibid., p. 34.)
New Zealand on II April 1946 undertook that:
"New Zealand has a]ways strongly supported the establishment
of the international trusteeship system, and has already declared its
willingness to place the mandated terri tory of Western Samoa under
trusteeship ... New Zealand does not consider that the dissolution of
the League of Nations, and as a consequence, of the Permanent Man
dates Commission will have the effect of diminishing her obligations to
the inhabitants of \Vestern Samoa, or of increasing her rights in the
territory. Until the conclusion of our Trusteeship Agreement for
Western Samoa, therefore, the territory will continue to be adminis
tered by New Zealand, in accordance with the terms of the mandate,
for the promotion of the well-being and advancement of the inhabi
tants." (Ibid., p. 43-)
Belgium on II April 1946 stated:
"We expressed our confidence that the Trusteeship Council would
soon come to occupy in the United Nations Organization the im
portant place which it deserves. We can only repeat that hope here
and give an assurance that, pending its realization, Belgium will
remain fully alive to ail the obligations devolving on Members of the
United Nations under Article So of the Charter." (Ibid.)
Australia on II April 1946 undertook that:
"After the dissolution of the League of Nations and the conse
quent liquidation of the Permanent Mandates Commission, it will
be impossible to continue the mandates system in its entirety.
Notwithstanding this,the Government of AustraHa does not
regard the dissolution of the League as lessening the obligations
imposed upon it for the protection and advancement of the inh~
bitants of the mandated territories, which it regards as having shll
fullforceand effect.Accordingly, until the coming into force of appro
priate trusteeship agreements under Chapter XII of the Charter, thé
Government of Australia will continue to administerthe present man
dated terri tories, in accordance with the provisions ofthe mandates for
the protection and advancement ofthe inhabitants. 1n making plans for
the dissolution of the League, the Assembly willvery properly wish to
be assured asto the future ofthe mandated terri tories, forthe welfare of
the peoples ofwhich this League has been responsible. Sofar as the Aus
trahan territories are concerned, there is fullassurance." (Ibid., p. 47-)
The declarations by each of the manda tory powers make it abundantly
clear that the general intention and understanding was that ali of the
obligations of the mandate agreements remained in force pending the
conclusion of trusteeship agreements. This is seen particularly in the
declaration made by Respondent's representative.
The statement that the Union Government would regard the dissolu
tion of the League "as in no way diminishin·g its obligations under the
mandate" can mean no less than an undertaking to carry out e<~ a?-dch
every one of the obligations of the Mandate for South West Afnca, _m
cluding the obligations under Articles 6 and 7 thereof. This conclus10n
becomes ali the more compelling when it is noted that the above-quotedISO SOUTH WEST AFRICA
phrase follows immediately upon a statement by the South African
representative citing the disappearance of the League organs con
cerned with the supervision of the madates.
Iturn now, Mr. President, to the League of Nations resolution of r8
Aprilrg46. The resolution, in relevant part, reads as follows:
"The Assembly,
Recalling that Article 22 of the Covenant applies to certain
territories placed under mandate the prînciple that the well-being
and development of peoples not yet able to stand alone in the stren
uous conditions of the modern world for a sacred trust of civiliza
tion:
Recognizes that, on the termination of the League's existence,
its functions with respect to the mandated territories will come to
an end, but notes that Chapters XI, XII and XIII of the Charter
of the United Nations embody principles corresponding to those
·cteclaredin Article 22 of the Covenant of the League;
Takes note of the expressed intentions of the members of the
League now administering territories under mandates to continue
to administer them for the well-being and development of the
peoples concemed in accordance with the obligations contained in
the respective mandates until other arrangements have been agreed
between the United Nations and the respective manda tory powers."
(l.C.]. Reports I950, p. 134.)
On 9 April 1946, Dr. Lone Liang, the representative of China, had
proposed for general discussion the following draft resolution:
"The Assembly,
Considering that the Trusteeship Council has not yet been consti
tuted and that aU mandated territories under the League have
not been transferred into terri tories under trusteeship;
Considering that the League's function of supervising mandated
territories should be transferred to the United Nations, in order to
avoid a period of interregnum in the supervision of the mandatory
regime in these territories;
Recommends that the manda tory powers, as well as those adminis
tering ex-enemy mandated territories shall continue to submit
annual reports to the United Nations and to submit to inspection
by the same until the Trusteeship Council shall have been con
stituted."(L.of N., 2rst Assembly, rst Comm., 2nd Mtg., Provisional
Record; Counter-Memorial, II, p. 49, footnote 2.)
This draft resolution was never considered since the Chairman ruled
that itwas not properly raised by Dr. Liang at that time. However, on
12 April 1946, Dr. Liang introduced a new draft resolution which was
Jater adopted unanimously and became the final League of Nations
resolution on the mandates system. Dr. Liang, in discussing the new
draft resolution, stated that he recaUed (to use his words)-
''that he had already drawn the attention of the committee to
the complicated problems arising in regard to mandates from
the transfer of functions from the League to the United Nations.
The United Nations Charter in Chapters XII and XIII established
a system of trusteeship based largely upon the principles of the
mandates system, but the functions of the League in that respect ARGUMENT OF MR. MOORE ISI
were not transferred automatically to the United Nations. The
Assembly [he continued) should therefore take steps to secure the
continued application of the principles of the mandates system.
As Professor Bailey had pointed out to the Assembly [Dr. Liang
said] the League would wish to be assured as to the future of man
dated territories. It was gratifying to the Chinese delegation, as
representing a country which had always stood for the principle of
trusteeship, that all the mandatory powers had announced their
intention to administer the territories under their control in accor
dance with their obligations under the mandates system until other
arrangements were agreed upon.
The Chinese delegation had pleasure in presenting the draft
resolution now before the Committee, so that the question could be
discussed by the Assembly in a concrete form and the position of
the Leagueclarified." (L. of N.,O.].,Spec. Supp. No. 194, pp. 78-79-)
There is no public record indicating why Dr. Liang changed the
wording of his original draft resolution. However, it is most likely that
the League of Nations, notwithstanding the severa! undertakings by the
mandatory powers to carry out all of the obligations of the mandate
agreement pending the establishment of the United Nations trusteeship
system, did not wish to appear to encourage delay in the early formation
of the trusteeship system. This had already been the concem of the
Prepara tory Commission dclegates with regard to a temporary trusteeship
committee, a matter which will be referred to shortly.
Respondent has sought to attach significance to the difference in
wording between the original Chinese draft resolution and the draft
resolution finally adopted by the League Assembly. However, Dr. Liang,
in discussing the second dra ft, referred to "obligatiOns under the mandate
system", not some of the obligations. The resolution when passed, as has
been noted, made the same reference to "obligations".
Further, after stating that the League functions were not transferred
automatically to the United Nations, Dr. Liang continued, "the Assembly
should therefore take steps to secure the continued application of the
principles of the mandates system". The understanding then was that
since the League functions were not transferred "automatically", the
League should remcdy the situation by taking "steps" to secure the
continued application of the principles of the mandates system.
Severa! words in the quoted phrase are significant. The word "there
fore" indicated Dr. Liang's view that the proposed resolution would solve
the problem he had posed. The words "continued application" demon
strate the general understanding that the obligations carried out prior
to the dissolution of the League would also be carried out subsequent to
such dissolution. The word "principles" is not qualified in any way, and
must surely include the essential principle of international accountability.
In the event, the draft resolution submitted by Dr. Liang on 12 April
1946 was unanimously adopted, with Egypt abstaining, for reasons which
appear in the records of the proceedings, not germane to this particular
issue.
lmmediately following the presentation of the resolution to the League
Assembly, the Egyptian representative stated his Government's reser
vation concerning Palestine in these words:
"The opinion of my Government is that Palestine has intellectu-152 SOUTH WEST AFRICA
ally, economically, and politically reached a stage where it should
no longer continue under mandate or trusteeship or whatever other
arrangements may be considered." (Ibid., pp. 58-59.)
He made "ali reservations" to paragraph 4 of the proposed resolution
and stated further-"it is the view of my Government that mandates
have terminated with the dissolution of the League of Nations ... ".
(Ibid.,p. 59.)
It is important to note that the Egyptian representative clearly felt
that the resolution under consideration was not acceptable because
it signifiedthat mandates continued in force and were not terminated
by the dissolution of the League of Nations. Since the opinion implicit
in his reservations was not controverted by any Member of the League
of Nations, it would seem obvions that the general understanding of the
League Members in adopting the resolution was that all of the obligations
of the varions mandates survived the dissolution of the League and were
binding upon the Mandatory Powers pending the conclusion of new
arrangements under the United Nations trusteeship system.
Mr. President, 1 should like with your permission to turn now to the
proposai for a temporary trusteeship committee, made in the Preparatory
Commission in 1945. This proposai, first suggested by the Executive
Committee of the Preparatory Commission, was outlined by the Chair
man of Committee Four-the Trusteeship Committee-of the Prepara
tory Commission as follows:
"The basic task of the Temporary Trusteeship Committee, as it
was contemplated, was to assist the General Assembly in expediting
the establishment of the trusteeship system and was to remain in
existence until a sufficient number of trusteeship agreements had
been concluded to promote the establishment of the permanent
Trusteeship Council in accordance with Article 86 of the Charter."
This is found in the records of the Preparatory Commission, 4th Plenary
Meeting, page 125.
The representative of the Union of South Africa in Committee Four
of the Preparatory Commission supported the proposai for a temporary
trusteeship committee. The summary record of the second meeting of
Committee Four reports Mr. Nicholls of the Union of South Africa as
stating that, "it seems reasonable to create an interim body as the
Mandates Commission was now in abeyance and the countries holding
mandates should have a body to which they could report". (Oral pro
ceedings, IS Oct. 1962, moming.)
The proposai for a temporary trusteeship committee was not adopted
by the 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
a trusteeship council. (Ibid.) It was pointed out that in the event of
undue delay in completing tmsteeship agreements, it was open to the
General Assembly of the United Nations at any time to establish any
body which seemed necessary. The Soviet delegate is reported as stating
that he was not surprised that the Mandatory Powers were in favour of
substitute organs, but if the problem were dealt with along those tines,
discussion could continue for months or years without .any action being
taken. (Ibid.) ·
1 emphasize, Mr. President, that no argument was presented by any ARGUME~T OF MR. MOORE
153
delegate to the Prepara tory Commission that the proposai for a temporary
trusteeship committee was not acceptable on the grounds that the United
Nations had no supervisory authority over mandated territories. Rather,
it seems to have been assumed by the Preparatory Commission that the
United Nations did have such supervisory authority, but that the most
expedient method, not the only method, for giving effect to such authority
was the rapid conclusion of trusteeship agreements and the formation of
the Trusteeship Council.
Mr. President, 1 tum now to an analysis of the relevant historical
occurrences at the United Nations between the years 1946 and 1949.
It is quite clear that events at the United Nations during the autumn of
1946, that is to say, severa! months after the dissolution of the League of
Nations, indicate the general understanding of the United Nations Orga
nization and of the Respondent, that the mandates had not lapsed and
were subject to the supervisory authority of the United Nations.
I discuss first a memorandum prepared by the Secretariat of the new
United Nations Organization and dated 16 October 1946. The memoran
dum referred to a letter written by Secretary-General Trygve Lie on
29 June 1946, addressed to the States administering territories now held
under mandate, i.e., Australia,Belgium, France, New Zealand, the
Union of South Africa and the United Kingdom. (U.N. Doc. A/IIJ,
16 Oct. 1946.)
The letter, which also referred to States "administering trust terri tories
now hcld under mandate", and to "the mandatory powers", reftected the
concem of the Secretary-General that as of the date of the letter no
trusteeship agreements had yet been submitted to the United Nations.
According to the memorandum prepared by the Secretariat, the Secre
tary-General received replies to his letter from each of the States to
whom letters had been addressed, including a communication from
the Govemment of the Union of South Africa dated 12 August 1946 con
cerning the "mandated territory of South West Africa"-these are the
words of the Union. (Ibid., p. 3.)
The replies to the Ietter of the Secretarv-General indicated that of
the six Mandatory Powers, four understood the mandate to be in existence
notwithstanding the dissolution of the League of Nations. New Zealand
alone referred to Western Samoa as "the former mandated territory"
(ibid., p. 7) and Belgium gave no indication of her view asto whether it
considered the Territory of Ruanda-Urundi to be still under mandate.
The reply from Australia, dated II September 1946, which was almost
five months after the dissolution of the League of Nations, states that
"the Australian Government has prepared an agreement in respect of
the mandated territory of New Guinea". (Ibid., p. 4.)
The reply from France, dated 20 September 1946, reads in relevant
parts as follows:
"The French Govemmcnt has decided to place the mandated
territories of Togoland and the Cameroons under the trusteeship
systems as defined by the provisions of the Charter ... The terms
of the trusteeship have ... been communicated for information
purposes ... to the Mandatory Powers of territories on the African
Continent ... The British Govemment, for its own part, has sub-
mitted for approval by the French Govemment terms of trustee
ship regarding Togoland and the Carneroons under British Mandate."
(Ib-id., p6.)I54 SOUTH WEST AFRICA
The reply of the United Kingdom, dated 5 September 1946, referred
to "the territories in Africa under United Kingdom mandate", "the West
African mandated territories of Togoland under British mandate and
the Camcroons under British mandate", and "the three African territories
under United Kingdom mandate". (Ibid., pp. g-ro.)
The initial reply of the Union of South Africa, dated 12 August 1946,
indicates Respondent's view at that time that the Mandate for South
\Vest Africa was still in effect. The reply, in relevant part, reads as follows:
"By direction of the Government of the Union of South Africa,
I have the honour to request that the question of the desirability
of the territorial integration in, and the annexation to, the Union
of South Africa of the mandated territory of South West Africa, be
included in the agenda for the second part of the first session of the
General Assemby to be convened at New York City on 23 Septem
ber next." (Ibid., pp. 8-g.)
A later request by the Union of South Africa submitted an amended
wording of the original proposa!. The subsequent request, written on
9 October 1946, provides an indication that almost six months after the
dissolution of the League of Nations, the Union of South Africa not only
considered the Mandate for South West Africa to be in effect, but con
sidered that the United Nations was the proper authority for the imple
mentation of proposais by the mandatory concerning the Territory.
The 1ater request reads as follows, in the relevant part:
"... I have now been instructed by my Government to request that
you be so good as to amend the text of the item in relation to South
West Africa as follows:
'Statement by the Government of the Union of South Africa
on the outcome of their consultations with the peoples of South
West Africa as to the future status of the mandated territory,
and implementation to be given to the wishes thus expressed.'"
(Ibid.)
The submission of the question of the termination of the Mandate to
the General Assembly is of particular significance.
It will be recalled that on 2January 1946,Respondent's representative
to the Fourth Committee of the General Assembly stated that after
consultation with the inhabitants of the Territory, his Government's
plans for South West Africa "would be submitted to the General Assem
bly for judgment". (I.C.]. Reports I950, p. 142.)
The meaning of this statement of submission and the words "for
judgment" was further elucidated by Respondent's Prime Minister in a
statement to the Fourth Committee on 4 November 1946, that South
Africa's-
"international responsibility precluded it from taking advantage of
the war situation by effecting a change in the status of South West
Africa without proper consultation either of ail the peoples of the
Territory itself, or with the competent international organs".
(Ibid.)
The importance of these statements was noted by this Court in its
Advisory Opinion of 1950, when it stated:
"By thus submitting the question of the future international
status of the Territory to the 'judgment' of the General Assembly ARGUMENT OF MR. MOORE 155
as the 'competent international organ', the Union Government re·
cognized the competence of the General Assembly in the matter."
(Ibid.)
Respondent's representative to the Permanent Mandates Commission,
in response to a critical reaction from the Commission on the proposed
incorporation of South West Africa as a fifth province of the Union,
stated that-
"He could assure the Mandates Commission that the Union
Govemment would never take any action in this respect until it
had first communicated its intentions to the Mandates Commission
itself." (Counter-Memorial, IV, p. 8o.)
The near identity of Respondent's actions with regard to proposais for
incorporation, taken in 1935 under the League, and in 1946 after the
dissolution of the League, reveal clearly that in each instance Respondent
was submitting to what it regarded as "the competent international
organ''.
Since, in the autumn of 1946, Respondent had not yet begun to argue
that the Mandate as a whole had lapsed, or that the United Nations had
no supervisory authority over its administration of South West Africa,
the only reasonable inference to be drawn is that reached by this Court
in 1950, which is:
"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 Government
recognized the competence of the General Assembly in the matter."
(I.C.J. ReportsI950, p. 142.)
Mr. President, 1 had just reached the point of commenting upon
certain requests made by Respondent to the United Nations and 1 said
that since in Autumn 1946 Respondent had not yet bef?Unto argue that
theiMandate as awholehad lapsed, or that the United Natwnshadno super·
visory authority over its adminstration of South West Africa, the only
reasonable inference to be drawn being that reached by the Court in 1950,
namely to the effect that 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 Government
recognized the competence of the General Assembly in the matter.
The importance of such submission by Respondent is obvions. As
the Court stated in another context:
"Interpretations placed upon legal instruments by the parties
to them, though not conclusive asto their meaning, have consider
able probative value when they contain recognition by a party of
its own obligations under an instrument." (Ibid.,pp. 135·136.)
Mr. President, I now wish to discuss a letter and memorandum sub
mitted to the United Nations by Respondent on 17 October 1946. (U.N.
Doc. A/123.) The memorandum demonstrates quite clearly the under
standing of the Union Government that not only was the Mandate in
existence, but that the United Nations was the proper supervisory
authority. The letter, while twice referring to South West Africa as
"the mandated territ ory", requests that the accompanying memoran·
dum be tabled as a United Nations General Assembly document.
It must be noted that the memorandum submitted to the United SOUTH WEST AFRICA
Nations, sorne six months after the dissolution of the League of Nations,
is based on the assumption that the Mandate for South West Africa was
still in force.hus paragraph 3 of the memorandum refers to repeated
requests by the European section of the population for "the termination
of the mandate" and the incorporation of the Territory. After stating
that the "Natives" also favoured incorporation, the memorandum
continues, in paragraph 4, as follows:
"Therefore, prior to the opening of the second part of the first
session of the General Assembly, the Secretary-General of the United
Nations was requested to include on the agenda a statement by the
Govemment of the Union of South Africa on the outcome of
their consultations with the peoples of South West Africa asto the
future status of the mandated territory, and the implementation to be
given to the wishes thus expressed." (Ibid., p. s.)
Paragraphs 3 and 4 of the memorandum to the effect that the Territory
of South West Africa bad, in the fall of 1946, a status as a "mandated
territory", and that the United Nations General Assembly was the
proper authority to give "implementation" to the wishes of the inhabi
tants of that territory, indicate Respondent's understanding in 1946
concerning the existence of the Mandate, and supervisory authority over
its administration.
Another c1ear indication of Respondent's attitude in the fall of 1946
may be found in paragraphs rso and rsr of the memorandum, which
read as follows :
"The Union Govemment, as Mandatory, has govemed the Man
dated Territory of South \Vest Africa for over a quarter of a cen
tury ... That the Mandatory is satisfied that its duties under the
Mandate have been faithfully carried out is justified ... " (Para. rso.)
"Yet, the Union Govemment, considering the fruits of its efforts
in the Territory and the task which lies ahead, shares with the
people of South West Africa the conviction that the mandates
system is inapplicable to the Territory. This conviction rests upon
three main considerations, namely:
(a) The fundamental principle of the mandates system and its
successor the trusteeship system is ultimate political self-govem
ment and separate statehood. The low economie potential of the
Territory and the backwardness of the vast majority of the
population render this impossible of achievement.
(b) The immediate aim of the Mandate is the development of the
Territory and its people. This development can only be satis-.
factorily carried on at an expense to the Mandatory which, in
the nature of things, it cannat undertake.
(c) The uncertainty as to the ultimate future of the Territory in
evitably militates against racial tranquility and the optimum
development of the country." (Ibid., p. sr.)
The significance of these paragraphs is obvious. Six months after the
dissolution of the League of Nations, South Africa was arguing that the
mandates system was inapplicable to the Territory, but for reasons
having nothing whatsoever to do with the dissolution of the League.
If in fact it was the understanding of the Union of South Africa that
the demise of the League of Nations resulted in the lapse of the Mandate
as a whole, then surely an argument presented six months after the disso- ARGUME~T OF MR. MOORE
157
lution of the League would have included such reasons. The only inference
to be drawn from the memorandum of 17 October 1946 was that, at that
time, the Governrnent of South Africa was of the opinion that the Man
date for South West Africa continued in full force.
Mr. President, the debates in the Fourth Committee of the General
Assembly in the autumn of 1946 also indicate clearly that the general
understanding of the Members of the United Nations and of the Govern
ment of the Union of South Africa was that the Mandate was still in
force and that the. United Nations had general supervisory authority
over Respondent's administration of the Territory. Thus, Field-Marshal
Smuts stated to the Fourth Committee on 16 November 1946 that:
"The people wanted incorporation; the Union Govemment could
not ignore that wish and had no alternative but to bring their wish
before the General Assembly." (C.A., O.R., rst Sess., znd Part, 4th
Committee, Sub-Committee 2,p. 7-)
Similarly, on 28 Novernber 1946, Mr. John Foster Dulles, late Secretary
of State of the United States, told the Fourth Committee of the General
Assembly that:
"The information at the disposai of the General Assembly did
not enable it to approve, during the present session, the incorpora
tion of the Mandated Territory of South West Africa. Agreement
on the subject might be said to be unanimous. It was not a question
of discovering what the verdict of the General Assembly would be,
but in what terms it would be expressed." (Ibid., p. 49.)
The next day Mr. Liu Chieh, the representative of China in the Fourth
Committee, stated that:
"If the Sub-Committee accepted the contention of the Govern
ment'of the Union of South Africa that the future incorporation of
South West Africa into the Union was justified, theo consultations
among the inhabitants should be conducted under the supervision
of the Trusteeship Council ... Far from accepting the statements
contained in paragraph 151 of document Aj123 [the memorandum of
17 October 1946, referred to previously] he was of the opinion that
South West Africa should be placed under the Trusteeship System
rather than continued as a Mandate." (Ibid., p. 56.)
Again representatives of member States had recognized the existence
of the Mandate, as weil as the supervisory authority of the United Nations.
The General Assembly of the United Nations, on 14 December 1946,
passed resolution 65 (I) which, by its terms, recognized the existence of
the Mandate, as weil as the supervisory authority of the United Nations.
The resolution reads as follows:
"The General Assembly,
Having considered the statements of the delegation of the Union
of South Africa regarding the question of incorpora ting the mandated
terri tory of South West Africain the Union;
Noting with satisfaction that the Union of South Africa, by
presenting this matter to the United Nations, recognizes the in
terestand concern of the United Nations in the matter of the future
status of territories now held under mandate;
Recalling that the Charter of the United Nations provided
in Articles 77 and 79 that the Trusteeship System shall apply SOUTH WEST AFRICA
to terri tories now under mandate as may be subsequently agreed;
Rejerring to the resolution of the General Assembly of 9 February
1946, inviting the placing of mandated territories under trusteeship;
Desiring that agreement between the United Nations and the
Union of South Africa may hereafter be reached regarding the future
status of the mandated territory of South \Vest Africa;
Assured by the delegation of the Union of South Africa that,
pending such agreement, the Union Government will continue to
administer the terri tory as heretofore inthe spirit ofthe principles laid
down in the mandate;
Considering that the African inhabitants of South West Africa
have not yet secured political autonomy or reached a stage of politi
cal development enabling them to express a considered opinion which
the Assembly could recognize on such an important question as
incorporation of their territory:
The General Assembly, therefore
Is unable to accede to the incorporation of the territory of South
West Africain the Union of South Africa; and
Recommends that the mandated territory of South West A/rica be
placed under the international trusteeship system and invites the
Government of the Union of South Africa to propose for the consid
eration of the General Assembly a trusteeship agreement for the
aforesaid territory."
Thus by the end of 1946 Respondent had not, at any time, indicated
a view that the Mandate for South West Africa bad lapscd, or that the
United Nations had no supervisory authority over the Territory.
On the contrary, Respondent had on severa! occasions indicated its
understanding that the Mandate was still in force and effect and that
the United Nations had supervisory authority. Respondent submitted
its plan for termination of the Mandate "to the General Assembly for
judgrnent ... " {to use their words again), the procedure to which there
was, in Respondent's words "... no alternative ... ".
A final observation concerning this pointis that the General Assembly,
by resolution 65 (1), "... affirmed its competence ... " over the mandated
territory of South West Africa.
Although Respondent in September 1947 indicated for the first time
a view that the United Nations had no supervisory authority over South
West Africa, statements made by Respondent up to that time, during
the year 1947, indicated preciselv the opposite view.
Respondent's letter of 23 July 1947 to the Secretary-General of the
United Nations cites General Assembly resolution 65 (!},in which the
Assembly expressed inability to accede to the incorporation of South
West Africain the Union. The letter states:
"... the Union Government desire to reiterate their view that it is
implicit in the mandate system and in the Mandate for South West
Africa that due regard shaH be had to the wishcs of the inhabitants
in the administration of the Territory. The wish, clearly expressed
by the overwhelming majority of al! the native races in South West
Africa, and by unanimous vote on the part of the European represen
tatives of the Territory, that South West Africa be incorporated in
the Union therefore debars the Union Government from acting in
accordance with the resolution of the General Assembly, and thereby ARGUMENT OF MR. MOORE 1
59
ftouting the wishes of those who under the Mandate have been com
mitted to their charge. In the circumstances, the Union Government
has no alternative but to maintain the status quo and to continue to
administer the Territory in the spirit of the existing Mandate."
(U.N. Doc. A/334, r Aug. 1947, p. IJS.) .
The next two paragraphs of the letter of 23 July 1947 are equally
significant with regard to Respondent's recognition of the supervisory
authority of the United Nations. Those paragraphs read in part as follows:
"The Union Government are mindful of the fact that the General
Assembly, in passing the recommendation, was mainly concemed
about the welfare of the inhabitants of the Territory-especially
the non-Europeans. This concern the Union Government naturally
share. It will, however, be recalled that the interests of the native
inhabitants were fully provided for with specifie safeguards under
the Mandate and that the administration of South West Africa and
the implementation of those safeguards have been uniformly satis
factory ever since the inception of the mandatory system. They feel
confident, therefore, that their continued administration of the
Territory in the spirit of the Mandate will equally merit the satis
faction of the United Nations.
To that end the Union Government have already undertaken to
submit reports on their administration for the information of the
United Nations." {Ibid.)
Yet another recognition by Respondent of the surervisory authority
of the United Nations over the mandated Territory o South West Africa
is to be found in a communication from Respondent to the Secretary
General of the United Nations dated 22 September 1947 (see U.N. Docu
ment A/334/Add. 1). The communication recites the fact that General
Assembly resolution 65 (I) was "fully discussed" at a session of the South
West African Legislative Assembly, after which a resolution by the
South West African Legislative Assembly was adopted unanimously,
according to Respondent, on 7 May 1947, and that it read as follows:
"That this House expresses to the Right Honourable the Prime
~Iinis ot her Union its appreciation and thanks for his firm and
courageous stand before the United Nations Organization in·con
nexion with the incorporation of this Territory with the Union, and
trusts that the United Nations Organization will grant the wishes
ofthe large majority of the inhabitants of this Territory, European
as well asnon-European." (Ibid., p. 138.)
1\fr. President, I tum now to a consideration of the actual exercise
of competence by the United Nations of its supervisory authority over
South West Africa.
\Vhereas by resolution 65 (I) of 14 December 1946the General Assembly
"affirmed its competence" (to use the phrase of this Court) over the
administration of South West Africa, "this competence was in fact
exercised by the General Assembly in resolution 141 (Il) of r November
1947 ... " (see I.C.J. ReportI950, p. 137).
The resolution urged the Government of the Union of South Africa to
propose a trusteeship agreement for South West Africa, and authorized-
"the Trusteeship Council in the meantime to examine the report on
South West Africa recently submitted by the Govemment of the160 SOUTH WEST AFRICA
Union of South Africa and to submit its observations thereon to the
General Assembly".
In accordance with resolution qr (II) of the General Assembly, the
Trusteeship Council did examine the report submitted by the Respondent
for the year 1946.
Although the Council, in the exerdse-of its competence, did not agree
upon the extent of supervision, there was no doubt asto the legal author
ity of the Council to examine the report of the mandatory power and
submit observations thereon. Notwithstanding the dissolution of the
League, it was as-reed that the Mandate continued in full force and effect,
and that the Umted Nations was the proper supervisory authority.
Thus, the Chinese representative made the following uncontroverted
argument. He said:
"1 wish briefly to discuss the basis for the examination by this
Council of such a report. In the first place, South West Africa is a
mandated territory. If the mandate system had not ceased to
function, that report would have been examined by the Permanent
Mandates Commission of the League of Nations. 1 think that by
design and by general acceptance the functions and responsibilities
of the Mandates Commission have fallen upon the shoulders of the
Trusteeship Council. The Govemment of the Union of Sout;h Africa
has asserted that it will continue to administer that territory in
the spirit of the Mandate. Therefore, 1 believe it must have been
inthe minds of the members of the General Assembly that the proper
organ ofthe United Nations to examine the report was the Trusteeship
CounciL" (T.C.O.R., 2nd Sess., rst Part, p. I23-)
Mr. Ryckmans, the delegate of Belgium, followed the Chinese statement
with the opinion that, in his words: ~
"1 agree with the substance of the statement just made by the
Chinese representative ... \Ve shaH in fact examine this report as
we examine any other, but in principle we should consider it in the
same way as it would have been considered by the Permanent
.Mandates Commission." (lot'd., p. IZ+)
Mr. Gerig, the delegate of the Unites States, in assuming the com
petence of the United Nations, stated that South West Africa ''isa man
dated territory, recognized as such by everyone, including the Union of
South Africa". (Ibid., p. 130.)
The Trusteeship Council requested further information from Respon
dent, and such information was submitted in May 1948. The Council
examined the initial report and the supplementary information sub
mitted by Respondent, and reported its observations to the General
Assembly.
The United Nations received no further reports from Respondent
subsequent to May 1948. In a letter to the Secretary-General on II July
1949, Respondent explained its refusa! to submit further reports by
referring to "unjustified criticism and censure" of Respondent's adminis
tration, and to "misconceptions" conceming the competency of the
Trusteeship Council, and "misunderstandings" which gave rise to
''repercussions" in the Union and the Territory with "deleterious
effects" on the administration of South \Vest Africa. It was also stated
that: ARGUMENT OF MR. MOORE 161
"It will be recalled ... that the Union Government have at no
time recognized any legal obligations on their part to supply infor
mation on South West Africa to the United Nations, but in a spirit of
goodwill, co-operation and helpfulness offered to provide the United
Nations with reports on the administration of South West Africa,
with the clear stipulation that this would be done on a voluntary
basis, for purposes of information only and on the distinct under
standing that the United Nations bas no supervisory jurisdiction in
South West Africa." (Il, pp. 61-62.)
It will be recalled that Respondent's letter of 23 July 1947 explicitly
recognized the continuing existence of the 1\landate.
Mr. President and Members of the honourable Court, since the General
Assembly of the United Nations bad "affinned its competence" over the
administration of South West Africa by resolution 65 (1), and since
"this competence was in fact exercised by the General Assembly", as
was noted in the Opinion of 1950, page 137, regarding resolution 141 (II),
it is not surprising that the United Nations likewise exercised its compe
tence over the Mandated Territory of Palestine.
The handling of the Palestine problem by the United Nations shows
clearly that the general understanding in 1947 was that not only was
the Mandate for Palestine still in effect, but that the United Nations
had the authority to supervise the administration and termination of
that Mandate. This is seen most clearly in a report of the United Nations
Special Committee on Palestine (G.A., O.R., 2nd Sess., Supp. No. II),
and in the subsequent resolution of the General Assembly on the Palestine
question.
Thus, for example, in paragraph II2 of the report of the Special Com
mittee, it was noted that on 1 May 1946the report of the Anglo-American
Committee of Inquiry was published. Among the major constitutional
proposais of the Committee of Inquiry was the following:
"That until Arab-Jewish hostility disappears 'the government
of Palestine be continued as at present under mandate pending the
execution of a Trusteeship Agreement under the United Nations'."
(Ibid.,p. 27.)
The Special Committee, however, in its first recommendation, stated
that "it is recommended that the Mandate for Palestine shall be ter
minated at the earliest practicable date". (Ibid., p. 42.)
In a comment giving the reasons for the unanimous recommendation
of the Special Committee that the Mandate for Palestine be terminated,
was the following conclusion:
"Ail directly interested parties-the Mandatory Power, Arabs
and J ews-are in full accord that there is urgent need for a change
in the status of Palestine. The Mandatory Power bas officially in
fonned the Committee 'that the Mandate bas proved to be unwork
able in practice, and that the obligations undertaken to the two
communities in Palestine have been shown to be irreconcilable'.
Both Arabs and Jews urge termination of the Mandate and the
grant of independence to Palestine ... " (Ibid., pp. 42-43.)
The recommendation and the cited conclusion giving reasons for the
recommendation indicate quite clearly the view of the inhabitants of
Palestine, as well as the view of the United Nations Special Committeei6z SOUTH WEST AFRICA
on Palestine, that, notwithstanding the dissolution of the League of
Nations, the Mandate for Palestine was still in effect.
It was further recornmended by the Special Committee that during
the transitional period prior to the granting of full independence to the
territory of Palestine, "the present l\1andatory Power" shall "carry on
the administration of the territory of Palestine under the auspices of the
United Nations ... ". (Ibid., p. 48.)
It is true that the Special Committee, citing the dissolution of the
League of Nations and the Permanent Mandates Commission, stated
that the manda tory power had no means of discharging fully its inter
national obligations with regard to the mandated territory. The Special
Comrnittee also stated that the trusteeship system of the United Nations
had not ''automatically'' taken over the funetions ofthe mandates system.
However, the Special Committee also stated that:
"At the time of the termination of the Permanent Mandates Com
mission 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 principles of the
Mandate. The mandatory power bas itself now referred the matter
to the United Nations." (Ibid., p. 43.)
More significantly, it is clear that the United Nations felt itself com
petent to supervise the administration of Palestine prior to the granting
of independence to that territory. Thus, for example, in addition to the
recommendation noted above concerning the transitional period, it was
also recommended by the Special Committee that "during the transi
tional period the authority entrusted with the task of administering
Palestine and preparing it for independence shall be responsible to the
United Nations". (Ibid.)
In commenting upon the latter recommendation, the Special Com
mittee stated that:
"Certain obstacles which may weil confront the authority en
trusted with the administration during the transitional period make
it desirable that a close link be established with the United Nations.
It will be of the utmost importance to the discharge of its heavy
responsibilities that, while being accountable to the United Nations
for its actions ...the authority concerned should be able to count
upon the support of the United Nations in carrving out the directives
of that body." (lb-id., p. 44.) ·
.in sum, it seems obvious that the view of the United Nations Special
Committee on Palestine was:
(1) that the Mandate for Palestine was in effect notwithstanding the
dissolution of the League of Nations;
(2) that the United Nations had the authority to terminate the Man
date; and
(3) that the United Nations had the authority to supervise the admi
nistration of Palestine prior to the granting of independece to that
territorv.
It seems equally clear that the views of the Special Committee on
Palestine were also the views of the General Assembly of the United
Nations. The General Assembly, on 29 November 1947, 19 months after
the dissolution of the League of Nations, passed resolution r8r (II) which
read, in relevant part, as follows: ARGUMENT OF MR. MOORE
"The General Assembly,
. . . . . . . . . . ~ . . . . . . . .
Takes note of the declaration by the mandatory power that it
plans to complete its evacuation of Palestine by 1 August 1948;
Recommends to the United Kingdom, as the mandatory power for
Palestine, and to ail other members of the United Nations the
adoption and implementation, with regard to the future govern
ment of Palestine, of the Plan of Partition with Economie Union."
The Plan of Partition with Economie Union referred toby the General
Assembly, and annexed to resolution 181 (II) of 29 November 1947,
indicates even more clearly the general understanding that the Mandate
for Palestine was still in existence as of November 1947. Thus, the first
recommendation in the final Plan of Partition was that "the Mandate
for Palestine shall terminate as soon as possible but in any case not later
than 1 August 1948". (P. 132.) lt is obvious that this recommendation
assumed the existence of the 1\iandate for Palestine.
An examination of the Plan of Partition also makes clear the under
standing of the General Assembly that the United Nations had extensive
powers of supervision over the administration of the Mandated Territory
of Palestine. For example, on page 133 of the Plan of Partition, the
following is noted:
"The mandatory power shall not take any action to prevent,
obstruct or delay the implementation by the Commission of the
measures recommended by the General Assembly."
Mr. President, notwithstanding the general view of the United Nations
and Respondent that the Mandate was still in force, and that the United
Nations was properly authorized to exercise supervisory function over
the administration of the mandated territory, Respondent for the first
time, in September of 1947, began to indicate a view that the United
Nations had no supervisory jurisdiction over South West Africa, and
by 1948 Respondent had extended the argument to the point at which
it was then contending that the Mandate as a whole had lapsed. But
notwithstanding Respondent's new assertion in 1948 that the Mandate
as a whole had lapsed, Respondent indicatecl severa] times that it was
still possessed ofrights under the Mandate Agreement for South West
Africa. .
Thus, for example, Mr. Eric Louw, appearing for the Government
of the Union of South Africa before the Fourth Committee of the General
Assembly on 18 November 1948, referred to the second operative para
graph of a joint draft resolution submitted by the delegations of Den
mark, Norway and Uruguay. The paragraph referred to recommended
anew that South West Africa be placed under the trusteeship system.
(C.A., O.R., 3rd Sess., 1st Part, 4th Comm., pp. 367-368.)
According to the record of the proceedings before the Fourth Commit
tee:
"Mr. Louw pointed out that the provisions of the second operative
paragraph of that draft resolution precluded any possibility of
arriving at the agreement contemplated in the League of Nations'
last resolution on the question. According to that resolution, the
mandatory power was to continue to fulfill its functions until new
agreements had been concluded ... The representatives ofthe Union
of South Africa felt that the paragraph was contrary to the provi- SOUTH WEST AFIUCA
sions of the Charter inasmuch as it disregarded rights possessed by
the Union of South Africa under the Mandate and the Charter."
(Ib-id., p. 368.)
This statement recalls another made by Respondent's representatives
.to the General Assembly in 1946. Referring to consultations with the
inhabitants of South West Africa on the proposed termination of the
Mandate and incorporation, Respondent's representatives stated that:
"Arrangements are now in train for such consultations to take
place and, until they have been concluded, the South African Gov
ernment must reserve its position concerning the future of the
Mandate, together with its right of full liberty of action, as provided
for in paragraph 1 of Article So of the Charter." (]ournal of the
U.N.P.C., p. 131.)
The view seems to have been that Article 8o (r)of the Charter provided
for rights,but not for obligations.
It would seem that by November of 1948 Respondent's view was that
in so far as the Mandate Agreement for South West Africa contained
obligations, the Mandate had lapsed; but that in so far as the Mandate
Agreement contained rights, the Mandate was still in full force and
effect.
In Mr. Louw's statement of 18 November 1948, cited above, it is to be
noted that Respondent's representative used the phrase "rights possessed
by the Union of South Afnca under the Mandate". This was no isolated
reference to "rights" under the Mandate. On 9 November 1948 Mr. Louw
stated before the Fourth Committee that "the doser union scheme was
nothing new or startling. The right to incorporate the territory of South
West Africa was inherent in the former Mandate ... " (C.A., O.R., 3rd
Sess., rst Part, 4th Comm., p. 346.)
Similarly, on 26 November 1948, Mr. Louw, in presenting his Govern
ment's case to the General Assembly plenary session, quoted a cable
just received from the South African Prime Minister which stated:
"The South African Government is exercising a right which has
never been disputed to administer the territory as an integral part
of the Union, pursuant to thepowergranted in the original Mandate."
(C.A., O.R., Jrd Sess., 1st Part, Plenary, p. 587.)
The General Assembly, by resolution 227 (III) of 26 November 1948,
once again gave its views on the problem of South West Africa, and in
so doing exercised its competence over the mandated territory.
The Assembly resolution refers to "the mandated territory of South
West Africa", the "existing mandate", "the administering authority",
and finally:
"Recommends, without prejudice toits resolutions of I4 December
1946 and 1 November 1947, that the Union of South Africa, until
agreement is reached with the United Nations regarding the future
of South West Africa, continue to supply annually information on
itsadministration of the territory;
Requests the Trusteeship Council to continue to examine such
information and to submit its observation thereon to the General
Assembly."
The Court, in its 1950 Opinion, also noted that the General Assembly,
in resolution 337 (IV) of 6 December 1949, confirmed the exercise of ARGUMENT OF MR. MOORE r65
its competence over South West Africa. This was done by confirming
resolutions 141 (Il) and 227 (III). l refer to the Opinion at page 137.
In sum, Mr. President, the view of this Court, explicitly stated in 1950
and in 1962 and assumed in 1955 and 1956, that the Mandate for South
West Africa remains in full force and effect and that the United Nations
isthe legally authorized supervisory authority over the administration
of the territory, is one which is fully supported by the historical record.
Respondent, evidently aware of the importance attached by this
Court to "recognition by a party of its own obligations under an in
strument" (l.C.]. Reports I950, p. 136), bas denied Applicants' conten
tion that "in the penod of 1946-1949 the Union's policy concerning the
Mandate underwent a marked change''. (1,p. 48.)
The understanding of the United Nations that the Mandate continued
in force and that the obligations of international accountability were
owed to the United Nations, thus appears clearly from the General
Assembly resolutions 65 (l) of 14 December 1946and 141 (II) of 1 Novem
ber 1947, as well as 227 (III) of 26 November 1948, and 337 (IV) of
6 December 1949. The last resolution confirmed the fi.rst three; the 1946
resolution"affirmed" the competence of the Assembly, and the 1947 and
1948 resolutions "exercised" this competence.
Respondent has insisted, both in the Rejoinder (V, p. 66) and in the
Counter-Memorial (Il, p. 140), that between the years 1947 and 1949,
25 Members of the Uruted Nations, in participating in United Natwns
debates, "maintained quite clearly" that, outside of trusteeship, Man
datory Powers had no obligation to account for their administration of
the said territories to thenited Nations or any other body.
ln its list, Respondent has included six nations, narnely Czechoslova
kia, Guatemala, Iran, Pero, Sweden, and Yugoslavia, for the sole reason
that they were signers of the report of the United Nations Special Com
mittee on Palestine. As l have mentioned, the Palestine report shows
that the United Nations not only considercd the Mandate for Palestine
to be in full force and effect at that time, but also recommended that the
United Nations exercise comprehensive supervisory authority over the
administration of that mandate prior to its termination. It is diffi.cultto
perceive how these six States can be considered as having "maintained
quite clearly" that, outside trusteeship, there was no obligation of ac
countability to an international body.
Furthermore, three of the 25 States (Cuba, India and Uruguay), and
the United States in its written statement before this honourable Court
in 1950, made clear their viewpoint that international accountability had
survived.
Two of the States mentioned in Respondent's list of 25, namely China
and the Philippine Republic, made statements reftecting their view that
the United Nations had supervisory authority over the mandated terri-
tory. (T.C.O.R., 2nd Sess., rst Part, pp. 123, 475-476.) .
The Chinese representative in 1947 stated to the Trusteeship Councll
that "1 think that by design and by general acceptance the functions
and responsibilities of the Mandates Commission have fallen upon the
shoulders of the Trusteeship Council". (Ib-id.,p. 123.)
The most decisive fact remains, Mr. President, that while there was
disagreement among severa! Members of the United Nations with regard
to the existence of the Mandate and the obligations of international
accountability, the view of the United Nations as a whole, expressed166 SOUl'H WEST AFRICA
through its resolutions on the subject, demonstrated its understanding
that the Mandate remained in full force and effect, and that the United
Nations had supervisory authority over the Territory. This is reinforced
by the United Nations treatment of the Palestine Mandate.
Respondent, through the severa] declarations and statements hereto
fore discussed, also demonstrated its recognition of the continuance of
the obligations of the Mandate after the dissolution of the League. lt
was not until the autumn of 1947 that supervisory authority of the
United Nations was questioned, and not until November 1948 was it
argued by Respondent that the Mandate had lapsed.
Renee, the actions of the League Assembly, of the United Nations,
and relevant statemerits and actions of the Respondent, combine to
support the conclusion that the Mandate and ail of the obligations con
tained therein survived the dissolution of the League, and that the
United Nations replaced the League as the supervisory organ over the
Mandate.
This concludes Part B of this phase of the Oral Proceedings, and,
with your permission Mr. President, the Applicants, at the appropriate
time, will place beforethis honourable Court legal issues connected with
the obligations of Respondent to submit to international supervision,
which will be Part C of the present phase of these proceedings. 5· ARGUMENT OF MR. GROSS
AGENT FOR THE GOVERNMENTO SF ETHIOPIAAND LIBERIA AT THE
PuBLic HEARINGS oF rg, 22, 23 AND24 MARCH1965
Mr. President and Members of this honourable Court, in my opening
presentation l had the honour to present to the Court the principal points
upon which the Applicants rely 1n support of their submissions that the
Respondent has violated, and is violating, its obligations under the
mandate.
PART C
The obligations in question, as l have pointed out, are those com
prising the two groups or kinds of obligations described in the Advisory
Opinion of this honourable Court of rr July 1950, as well as in the Judg
ment of the Court in rg62, namely (if l may quote from the 1962 Judg
ment) "obligations bath towards the inhabitants of the mandated ter
ritory and towards the League of Nations and its :Members".
As this honourable Court held in the rg62 Judgment, the Applicants
"have a legal right or interest in the observance by the mandatory" of
both of these groups of obligations. (That is quoted from I.C.J. Reports
I962, p. 343.)
My colleague, Mr. Moore, has presented to the Court the historical
background concerning the origin, nature and contents of the mandates
system, as weil as events, transactions, undertakings and instruments
made, formed or occurring during the period 1945 to 1949, that is to say,
the period which included the formation of the United Nations, the dis
solution ofthe League of Nations, and the commencement of operations
of the United Nations. This material, which has now been presented to
the Court as Part Bof this phase of the Oral Proceedings, is, we respect
fully submit, a foundation, as weil as a background, upon which rests
the contentions of bath Parties to the present proceedings, in respect of
bath groups or kinds of obligations, that is to say, those towards the
inhabitants and those towards the international supervisory organ.
A proper evaluation and interpretation of all such events, transactions
and undertakings must, we submit, proceed from this point of departure.
The aspect of the cases to which I now address myself, if the Court
please, concerns that group of Respondent's obligations which, in the
words of the Advisory Opinion of rgso, relate to the machinery for im
plementation. In the words of the Court, in the rgso Opinion "these
include the supervisory functions formerly exercised by the League of
Nations" and now, in the Applicants' submission, by the United Nations.
They include also, and very importantly, the right of the Applicants,
already settled by this honourable Court, to seek recourse to the judicial
process for protection "against possible abuse or breachcs of the man
date", in the words of the rg62 Judgment, at page 336.
In their written pleadings, the Applicants have dealt first with the
obligations of the mandatory towards the inhabitants of the Territory,
followed by a discussion of the Respondent's obligations towards thex68 SOUTH WEST AFRICA
international supervisory machinery. In view of the fact that this order
has been reversed in the Respondent's written pleadings, the Applicants
do so likewise with respect to their own presentation, for the Court's
convenience and for clarity of presentation.
The Applicants' submissions relevant to contentions whlch are ad
vanced at this stage are Submissions Nos. r, 2, 5, 7, 8and 9. set forth
in the Memorials (J) at pages 197 to rg8 and incorporated by reference
in the Reply (IV), at page 520.
Respondent does not dispute or deny the Applicants showing that
Respondent has failed and refused, and continue to fail and refuse (r)
to render to the General Assembly of the United Nations annual or other
reports containing information with regard to the territory and indi
cating the measures it has taken to carry out its obligations under the
Mandate, and (2) to transmit petitions to the United Nations from the
inhabitants of the territory. On the contrary, Respondent contends
(and 1 quote from the Counter-Memorial, Il, at p. 164) that its-
"obligations to report and account to, and submit to the supervi
sion of, the Council of the League of Nations, lapsed upon disso
lution of the League and have not been replaced by obligations to
submit to the supervision of any organ of the United Nations or
any other organization or body".
Mr. President, an issue of law thus is squarely joined which, in the
Applicants' respectful submission, is susceptible only of an unqualifiedly
affirmative or negative determination and judgment.
If1 may pass now to a consideration of the supervision in the plan of
the Mandate.
Mr. President, the history of the origin, nature and content of the
mandates system, which has been presented to the Court, makes crystal
clear that the most basic substantive innovation introduced by the
mandates system was that of international accountability. Such accoun
tability, as has been pointed out, forms the very foundation of what
the Court has called "the novel international regime", instituted by the
Mandate. 1t is a first principle. Accountability is expressed in the man
dates system by the imposition upon the Mandatory of an obligation to
submit to continuing international administrative supervision, so long as
the Mandate exists, or endures; and to submit to the ultimate recourse
of judicial protection when necessary, and when the appropriate con
ditions of Article 7• paragraph 2, the compromissory clause, have been
met.
In 1950 the Court explicitly so held on both counts, both with res
pect to the submission of administrative supervision, and with respect
to submission of unsettled disputes to the Court, in tenns of the com
promissory clause of Article 7·
In 1962, it is submitted, although the Court explicitly so held with
respect to judicial protection, it also, by necessary implication, as 1
shaHendeavour toshow, did so with respect to administrative supervision.
The innovation of international accountability also is expressed, as 1
shall elaborate shortly and as I attempted to set forth in my opening
summary in Part A of this phase of the Oral Proceedings, by the re
quirement that the consent of the League Council, now the United
Nations, be obtained for any modification of the terms of the Mandate.
This is the rule of the Mandate, expressed in the first paragraph of ARGUMENT OF MR. GROSS 169
Article 7, and stated in another way .it reflects the basic concept of the
Mandatory's accountability. .
Such accountability is the major element which distinguishes the
mandates system from the previously accepted concept-prior to the
mandates system and antecedent to the Covenant of the League of
Nations-the previously accepted concept of the moral obligation of
colonial regimes in existence prior to that time. It is the embodiment of
the principle of no annexations, which is expressed by the mandates
system, and which my colleague, Mr. Moore, has adumbrated to this
honourable Court in his remarks conceming the origin, nature and back
ground of the mandates system itself.
It has been submitted in our opening comments, Mr. President, that
the logical basis of the need for international supervision has nothing
to do, and has nothing in common, with the subjective motivations or
the intent of an advanced nation administering a non-self-governing
territory. Indeed, the requirement of international supervision is not
inconsistent with a presumption that an administering power will, and
must, endeavour in good faith to promote the welfare of the inhabitants;
this would seem to be an axiomatic, primitive and basic requirement,
underlying ali international agreements, or any other agreements of
any character. The submission to international accountability is based
upon the premise that decisions affecting the destinies of dependent
peoples should not be unilateral and unsupervised, however well-inten
ded, or well-motivated, or ill-intended, or ill-motivated such decisions,
with respect to their destiny, progrcss, and welfare, may be. It is for
this reason, among others, that the Applicants reject the contention of
the Respondent that the test or measure of the obligations of Article 2,
paragraph 2,of the Mandate, lies in the good or bad faith of Respondent
in respect of the procedures, methods, or conduct under those obliga
tions.
The innovation imported into the mandates system was that the
sacred trust of civilization must be assured by means of an enforceable
check or confirmation on the part of the organized international commu
nity in respect of the actual performance of the administering power,
and the consequences of its conduct and of its performance objectively
appraised. And, indeed, without such accountability, as the facts and
events of recent years has made only too clear, and continues to make
clear, no check or control of an international character would exist
over the administration of the territory.
Administration without accountability of an international character,
administration only "in the spirit of the old mandate", to borrow a
characterization frequent! y pronounced by Respondent's highest officiais,
is inherently incompatible with the essential nature and very basis of
the madates system. It follows, almost as a qttod erat demonstrandum,
that administration of the terri tory, in "the spirit of the old mandate",
without international supervision, is a contradiction in terms. The
"spirit of the old mandate", as has been shown, and as 1shall endeavour
to elaborate further, contains, as of its essence, the duty to submit to
international supervision. Administration without such submission
would be incompatible with the Mandate, both in letter and in spirit.
From this conclusion follows yet another, namely that to govern the
territory "in the spirit of the mandate", but without international
supervision, is, in fact, a mutilation of the Mandate, in the term used170 SOUTH WEST AFRICA
by Judge Bustamante in his separate opinion in rg62, to which I have
referred in my opening remarks. Acting "in the sprit of the mandate"
without submission to international supervision, or the unsupervised
government or regulation of the territory, is, as a matter of mandate
law, mandate regulation, perse a violation of the Mandate if, as we as
sume and as the Court has twice held, the Mandate continues in existence.
In short, the authors of the mandates system incorporated in the
Covenant the requirement for normal securities to assure performance
of the trust, notwithstanding their undoubted assumption that the
Mandatory would be motivated, if that term can be used in respect of a
collective and shifting group of individuals comprising a government, by
the purpose of discharging the trust in good faith. If the powers con
cerned had entertained doubts upon this score, it must be presumed that
they would not have conferrcd the responsibilities upon the Mandatory
in the first place. The measure of the obligations, as I shall endeavour to
make clear, must have been broader than that.
The essentiality of supervision consists not in policing the motivation
of the Mandatory, but in assuring that the results of its conduct are
compatible with the mandate objectives. It was for this reason that in
the decisive general considerations, formulated in the 1950 Advisory
Opinion, the Court found:
"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 this system, they considered that the effective perfor
mance of the sacred trust of civilization by the mandatory Powers
required that the administration of mandated territories should be
subject to international supervision." (I.C.J. Reports I950, p. 136.)
The Court went on to say that the rights of the peoples of mandated
territories could not be "effectively safeguarded without international
supervision and a duty to render reports to a supervisory organ".
(I.C.J. Reports I950, p.137.)
The Court in rgso distinguished what it called "the two kinds" of
international obligations, assumed by Respondent under the Mandate,
as I have said; the first group, in the words of the Court, was defined
in Article 22 of the Covenant and in Articles 2 to 5 of the Mandate. In
the Advisory Opinion of rgso, the Court referred to these substantive
obligations and stated:
"These obligations represent the very essence of the sacred trust
of civilization. Their raison d'êtreand original object remain. Since
their fulfilment did not depend on the existence of the League of
Nations, they could not be brought to an end merely because this
supervisory organ ceased to exist. Nor could the right of the popu
lation to have the Territory administered in accordance with these
rules depend thereon." (I.C.J. Reports I9JO, p. I33-)
[Public hearing of 22 Marck rg65]\
Mr. President, if it please the Court to recall, at the conclusion of the
Court's session on Frida yI was on the point of commencing a discussion
of the Applicants' contentions with respect to that phase of interna
tional supervision or accountability which relates to the right of recourse ARGUMENT OF MR. GROSS 171
to judicial protection. I had endcavoured, in introducing that subject,
to make clear the fact that the authors of the mandates system had in
corporated into the Covenant the requirement for normal securities to
assure performance of the trust, notwithstanding their asswnption that
the Mandatory would be motivated by the purposes of discharging the
trust in good faith, and that, as a concomitant of the normal security,
the authors of the Covenant and the express provisions of the Mandate
in Article 7 contemplated that there would be a right of judicial recourse
under the circumstances and inthe terms foreseen in Article 7, paragraph2.
With your permission, Mr. President, I should now like to address
myself to the right of recourse to judicial protection. Respondent, in its
written pleadings, has revived arguments which were fully elaborated
before this honourable Court in 1962, with respect to the question of the
lapse or otherwise of international supervision over the Mandate, in
cluding the right of judicial recourse. In the 1962 J udgment this honour
able Court reaffirmed the holding of the Court in 1950 in the Advisory
Opinion, in the following terms:
"The unanimous holding of the Court in 1950 of Article 7 of the
Mandate continues to reflect the Court's opinion today. Nothing
has since occurred which would warrant the Court reconsidering it.
AU important facts were stated or referred to in the proceedings
before the Court in 1950.
The Court finds that, though the League of Nations and the
Permanent Court of International Justice have both ceased to exist,
the obligation of the Respondent to submit to the compulsory ju
risdiction of that Court was effectively transferred to this Court
before the dissolution of the League of Nations. By its own resolution
of 18 April 1946 the League ceascd to exist from the following day,
i.e.,19 April 1946."
And I stop there in my quotation from the 1962 Judgment, at page 334-
The 1962 Judgment thereupon, after referring to the actions taken
by the Parties in respect of ratifications of the Charter of the United
Nations, and the consequent acceptance of the compulsory jurisdiction
of this Court in lieu of that of the Permanent Court, concluded as follows:
"This transferred obligation was voluntarily assumed by the
Respondent when joining the United Nations. There could be no
question of lack of consent on the part of the Respondent as regards
this transfer to this Court of the Respondent's obligation under
Article 7 of the Mandate to submit to the compulsory jurisdiction
of the Permanent Court. The validity of Article 7, in the Court's
view, was not affected by the dissolution of the League, just as the
Mandate as a whole is still in force for the reasons stated above."
1 have quoted, Mr. President, from page 335 of the 1962 Judgment.
The phrase in the Judgment, "for the reasons stated above", refers,
inter alia,to the discussion by this honourable Court in the 1962 Judg
ment of considerations set forth in the 1950 Advisory Opinion. In that
Opinion, as the 1962 Judgment observed, the Court discussed the two
kinds of international obligations assumed by the Respondent under
the Mandate, to wit, those "directly related to the administration of the
Territory", and those "related to the machinery for implementation".
In the context of the Court's references to the 1950 Advisory Opinion,
this honourable Court reached the conclusion in the 1962 Judgment that:172 SOUTH WEST AFRICA
"The findings of the Court on the obligation of the Union Gov
emment to submit to international supervision are thus crystal
clear.lndeed, to exclude the obligations connected with the Man
date would be to exclude the very essence of the Mandate. That
the League of Nations in ending its own existence did not terminate
the Mandates but that it definitely intended to continue them by
its resolution of 18 April 1946 will be seen later when the Court
states its views as to the true effect of the League's final act of
dissolution on the Mandates."
That is from page 334 of the 1962 Judgment.
Notwithstanding the reasons advanced by the Court in the 1950
Advisory Opinion, on the basis of which the Court concluded that the
Mandate as a whole is in existence and that its provisions with regard
to international supervision remain in full force and effect, and in the
light of the reasoning and conclusions of the Courin its 1962 Judgment,
to which I have just referred, Respondent nonetheless, and in the teeth
of such findings and conclusions, not only reasserts and reargues its
"new facts" contention-a phrase which I shall explain in a moment
but goes so far as to say that:
"The Court in 1950 treated the obligation of accountability as
being severable from other aspects of the Mandate, and based its
judgment regarding survival of accountability on a finding which
in effect rested on a tacit agreement considered to have been entered
into during 1945-1946 providing for substitution of supervisory
organs. And in 1962 the Court left open the question whether the
obligation of accountability had lapsed."
This is from the Rejoinder, V, at page 73·
lndeed, Respondent goes even further and makes the somewhat sur
prising comment that: "Applicants have made no attempt to answer
Respondent's analyses in the Counter-Memorial of the 1950 Opinion
and rg62 Judgment in these respects."
The relevant sections of the Counter-Memorial are cited in footnotes
on page 73 of the Rejoinder (V).
In ail deference, Mr. President, the Applicants have considered, and
remain of the view, that the Respondent's analyses in the Counter
Memorial in these respects are bath self-answering and self-defeating.
If an implication is sought to be drawn from Respondent's quoted
comment conceming the asserted failure of the Applicants to attempt
to answer analyses in the Counter-Memorial of the 1950 and rg6z Judg
ments of the Court-if an implication is sought to be drawn from Respon
dent's comment that the Applicants either tacitly agree with such
analyses made by Respondent, or that they have omitted comment
thereon through inadvertence, the Applicants take the opportunity of
assuring this honourable Court that neither of such implications is
warranted. On the contrary, the Applicants submit respectfully that
the Court's reasons and conclusions in both the 1950 Opinion and the
rg6z Judgment speak for themselves, and do not require analysis or
exposition by the Applicants in this respect. It is submitted that the
Respondent's analyses of bath the 1950 Opinion and the rç6z Judgment
are irreconcilable with their clear intendment and actual purport.
The meaning, weight and scope of the Judgment of this honourable
Court of 21 December 1962 was a subject of consideration and analysis ARGUMENT OF MR. GROSS 173
by the honourable President of the Court in his separa te opinion appended
to the J udgment of the Court in the case concerning the N orthem
Cameroons (the Judgment of 2 December 1963, at pages 68-70 of the I.C.J.
Reports of that year). In the light of the cogency and clarity of the treat
ment of this subject by the honourable President-if I may be permitted
the liberty of characterizing the President's comments thereon-it may
be of convenience to the Court to set forth as part of the record of these
proceedings the following passages from the separate opinion of the
honourable President, and with the Court's permission I should like to
quote therefrom:
"In the South West Africa cases the view of the Court that
Article 7 of the Mandate Instrument was inherently necessary or
essentialto the functioning of the Mandates System, giving effect to
the concept of what has been termed the 'judicial protection of the
sacred trust', was of the very heart of the Court's reasoning. This
view found its first expression in the Judgment when the Court was
dealing, not with the question of what was a dispute within the
meaning of Article 7 of the Mandate, but with the question raised
by the Second Objection of the Union of South Africa which centred
on the term 'another Member of the League of Nations .. .' in that
Article. The Union of South Africa had claimed that Ethiopia and
Liberia did not have the status required by the Article to invoke
the jurisdiction of the Court since neither was any longer a Member
ofthe League of Nations. The Court, after stating that this conten
tion was claimed to be based upon the natural and ordinary meaning
of the words 'another Member of the League of Nations', did not,
as I understand the Judgment;deny that the natural and ordinary
meaning of the words were as contended for by the Union of South
Africa.It stated that the rule of interpretation that recourse should
be bad, in the first place, at !east, to the ordinary and natural mean
ing of words was not an absolute rule of interpretation and then
proceeded to observe that-
'Where such a method of interpretation results in a meaning
incompatible with the spirit, purpose and context of the clause
or instrument in which the words are contained, no reliance can
be validly placed on it.' (I.C.]. Reports rg62, at p. 336.)
The Court then proceeded to state its reasons why reliance, in the
light of this observation, could not be placed upon the natural and
ordinary meaning of the words in question. The centre of its reasons
was the assertion that 'judicial protection of the sacred trust in each
Mandate was an essential feature of the mandates system'; the
administrative supervision by the League was 'a normal security'
to ensure full performance by the Mandatory of the 'sacred trust'
but 'the specially assigned role of the Court was even more essential,
sinceit was to serve as the final bulwark of protection by recourse
to the Court against possible abuse or breaches of the Mandate';
for 'without this additional security the supervision by the League
and its Members could not be effective in the last resort' since super
vision by the League Council was subject to the rule of unanimity
of its 1\fembers, including the approval of the :Mandatory itself. In
the event of a conflict between the Mandatory and other Members
of the Council, in the last resort, the Court contînued, 'the only174 SOUTH WEST AFRICA
course left to defend the interests of the inhabitants in arder to
protect the sacred trust would be to obtain an adjudication by the
Court .. .'. This, it said, could only be achieved by a State a Member
of the League invoking the adjudication clause in the Mandate
Instrument.
'lt was for this ail-important purpose that the provision was
couched in broad terms embracing "any dispute whatever" ... lt is
thus seen what an essential part Article 7 was intended to play as
one of the securities in the Mandates System for the observance of
the obligations by the Mandatory .. .' (I.C.J. Reports I962, p. 337-)
Moreover [the honourable President continues and concludes
in the relevant passage l am taking the liberty of citing from the
Northern Cameroons separate opinion], this 'essentiality of judicial
protection for the sacred trust', the right to implead the Mandatory
before the Permanent Court, was 'specially and expressly' conferred
upon the Members of the League 'evidently also because it was the
most reliable procedure of ensuring protection by the Court, what
ever might happen to or arise from the machinery of administrative
supervision'."
The honourable President concluded his opinion, so that I may
present it to the Court respectfully in context, by stating:
"ln the Dissenting Opinion of myself and Judge Sir Gerald
Fitzmaurice in those cases there appear the reasons why we were
unable to agree with this reasoning of the Court, and there is no need
to repeat them here."
The reasons referred to are the following.
''There was, the Court said, an 'important difference' in the struc
ture and working of the system of supervision of mandated terri
tories under the League and that of trust territories under the
United Nations, namely that the unanimity rule in the Council of
the League had under the Charter been displaced by the rule of a
two-thirds majority. This observation of the Court was directed to
mcet an argument that Article 7 was not an essential provision of
the Mandate Instrument for the protection of the sacred trust of
civilization,in support of which argument attention had been
called tothe fact that three of the four 'C' Mandates when brought
under the trusteeship provisions of the Charter of the United Nations
did not contain, in the respective trusteeship agreements, any ad
judication clause. It was in the course of dealing with this argument
that a statement of the Court, greatly relied upon by the Respondent
in this case[that is, the Northern Cameroons case], to distinguish the
present case from that of South West Africa was made. The Court's
statement [said the honourable President], was as follows:
'Thus legally valid decisions can be taken by the General Assem
bly of the United Nations and the Trusteeship Council under Chap
ter XIII of the Charter without the concurrence of the trustee
State and the necessity for invoking the Permanent Court for judi
cial protection which prevailed under the Mandates System is
dispensed with under the Charter.'" (I.C.]. Reports r963, pp. 68-70.)
Mr. President, I had begun to read and conclude the honourable
President's statement in the separate opinion in the Northern Cameroons ARGUMENT OF MR. GROSS 175
case, and 1 should like to read several sentences more to assure that,
to the best of my ability, I state the honourable President's comments
in proper context.
As l started to read before:
"In the Dissenting Opinion of myself and Judge Sir Gerald
Fitzmaurice in those cases [the South West A/rica cases] there appear
the reasons why we were unable to agree with this reasoning of the
Court, and there is no need to repeat them here. It is sufficient for
the moment to note the reasoning of the Court and to observe that
it was directed to establishing that in the events which happened
there arose out of a debate in the Assembly of the League, on the
eve of its dissolution, a unanimous agreement among all Member
States that the Mandate should be continued to be exercised after
the dissolution of the League of Nations in accordance with the
obligations defined in the Mandate Instrument, including that of
the Mandatory under the adjudication clause; that this specifie
obligation survived and necessarily involved reading into the clause
the words 'Members of the United Nations' in place of the words
'~1embe or he League of Nations'." (Ibid., p. 70.)
1 thus end my quote from the opinion of the honourable President
appended to the Judgment in the Northern Cameroons case.
I have, with respect, and with apology, quoted at this length from the
honourablc President's opinion because it does seem tome, as I stated
at the outset of the quotation, that it reftects a clear, cogent, un
answerable analysis of "the very heart" of the Court's Judgment in
1962 and that further elaboration is hardi y necessary by way of comment
or analysis of that Judgment.
In the light of the analysis which 1 have just read by the honourable
President, 1 therefore will forbear to comment further in this context on
that subject. .
It will be recalled, Mr. President, as 1 pointed out in my summary of
legal issues, inPart A of this phase of the Oral Proceedings, that this
honourable Court in the 1962 Judgment notcd that Respondent, at that
time, in the Court's words-
"... argued that the rights and obligations under the Mandate in
relation to the administration of the territory of South West Africa
being of an objective character still exist ... ". (I.C.J. Reports rg62,
pp. 332-333-)
lt was, of course, clear on the face of Respondent's statement before
this honourable Court in rg62, and in its written pleadings on the Prelim
inary Objections, that Respondent's argument in this respect was an
alternative argument. It was directed to the proposition that, in respect
of this honourable Court's jurisdiction-which was the central legal issue
joined in Ig6z on the Preliminary Objections-
"... even in the event of a totallapse of the Mandate as a treaty or
convention, it could stiJl have an objective existence independently
of a treaty or convention. And I say [this was l\lr. de Villiers speak
ing] that 1 am perfectly prepared to accept that proposition for
purposes of argument, because it does not affect my contention
relativeto jurisdiction. I need not, at this stage, ask the Court to
choose bctween those two alternatives, because both ha\·e the SOUTH WEST AFRICA
same resultas far as jurisdiction is concemed." {Counsel'sstatement
in Oral proceedings, 19 Oct. 1962, aftemoon.)
Respondent's alternative argument, thus submitted arguendo, was,
however, thought relevant by the Court toits interpretation of the 1950
Advisory Opinion, an interpretation advanced by Respondent in rg62,
and now repeated, that:
"The Court in rgso treated the obligation of accountability as
being severable from other. aspects of the Mandate ... " (V, p. 73.)
In the words of Respondent's learned Counsel during the rg62 Oral
Proceedings:
"... if the elements contained in Articles 6 and 7 are severable from
the rest of the Mandate institution, then acceptance of my proposi
tions concerning Articles 6 and 7 does not result in a conclusion that
the whole of the Mandate has lapsed. It means that the rest still
survives as a trust without, however, international accountability
or international supervision, and \\'ithout compulsory jurisdiction
on the part of the Court." (Oral proceedings rg62, rg Oct. rg62,
afternoon.)
As I have said, Mr. President, Respondent's contention, even though
advanced in the alternative and arguendo, was based and remains based.
as it is renewed in the written pleadings now before the Court, upon the
untenable premise that the mandate provisions, as a matter of mandate
law, could survive as a so-called trust, "without", ta use the Respondent's
phrase again, "without, however, international accountability or inter
national supervision, and without compulsory jurisdiction on the part
of the Court''. This, we submit, is a contradiction in terms, whether made
as an alternative argument, arguendo or otherwise.
It was, no doubt, we submit with respect, for this reason that the
Court, in the 1962Judgment, after noting Respondent 'sargument, pointed
out that:
"Similar contentions were advanced bj• the Respondent in rgso.
and the Court in its Advisory Opinion ruled:
'The authority which the Union Govemment 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
to deny the obligations thereunder could not be justified.' (I.C.j.
Reports rgso. p. 133.)" (I.C.j. Reports rg62, p. 333.)
The 1962 Judgment, after quoting the passage which I have just read
to the Court, proceeds, in the same context, with a further analysis of
the 1950 Advisory.Opinion, and concluded:
"The findings of the Court on the obligation of the Union Gov·
emment to submit to international supervision are thus crystal
clear. Indeed, to exclude the obligations connected with the Man
date would be to exclude the very essence of the Mandate." (rg6z
fudgment, p. 334.)
It will thus be seen that the substance of Respondent's present first
alternative argument, that the supervisory provisions of the Mandate
have lapsed although not carrying to their death the balance of the
Mandate, was first advanced to the Court in 1950 and rejected in the ARGUMENT OF MR. GROSS IJ7
rgso Advisory Opinion. The same argument was advanced in 1962, and
again rejected. The same argument is today advanced.
In the light of the foregoing, it seems sufficient to note, without further
comment or characterization, that Respondent's argument conceming
the severability of Articles 6 and 7 does not gain force or merit upon
repetition for the third time.
ln distinguishing the two kinds or groups of obligations assumed by
Respondent under the Mandate, that is, these relating respectively to
the administration of the Territory and to the machinery for implemen
tation, the Court commented:
"What expression was given to 'the right of the population to
have the Territory administered in accordance with these rules' by
the framers of the mandates system? It was no more and no less
than the obligation of accountability of the mandatory, which took
·the form of the 'second group of obligations'",
(This is from the 1950 Opinion and the Court goes on to say-)
"which in turn related to the machinery for implementation, and
was closely linked to the supervision and control of the League."
Hence, the Court concluded, if the first group of obligations still existed
(those towards the inhabitants), the right of the population to have the
territorv administered in accordance therewith also remained.
There is one, and only one, way in which the right to have the Terri
tory administered in accordance with "the very essence of the sacred trust
of civilization" (in the language of the rgso Opinion} can be fulfilled.
"No such rights of peoples [said the Court] could be effectively safe
guarded without international supervision and a duty to render reports
to a supervisory organ." This is from the 1950 Opinion:
As a matter of logical deduction, it is manifest that the continued
vitality ofthe rights of the inhabitants with respect to the first group
of the substantive obligations requires that such rights be subject to
administrative supervision and judicial enforcement. To require that
such rights be capable of enforcement is to require that the territory be
administered in accordance with such rights-these are complementary
and mutually inter-related rights and obligations. To require this is to
require that the Mandatory, so long as it retains rights under the Man
date, must be subject to the obligations of accountability, including
judicial protection.
~1r .resident, in the Judgment of 2 December r.g63in the case con
cerning the Northern Cameroons, the Court made clear the nexus linking
the severa! forms of international supervision and accountability in
respect of an international trust cognate to that now before the Court.
In that case, as the Court pointed out, the whole system of administrative
supervision under the relevant trusteeship agreement had come to an end
as a result of a decision of the United Nations General Assembly.
On the basis of the foregoing consideration (that is to say the end of
administrative supervision), the Court drew the following conclusion:
"The Court cannat agree that under these ctrcumstances the
judicial protection claimed by the Applicant to have existed under
the Trusteeship System, would have alone survived when ail of
the concomitant elements to which it was related bad disappeared."
(I.C.]. Reports I963, at p. 36.) SOUTH WEST AFRICA
In the cases now before this honourable Court, the Court has held that
the judicial protection claimed hy the Applicants has continued to exist,
notwithstanding the dissolution of the League of Nations, and the dis
appearance of the old Court. On a parity of reasoning with the finding
just cited from the Northern Cameroons case, it cannot be assumed that
the Court's decision in the rg62 Judgment is to be interpreted as holding
that the only form of international supervision which has survived is
that of judicial protection, without the concomitant elements implicit
in the system of administrative supervision, along with judicial protec
tion. Indeed, in our submission, it would seem to follow as an a fortiori
proposition, that the Court's holding conceming the survival of judicial
protection presupposes the survival of concomitant administrative
supervision, which the honourable Court characterized in the I962 Judg
ment as the "normal security".
Mr. President, 1 have, in presenting to the Court the problems involved
in the survival of judicial protection, attempted to show the relationship
between administrative supervision and judicial protection as inter
related concomitant elements of one system of international supervision.
1 shaH shortly, with the Court's permission, come to a separate, more
detailed analysis of the elements inherent in the system of administrative
supervision itself, but I have taken the liberty of referring to both ad
ministrative supervision and judicial protection in this phase of my
remarks because of their inter-relationship and because of the Applicants'
respectful submission that the Court having held that judicial protection
has survived, it follows, in our view, as an a fortiori proposition that the
concomitant element of administrative supervision likewise must be
deemed to have survived in accordance with the reasoning of the Court.
The obligations of international supervision, accordingly, are of the
following three inter-related kinds. They comprise the obligation to
submit to administrative supervision and the obligation to submit to
judicial protection. And thirdly, as I shall show later, they include also
the duty to seek the consent of the United Nations, the administrative
organ in respect of any proposais to modify the terms of the Mandate.
It seems clear that emphasis is properly to be placed upon the use
of the phrase by the Court "one of the securities'', in the passage from
the rg6z Judgment I shall now quote to the Court. The Court referred to
the obligation to submit to judicial protection, and I quote-"as one of
the securities in the Mandates System for the observance ofthe obligations
by the Mandatory"-"one of the securities in the mandates system".
The history of the dispute now before the Court, Mr. President, in
which the normal security for the protection of the rights of the inhabi
tants has been frustrated by virtue of Respondent's failure and refusai to
discharge its obligation to submit to international supervision, even
while retaining rights under the Mandate, underscores the significance
of the Court's description of the right to implead the mandatory before
the Court as (what the Court described as) "the most reliable procedure
of ensuring protection by the Court, whatever might happen to or arise
from the machinery of administrative supervision". (l.C.J. Reports I962,
p. 338.)
The Court's concept in respect of the importance of judicial protection,
as I have pointed out, was characterized by the honourable President, in
his separate opinion in the Northern Cameroons case, as "the very heart
of the Court's reasoning". ARGUMENT OF MR. GROSS 179
As I have also attempted to point out, Mr. President, Respondent, in
terms of Article 6, is under a duty to account administratively to a
supervisory organ, as weil as to submit to the jurisdiction of this Court.
ln terms of Article 7, paragraph I,of the Mandate, Respondent is also
under a duty to account to that same organ (to the United Nations) in
respect of modifications of the terms of the Mandate, and to seek consent
thereto.
Therefore, in conclusion of this section of my argument, before turning
to an analysis of administrative supervision itself, may 1be permitted to
summarize again, by painting out the inter-related, concomitant aspects
of administrative supervision, the right of judicial recourse, and the
duty to obtain the consent of the administrative organ to any proposed
modifications of the terms of the Mandate.
Keeping in.mind, Sir, the inter-relationship of these three concomitant
elements, I turn, with the President's permission, to a discussion of the
provisions of the mandate concerned with administrative supervision and
Article 22, paragraphs 7-9, of the Covenant of the League of Nations,
as well as Article 6 of the Mandate itself.
Mr. President, in Part A of this phase of the Oral Proceedings, as well
as in the remarks just concluded, 1 have referred to the Court's holding
in both the rgso Advisory Opinion and in the rg62 Judgment, that the
validity of the compromissory clause of Article 7 "was not affected by
the dissolution of the League, just as the Mandate as a whole is still in
force". That is from the rg6z Judgment, at page 335·
In its written pleadings, Respondent requests the Court to reconsider
and reverse its holding with respect to the validity of the compromissory
clause of Article 7, as I have just described. In support of its request,
Respondent re-argues the points presented to the Court in rg6z, in
substantially the same form and terms, and I have not, with respect,
regarded it as necessary to do more than refer to the comments by the
honourable President summarizing cogently the meaning and purport
of the 1962 Judgment of the Court, with respect to the judicial protection
phase.
In addition, Respondent has advanced a new form of argument, as a
new alternative contention, to the effect that the asserted lapse of
Article 6 ofthe Mandate has brought about collapse of the Mandate as a
whole, on the basis of the premise-advanced by Respondent only in
the context of its second alternative contention-that the mandate
provisions in respect of administrative supervision are essential in the
·mandates system and an inseverable element of the Mandate. This is the
premise of the second alternative contention.
Inasmuch as the Applicants contend that the mandate provisions
imposing upon the Respondent the obligation to submit to administra
tive supervision are, indeed, inseverable and integral to the Mandate, it
appears that there is common cause in this proposition, at least in so far
as the Respondent's second alternative contention is concerned. Re
spondent, in the Rejoinder (it is only fair to point out to the Court),
expresses sorne concern lest the Applicants' reference to "common cause"
between the Parties in respect of the integral and inseverable nature of
international supervision-that reference to "common cause" in that
respect might create a misleading impression. In view of Respondent's
method of pleading and its highly selective use of the premise of essen
tiality of administrative supervision (which is limitcd. as I say, onlyr8o SOUTH WEST AFRICA
to the context of its second alternative argument), there seems little
purpose to be served by engaging in debate on the matter of whether
there is "cornmon cause" in this respect or not. It seems important to
the Applicants to come to grips with the problem itself, which 1shall now
endeavour to do.
The Applicants, accordingly, will attempt in what follows, to support
their submission that the provisions of the Mandate embodying obliga
tions to submit to international administrative supervision are basic
obligations essential to the Mandate and inseverable from the balance.
As the Applicants have pointed out in Part A of this phase of the Oral
Proceedings, acceptance of Respondent's first alternative contention,
according to which administrative supervision has lapsed without how
ever collapsing the balance of the Mandate, would leave the Applicants
and other States similarly situated with no protection against asserted
abuse or breaches of the Mandate other than through recourse to judicial
protection which is, in any event, the indispensable final bulwark.
Under the Applicants' :first alternative contention, pursuant to which
Article 6, the administrative supervision provision, would fall away,
leaving the balance of the Mandate intact, Article 7, the compromissory
clause, would remain in effect. The Applicants likewise have pointed out,
citing the Northern Cameroons Judgment as 1 just have done, that ad
ministrative supervision is a concomitant of the right of judicial recourse.
We have, moreover, quoted from the Judgment of the Court in rg62
as well as from opinions of learned judges in the rg62 proceedings, which
I quoted in the opening phase of our presentation, showing that, in the
concise phrase of the honourable President and Judge Sir Gerald Fitz
maurice, in their joint dissenting opinion in rg62, Articles 6 and 7 of
the Mandate stand as "designed portions of an inherent and integrated
whole" (l.C.f. Reports I962, p. 553).
The arguments advanced by Respondent in the context of its second
alternative argument demonstrate persuasively that administrative
supervision was regarded by the authors of the mandates system as an
integral element of the mandates system, as being of the essence thereof,
and as being an inseparable provision of the Mandate. This being so,
there might appear to be small justification or warrant for the Applicants
to make a demonstration tending toward the same conclusion.
Nevertheless, in the light of Respondent's rather hypothetical and
conditional approach with respect to this premise, particularly inasmuch
as Respondent proceeds from the premise of essentiality of administrative
supervision only in the context of one branch of its case, that is in respect
of the second alternative contention, the Applicants respectfully adduce
considerations and arguments, demonstrating that the obligation to
submit to international administrative supervision is undoubtedly an
essential element of the mandates system, that it imported a basic obli
gation into the Mandate, as a matter of mandate law, and that the events
and transactions which took place at the time of the dissolution of the
League of Nations leave no room for doubt that the obligations of inter
the dissolution of the
national administrative supervision survived
League, and that the United Nations replaced the League of Nations
as the administrative supervisory organ.
In Part A of our presentation, Mr. President, I summarized the major
legal premises of the respective Parties, addressed to the issues posed by
Respondent's contention that administrative supervision has lapsed, ARGUMENT OF MR. GROSS I8I
and the Applicants' counter-contention that the United Nations bas
replaced the League as supervisory organ over the Mandate, in terms
of Article22 of the Covenant and of Article 6 and Article 7, paragraph I,
of the Mandate.
I venture to summarize again Respondent's two major contentions
in this regard as follows.In assuming the Mandate, the obligation under
taken by Respondent, "was not one to submit to 'international super
vision', but, rather, to submit to a specifie supervision of particular
League organs"-this is quoted from the Counter-Memorial.
When the League dissolved and the United Nations commenced opera
tions-sa runs their second major premise-the latter did not decide to
assume supervisory authority over the Mandate, nor did Respondent
agree to submit to supervision by the United Nations.
The Applicants have sought to point out that appraisal of Respon
dent's fust major contention rests upon analysis and interpretation of
events, transactions and undertakings occurring during the period of
the formation of the League and of the mandates system. Similarly,
proper evaluation of Respondent's second contention, that is that when
the League dissolved and the United Nations commenced operations the
United Nations did not decide to assume supervisory authority, nor did
Respondent agree to submit to supervision by the United Nations, proper
evaluation of that contention involves analysis and interpretation of
events, transactions and undertakings occurring during the period of
the demise of the League and the birth of the United Nations.
The relevant history and background of the League Covenant and of
the mandates system bas been laid before the Court in Part B of our
presentation by my colleague, Mr. Moore.
Upon the basis of the events and transactions thus surveyed, the
Applicants respectfully submit that an obligation to submit to interna
tional administrative supervision was regarded by the authors of the
mandates system as, indeed, basic to the novel international institution
then being formed, one regulated by international rules particular to
itself. The feature of international supervision, indeed, stamped the man
dates system with its novel character; such supervision was the "normal
security", embodied in the Covenant of the League itself, and designed
to safeguard the sacred trust.
As I ventured to comment during the Oral Proceedings before this
honourable Court in rg62:
"Responsibilities assumed by South Africa in the Mandate were
based upon its pledge to discharge a 'sacred trust of civilization' and
to give 'securities for the performance of this trust'-these are the
words of the Covenant of the League. Phrases of such weight and
dignity tend to lose their lustre with the passage of time, but never
their significance." (Oral proceedings, 15 Oct. 1962, morning.)
Mr. President, the high and humane purposes of the new institution,
based as it was upon the principle of non-annexation on the one hand,
and self-determination on the other, call for the application of principles
of interpretation in a manner befitting its character.
This honourable Court, in interpreting the Convention of Genocide,
an international agreement the objectives of which, broadly speaking,
are cognate with those of the sacred trust of the Mandate, stated as
follows:182 SOUTH WEST AFRICA
"The objects of such a convention must also be considered.
The Convention was manifestly adopted for a purely humanitarian
and civilizing purpose. It is indeed difficult to imagine a Convention
that might have this dual character to a greater degree since its
object on the one hand is to safeguard the very existence of certain
hurnan groups and on the other to confirm and endorse the most
eJementary principles of morality. ln such a convention the con
trading States do not have any interest of their own: they merely
have, one and ail, a common interest, namely, the accomplishment
of those high purposes which are the raison d'êtreof the Convention.
Consequently, in a convention of this type one cannot speak of
individual advantages or disadvantages to States, or of the mainte
nance of a perfect contractual balance between rights and duties.
The high ideals which inspired the Convention provide, by virtue of
the common will of the parties, the foundation and measure of all
its provisions." (I.C.]. Reports I95I, p. 15.)
This is from the Court's Judgment in the case involving reservations to
the Genocide Convention.
Mr. President, it would be difficult indeed to find words more apposite
to a determination of the principles of interpretation and application of
Article 22 of the Covenant and of the relevant provisions of the Mandate
for South West Africa itself.
Respondent, in its written pleadings, summarizes certain principles of
treaty interpretation, which are set forth in the Counter-Memorial,
Il, pages IIO-IJ4. In respect of the application of such principles Respon
dent correct! y comments:
"it is, of course, necessary to look at and consider the instrument as
a whole before any conclusion is reached about the meaning or effect
of any part thereof' '.
\Vith specifie reference to the principle of effectiveness Respondent
states:
"This principle takes account of the objects and purposes of the
instrument to be interpreted, and presumes that the parties intended
for particular provisions the maximum effectiveness, consistent
with the clear text, towards achievement of such objects and pur
poses."
This also is quoted from the Counter-Memorial, within the series of pages
I have already cited.
Although Respondent's comments, just quoted, appear to the Appli
cants in general to be a correct formulation, note might be taken that
the phrase "clear text" in the second quoted passage may involvc a
latent ambiguity. Whether or not a provision is "clear" may, of course,
depend upon the context rather than merely upon the text.
The phrase "clear text" as employed by the Respondent in the quo
tation I have just cited, probably is intended by Respondent to refer to
another canon of interpretation, namely that effect should be given to
the natural and ordinary meaning of words employed in a provision.
However, as this honourable Court said in the 1962 Judgment, in relation
to precisely the same point:
"But this mie of interpretation is not an absolute one. \Vhere
such a method of interpretation results in a meaning incompatible ARGUMENT OF MR. GROSS
with the spirit, purpose and context of the clause or instrument in
which the words are contained, no reliance can be validly placed
on it." (I.C.J. Reports I96z, p. 336.)
Mr. President, applications of canons, or rules, to the interpretation
of treaties or institutional arrangements to which there are parties
whether called "treaties" or not-is, of course, based upon the premise
of ascertaining the intentions and views of the parties in the light of
common sense and experience in the conduct of human affairs.
The principle of maximum effectiveness, ut resmagis valeat quampereat,
is the very embodiment of that premise.
In a widely quoted comment concerning the rule of effectiveness,
Lord MeNair remarked, inter alia:
"it is the duty of a tribunal to ascertain and give effect to the inten
tion of the parties as expressed in the words used by them in the
light of the surrounding circumstances". (Law of Treaties rg6r,
p. 383.)
On the one hand, the tribunal is to avoid revision of the instrument,
in the sense of reforming it, rather than ascertaining the true intentions
ofthe parties or, as it is sometimes put, engaging in judiciallegislation.
On the other hand, full effect is to be given to the "spirit, purpose and
context of the ... instrument in which the words are contained", in
the words of this honourable Court, which 1 have previously quoted
from the rg62 Judgment.
In their written pleadings, the Applicants refer to a long line of cases
decided by this honourable Court and its predecessor, in relation to the
Applicants' contention that the compromissory clause of Article 7 of
the Mandate should be interpreted in a sense which would give effect to
the humanitarian objectives of the Mandate and effectuation of the
sacred trust of civilization.
I forbear from repetition of quotations from our written observations,
respectfully drawing them to the Court's attention-they appear at
pages 476-482 (1) of the Applicants' Observations in the preliminary
objections phase of these proceedings.
In the same context, the Applicants have quoted an excerpt from
The Development of International Law by the International Court, by the
Iate Judge Sir Hersch Lauterpacht, in which the learned Judge referred
to the fact that:
"in a considerable number of cases the Court, in interpreting inter
national law, has been in fact confronted with a choice between the
principle of the minimum restrictions upon the sovereignty of States
and the attribution of full effect to what appears to be the purposc
of the obligations binding upon or undertaken by them".
The learned late Judge then proceeds, after citing numerous instances
and precedents, to say:
"We have seen that the result of that choice has been such that
the jurisprudence of the Court in this sphere can to a large extent
be conceived in terms of a restrictive interpretation of daims of
State sovereignty."
This is cited from the 1958 edition at page 297.
Respondent's contention that the obligation of international super
vision, imposed and assumed under the Covenant and Mandate, merely SOUTH WEST AFRICA
was intended to refer to a specifie supervisory authority, to wit, the
League Council, is based upon the argument, inter alia, that:
"Since in fact nobody in 1920 contemplated the possibility of
the future dissolution of the League, it would be unrealistic to im
pute an intention to the authors of the Mandate to guard against
the possible consequences of such dissolution."
This is from the Rejoinder, V, at page 34-
This argument, with ali respect, seems to the Applicants to involve a
non sequitur and, moreover, rnisapplies principles of interpretation. It is,
we think, a non sequitur because the undenied fact that nobody in 1920
foresaw the dissolution of the League of Nations has nothing to do with
what they would have wished to guard against had the possibility been
envisaged. Unless the nature and purpose of the mandate institution has
been misunderstood and rnisapplied by this honourable Court, it seems
obvious that the authors of the mandate systems would have been, and
indeed were, intent upon guarding against any possibility-foreseen or
unforeseen, predictable or unpredictable-whereby international super
vision would lapse, leaving the sacred trust to the unregulated, unsuper
vised control of the trustee. In short, the authors of the mandates sys
tem could not have intended that any situation could possibly arise in
which the trustee would end up with the corpus of the trust in his pocket,
by default. An intention to the contrary would have been irreconcilable
with the essential attribute of the Mandate, as found by this honourable
Court, namely that:
"The rights of the Mandatory in relation to the mandated terri
tory have their foundation in the obligations of the Mandate and
they are, so to speak, mere tools given to it to enable it to fulfil its
obligations." (l.C.J, Reports I962, p. 329.)
Respondent's argument to the contrary would impute to the authors
of the Covenant and the Mandate an intention to permit the mandatory,
under unforeseen and unpredictable circumstances, to employ its rights
as a lever for annexation, rather than merely as a tool enabling it to fulfil
its international obligations.
For these reasons we find anon sequitur in the Respondent's contention.
Moreover, Respondent's argument is not based upon any valid prin
ciple of interpretation. Courts frequently determine, in the light of
circumstanccs, the nature and other provisions of an agreement, what
the parties would have intended, had they foreseen certain possibilities.
This is indeed particularly pertinent to the present cases, in other respects.
As Judge Jessup pointed out in his 1962 separate opinion:
"It must also be remembered that the mandatory was a 'Manda
tory of the League of Nations'. But according to the accepted view,
the termination of the League did not terminate the Mandate as an
institution which means that the Mandatory also, and specifically
the Union of South Africa, qua Mandatory, must have survived the
dissolution of the League although its mandator was no longer in
existence." (I.C.].Reports I962, p. 414-)
The authors of the mandates system, in other words, did not forcsee
that Respondent would cease to be a member of the League of Nations,
a manda tory on behalf of the League, or for that matter, if it is relevant,
would cease to be a member of the juridical system of which His Britan- ARGUMENT OF MR. GROSS
nic Majesty was Sovereign. In accordance with the text of the Mandate,
the Mandate was-
"... conferred upon his Britannic ~Iajes ttybe éxercised on his
behalf by the Government of the Union of South Africa".
These are words to which literai and normal interpretation could not
be applied in the present context.
Application of the principle of interpretation contended for by Re
spondent would thus make it "unrealistic" to impute an intention to
the authors of the Mandate that Respondent should continue to exercise
rights overthe Territory at a time when it might no longer be a member
of the League or of the British Commonwealth of Nations.
In the course of a consideration of principles of construction, in his
1962 dissenting opinion, Judge van Wyk made the following comment,
pertinent to the question under discussion:
"One must also bear in mind that parties frequently deliberately
use wide terms so as to provide for aU possible situations, foreseen
and unforeseen, and it follows that when a situation not foreseen
by the parties arises which falls within the meaning of the words
employed by them they are deemed to have bad a common inten
tion in regard thereto." (I.C.J.Reports I962, p. sso.)
It need not be added that the passage quoted from the dissenting opinion
was a statement of a general nature and no contrary inference is to be
drawn from the fact that I have quoted it with respect toits application
to the pending cases.
Article 22 of the Covenant of the League used very "wide terrns"
indeed in formulating and innovating the legal principle-
"... that the well-being and development of such peoples [that is,
peoples not yet able to stand by themselves] form a sacred trust of
civilizationand that securities for the performance of this trust
should be embodied in the Covenant".
These are the words of Article 22, paragraph 1,of the Covenant.
Read in the light of this ovefiiding purpose, the conclusion is not
merely permissible, but, with respect, it seems to be unavoidable, that
the intention of aH the parties to the Covenant and to the mandates
system must be presumed to have been that, if the League were to
dissolve, which was not foreseen and not predicted, sorne other way
would have to be found by which the Mandate would be supervised.
In the words of Judge Bustamante, in his rg62 separa te opinion:
"Following the scheme of ail conventions, in the Mandate agree
ments provision is made in such a way as to ~arante tee func
tioning ofthe system during the whole period of tts duration." (I.C.J.
Reports I962, p. 382.)
The Barcelona Traction case, the Judgment in which was rendered
after the filing of the Applicants' Reply, is instructive by analogy to the
point under discussion. Warning against a" confusion ofends with means",
the Court spoke in that case of:
" ...the end being obligatory judicial settlement, the means an
indicated forum, but not necessarily the only possible one". (I.C.].
Reports I964, p. 38.)186 SOUTH WEST AFRICA
The Court went on to say:
"An obligation of recourse to judicial seUlement will, it is true,
normally find its expression in terms of recourse to a particular
forum. But it does not follow that this is the essence of the obligation
... The substantive abject was compulsory adjudication, and the
Permanent Court was merely a means for achieving that abject.
1t was not the primary purpose to specify one tribunal rather than
another, but to create an obligation of compulsory adjudication.
Such an obligation naturally entailed that a forum would be indi
cated; but this was consequential." (Ibid.)
Similarly, :Mr.President, in the present cases, the end was international
supervision, the means was the League and is now the United Nations
which, as the Court found in 1950, is-
"... legally qualified to exercise the supervisory functions previously
exercised by the League of Nations ... ". (I.C.]. Reports I950,
p. 137-)
The "substantive obligation"-to use the phrase of the Court of the
Barcelona Traction case-the "substantive obligation" under the Man
date, is international supervision: the League was-quoting again
''merely a means for achieving that abject".
The Barcelona Traction case, it is submitted, demonstrates that the
Court will construe the intention of the parties to an agreement in the
light of what their common intent would have been, if they had foreseen
developments relevant to their common purpose.
The parties to the compromissory clause in Barcelona Traction did
not foresee the demise of the Permanent Court, yet the Court had no
difficultyin reaching the conclusion that, in view of their purpose, the
parties would have intended to submit their disputes to the new Court
had they anticipated the demise of the old one.
In the present cases, the presomption is strengthened by reason of the
applicability of the basic rule of equity and of reason, to wit, that parties
will never be deemed to intend that, by virtue of disappearance or demise
of other parties, the fiduciary will keep for himself a beneficiai interest
never intended for him.
It is therefore, Mr. President, not an occasion for surprise that actions
of the parties to the events and transactions during the period of 1945-
1949, including the Respondent, were wholly compatible with the purpose
of the mandates system, and the equitable principle to which 1 have
just referred.
A most compelling form of evidence in respect of the intention of
parties to an instrument, no doubt, is the conduct of the parties in
relation thereto. \Vith specifie reference to the events and transactions
which took place during the period commencing in 1945 and which
centred upon the future of the Mandates, including the Mandate for
South West Africa, this honourable Court cited and applied the principle
that, and I quote from the 1950 Opinion:
"Interpretations placed upon legal instruments by the part--s to
them, though not conclusive asto their meaning, have considerable
probative value when they contain recognition by a party of its
obligations under an instrument." (l.C.J. Reports I950,pp. 135-136.)
Application to the undisputed facts of the principle thus formulated ARGUMENT OF MR. GROSS
by the Court was one consideration, inter alia,which underlay the
Court's conclusion that Respondent's declarations during the relevant
period, and 1 quote again from the 1950 Opinion:
" ... constitute recognition by the Union Government of the con
tinuance of its obligations under the Mandate and not a mere
indication of the future conduct of that Government". (I.C.].
Reports I950, p.135.)
The indispensability of administrative supervision in the scheme of
the Mandate, and its complementarity with judicial protection, of which
it is a concomitant element, in the words of this honourable Court in
the Northern Cameroons Judgment, is conceded by Respondent in a
rather explicit manner in its Counter-Memorial, from which 1 quote the
following passage :
"... it is therefore clear that the possibility of proceedings under
the compromissory clause, even on the widest suggested interpre
tation of the Court's powers thereunder, could not have provided a
substitute for reporting and accountability and administrative
supervision, as contemplated by the authors of the Mandate System
in providing that the tutelage should be exercised by the
advanced nations 'as Mandatories on behalf of the League'".
(Il, p. IJJ.)
It is, needless to say, quoted in quite a different context, but nevertheless
the words do mean what they say.
Respondent's concession which 1 have just quoted is but another
way of saying that administrative review is essential, but must be sup
plemented by judicial protection, just as judicial protection is essential,
but cannot fill the role of administrative supervision. It is submitted,
with respect, that this is precisely the meaning of the Court's finding
in the rg6z Judgment, that:
"The administrative supervision by the League constituted a
normal security to ensure full performance by the Mandatory of the
'sacred trust' ... but the specially assigned role of the Court was
even more essential, since it was to serve as the final bulwark of
protection by recourse to the Court against possible abuse or breaches
of the Mandate." (I.C.J. Reports I962, p. 336.)
In the rg6z Judgment, the Court decided explicitly the legal issue as
to survival of the compromissory clause of Article 7of the Mandate. As
an essential element of its consideration of the questions underlying that
issue, the Court treated of the inseparably related and concomitant
question of administrative supervision in the plan of the Mandate.
In the rg6z Judgment, the Court quoted from the rgso Advisory
Opinion the conclusion that :
"It cannot be admitted that the obligation to submit to super
vision has disappeared merely because the supervisory organ has
ceased to exist ... " (I.C.]. Reports I9SO, p. 136.)
lt is quoteq. by this honourable Court in its rg6z Judgment at pages
333 to 334·
The quoted passage, Mr. President, both in letter and spirit, is as
applicable to organs for administrative supervision as it is to the tribunal
endowed with the function of judicial protection of the M~ndat eor
South West Africa.r88 SOUTH WEST AFRlCA
The role of judicial protection is indispensable, as 1 have said, but
it cannot serve as a fust, or exclusive recourse, without the imposition
of an inappropriate burden upon this high tribunal. Respondent rec
ognizes the truth of this fact, but distorts its application by suggesting
that the issues in the cases at bar are too complex, detailed and cumber
some for judicial attention. We shall come to a consideration of these
arguments in Part D of our presentation.
The rcason-and the sole reason-that these issues are before this
honourable Court is precisely because of Respondent's rejection of
administrative supervision; that rejection has made impossible the
workings of the normal security contemplated in Article 22 of the (ove
nant of the League and in the Mandate itself.
The inter-dependence of Article 6 and of Article 7 1 have attempted
to describe, and will avoid further elaboration. The compromissory
clause in the second paragraph of Article 7 of the Mandate is, in the
words of the 1962 Judgment, which 1 have just quoted, "even more
essential" in a functional sense than the administrative supervision
provisions. These provisions, however, as I have said, are designed to
accomplish related ends; both are vital to the functioning and purpose of
the Mandate; they are interlocking and mutually reinforcing.
Mr. President, 1 had reached the point of stating that in their Reply
the Applicants have demonstrated that the basic principles of the man
date structure, being a combination of the concept of trust or tutelle and
of mandatum, require that the Mandatory, the trustee, or the tuteur, be
subject to accountability. This is discussed in our Reply (IV) at pages
525-540-
The Applicants contend that from the "... basic division between
control and benefit flow two consequences: there must be an accounting
concerning the exercise of the control; there must be supervision by a
public authority". This is from the Reply, at (IV) page 530.
Applicants refer in this connection, inter alia. to the normal rule of
accountability enforced upon a guardian in the United States, to guard
ianships or tutelles under the French Civil Code, to the laws of Quebec in
Canada, and to the civilcodes ofArgentina, Chile,Mexico,Panama and Peru.
Respondent's rebuttal thereto consists of mere assertion, coupled
with doubtfully relevant propositions concerning principals and agents,
master and servants, and certain types of brokers, and with the con
tention that "... in England, the home of the trust, there does not
appear to be any provision at aU for regular accounting to, or super
vision by, a public organ". That is from the Rejoinder, V, page 43·
In the Applicants' view, Respondent does not emphasize or indeed,
appears largely to ignore, that in every legal system of which the Appli
cants have been made aware, whenever control is split from benefit the
beneficiary has the right of recourse to supervision or protection by a
public authority as a protection against abuse or breach of the trust.
Respondent contends that an ". . . obligation with respect to ac
countability which is normally regarded as incidental in principle to a
fiduciary relationship, isthe duty to render account to the beneficiaries".
This is at page 43 of the Rejoinder (V). Respondent does indeed refer
to the right of recourse to supervision either by the beneficiary or on
his behalf, but the stress, if we understand correctly, is placed upon the
duty to render account to the beneficiaries as, for example, in the quota
tian to which 1 have just referred the Court. ARGUMENT OF MR. GROSS 189
Respondent's contention, thus stated, has two defects:
I. The right of a beneficiary, either on his own motion or through
that of another, to enforce a duty to account, may be a wholly inade
quate protection against abuse or breach of the trust. Without recourse
to a public authonty established to supervise the proper performance
of the trust, the more incapable a beneficiary is of conducting his own
affairs, the less meaningful would be an accounting to him alone. That,
of course, is a self-evident proposition.
As will be demonstrated ·more fully in considering the substantive
obligations of the Respondent under the Mandate, Respondent places
heavy though, in the Applicants' view, hollow, reliance upon the asserted
incapacity of the inhabitants of the territory to manage their own affa.irs.
Respondent's contention that its sole fiduciary duty is that of reporting
to the inhabitants-and there is no regular international or other super
visory authority to which Respondent reports or concedes the duty to
report-the contention that its sole fiduciary duty is to report to the
inhabitants, is incompatible with its insistence upon their very need
for tutelage, as is assertedby the Respondent. I leave aside for the time
being the question, which touches on the merits, how one could, in any
event, "account" to the inhabitants of the Territory, who are presently
denied possibilities of an effective, common voice.
2. Respondent's contention also ignores the fact that the trust at
issue here was undertaken "on behalf of the League of Nations", language
quoted from the Mandate itself.
The international organization, bence, is to be regarded as a surrogate,
whose continuing existence was held essential by the Court both in 1950
explicitly and in 1962 at least by necessary implication. In the Advisory
Opinion of 1950, the Court held, as I have already mentioned, that for
Respondent to reta.in rights under the Mandate, while denying obliga
tions, "could not be justified". In the 1962 Judgment, similarly, the
Court held that Respondent's rights over the Territory were, m the
Court's words, "mere tools" to enable it to discharge its obligations.
In other words, in the absence of a surrogate to whom Respondent
regularly reports and accounts, its rights under the Mandate cannot be
retained, and must lapse. Any other result would be irreconcilable with
the Court's holdings in 1950 and in 1962.
Notwithstanding Respondent's formai objection to the doctrine of
cy-près, and recognizing that the beneficiaries have remained the same,
nonetheless the beneficiaries themselves have no right under the Man
date to seek judicial or administrative recourse. The concept underlying
the cy.près doctrine, accordingly, may be thought to be analogous to the
situation here, that is, a new surrogate, or representative of the bene
ficiary, is essential, inasmuch as \vithout such representative the bene
ficiary, which has no "existence" in law, has no right to seek protection,
as inhabitants. .
As Judge Bustamante commented in his separate opinion appended
to the 1962 Judgment:
"The tutelary organization's right of supervision over the exe'rcise
of the Mandate is an institutional rule in the 1\Iandates System, ex
pressly provided for by Article 22 of the Covenant (paragraphs 7,
8 and g). This right is not just an adjectival or procedural formality,
but an essential element on which adherence to the purposes of the190 SOUTH WEST AFRICA
system and the efficiency of its application depend. 1t should not
be forgotten that in the :1\Iandate agreements one of the parties,
the beneficiary under tutelage, has· no possibility of entering into
discussion with the other party, the Mandatory, on an equal footing,
having regard to its Jack of legal capacity. Thus, the only way of
safeguarding the rights of the people under Mandate is to entrust
the supervision of the Mandatory's acts to 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 world assembled
in an association." (I.C.]. Reports I962, p. 358.)
This ·honourable Court has had occasion to consider in sorne detail
the nature of the requirements essential to ''the maintenance of effec
tive international supervision of the administration of the Mandated
Territory".
The matter arase for discussion in connection with the request of the
General Assembly to this honourable Court to give an advisory opinion
on the question whether it was consistent with the Advisory opinion of
rgso for the Committee on South West Africa to grant oral hearings to
petitioners on matters relating to the Territory of South West Africa.
As the Court noted, in its opinion in 1956, oral hearings had not been
granted to petitioners by the Permanent Mandates Commission at any
time during the regime of the League of Nations. The right of petition
was introduced to the mandates system by the Council of the League of
Nations on 31 January 1923, and certain rules relating thereto were
prescribed. This was, as the Court commented in the 1956 Advisory
Opinion, "an innovation designed to render the supervisory function
of the Council more effective".
In response to a suggestion that the grant of oral hearings by the
Committee on South West Africa to petitioners would involve an excess
in the degree of supervision to be exercised by the General Assembly,
and that the General Assembly should be restricted to measures which
had actually been applied by the League of Nations, the honourable
Court found as follows, in its 1956 Advisory Opinion:
"The Court will deal first with the suggestion that the grant of
oral hearîngs to petitioners would, in fact, add to the obligations of
the Mandatory and thus lay upon it a heavier burden than that it
was subject to under the Mandate Systems. The Court is unable to
accept this suggestion. The Committee on South West Africa at
present receives petitions from the inhabitants of the Mandated
Territory and proceeds to examine them without the benefit of the
comments of the 11-1andatoryor of the assistance of its accredited
representative during the course of the examination. In many cases.
the material available to the Committee from the petitions or from
other sources may be su:fficient to enable the Committee to form
an opinion on the merits of the petitions. In other cases the Com
mittee may not be able to come to a decision on the material avait
able to it. If the Committee cannat have recourse to any further
information for the purpose of testing whether a petition is or is
not weil founded, it may lead in certain cases to acceptance of
statements in the petitions without further test. Oral hearings in
such cases might enable the Committee to submit its advice to the
General Assem~ Iith greater confidence. If, as the result of the ARGU!>1EXT OF MR. GROSS
grant of oral hearings to petitioners in certain cases, the Committee
is put in a better position to judge the merits of petitions, this
cannot be presumed to add to the burden of the Mandatory. It is
in the interest of the Mandatory, as weil as of the proper working
of the Mandates System, that the exercise of supervision by the
General Assembly should be based upon material which has been
tested as far as possible, rather than upon material which has not
been subjected to proper scrutiny either by or on behalf of the
Mandatory, or by the Committee itself." (I.C.j. Reports I956, p. JO.)
I would remark, Mr. President, with your permission, and parenthet
ically, that when in a later phase of these proceedings we come to a dis
cussion of the matter of evidence which has been brought into the record
by the Applicants, based upon petitioners appearing before the United
Nations, such evidence is sought to be impeached or discredited by the
Respondent on the ground that it is erroneous, malicious, ill-informed,
unverifi.ed, and on other similar bases of criticism. This is a parenthetical
remark, because it is relevant here in respect of the fact which I believe
the context now justifies-and that is, the nature of the supervisory
system and which is brought forth clearly in the rg56 Opinion, specifically
in reference to the matter of hearing petitioners. lt has, of course, much
broader implications, as weil, with respect to the nature, function, and
role of administrative supervision as a whole.
In the rg56 Opinion, the honourable Court proceeded to interpret the
statement in the 1950 Advisory Opinion, in which the Court had held
in 1950 that "the degree of supervision to be exercised by the General
Assembly should not therefore exceed that which applied under the
Mandates System". That is from the 1950 Opinion. In its interpretative
analysis of the passage just quoted from the rgso Opinion, this honour
able Court rejected the suggestion that the 1950 Opinion passage should
be interpreted in a manner to restrict the activity of the General Assembly
to measures which had actually been applied by the League of Nations.
The Court concluded that such a suggestion did not accurately reflect
the intention of the Court in rgso, and that such a restriction was not
justifi.ed on a basis of any provision in the Covenant of the League, nor
the Mandate for South West Africa, nor the Charter of the United
Nations. The Court is respectfully referred to the 1956 Opinion, at
page 31.
Among the considerations adduced by this honourable Court in sup
port of its conclusion, which I have just described, the following passage
from the 1956 Opinion is relevant:
"The Court notes that, under the compulsion of practical consider
ations arising out of the lack of co-operation by the Mandatory, the
Committee on South West Africa 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
Mandatory had refused to transmit to the General Assembly peti
tions by ttc inhabitants of the Territory, thus rendering inoperative
provisions in the Rules concerning petitions and directly affecting
the ability of the General Assembly to exercise an effective super
vision. This Rule enabled the Committee on South West Africa to
receive and deal with petitions notwithstanding that they had not
been transmitted by the Mandatory and involved a departure in192 SOUTH WEST AFRICA
thls respect from the procedure prescribed by the Council of the
League.
The particular question which has been submitted to the Court
arose out of a situation in which the Mandatory bas maintained
its refusai to assist in giving effect to the OpinioIIoJuly 1950
and to co-operate with the United Nations by the submission of
reports, and by the transmission of petitions in conformity with
the procedure of the Mandates System. Thls sort of situation was
provided for by the statement in the Court's Opinion of 1950 that
the degree of supervision to be exercised by the General Assembly
'should conform as far as possible to the procedure followed in this
respect by the Council of the League of Nations'." (I.C.j. Reports
I956,pp. 31-32.)
Mr. President, 1 have cited these passages from the 1956 Advisory
Opinion because, in the Applicants' respectful submission, they make
clear the specifie nature and import of the obligation to submit to in
ternational administrative supervision, as weil as the practical and
legal consequences which have flowed and continue to flow from Res
pondent's failure and refusai to comply with its obligations in this
respect. It also illuminates and confirms the ambit of authority vested
in the General Assembly to take measures and to adopt procedures
relevant to and essential to the proper discharge of its supervisory
power and duty. lt therefore clarifies the meaning and nature, as weil
as the scope, of the administrative supervisory authority which is a
concomitant of the final bulwark, which is judicial protection in the
event that administrative authority does not do its job. Respondent's
contention that there is no body or organ capable of exercising adminis
trative supervision accordingly would deprive the inhabitants of the
Territory of one of the prime "securities for the performance of this
Trust", in the words of the Covenant, and would leave the Mandatory
with asserted rights but without international obligation of adminis
trative accountability,and would deny to the United Nations infor
mation necessary to the discharge of its obligations which, in the words
of the Court in 1962, were "laid upon the United Nations as an organized
int~rnat cimomnunity" to assure the performance by the Respondent
of Its sacred trust. It is such a result which, in the words of this honour
able Court, "could not be justified".
Mr. President, the essential value and integral quality of international
administrative supervision inhe plan of the Mandates has been regarded
by this honourable Court as so self-evident as to require little elabo
ration of reasons to support it. Such essentiality of administrative super
vision, indeed, has never been questioned by thls Court, or, so far as
Applicants are aware, by any leamed member of the Court. Such dif
ferences of opinion as have arisen in the Court in respect of the essential
requirement of supervision have related to only one aspect of it, to wit,
the role of judicial protection in the scheme of the Mandate. This aspect
was, of course, settledy the Judgment of this honourable Court in 1962.
The axiomatic validity of the proposition that international adminis
trative supervision is of the essence of the Mandate, and must survive
so long as the Mandate itself endures, has been expressed by this honour
able Court in divers ways. Irrespective of the form of expression, however,
the essence of the Court's rationale may be found in that passage of
the 1962 Judgment in which the Court found as follows: ARGUMENT OF MR. GROSS ~93
"The rights of the Mand.atory in relation to the mandated ter
ritory 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. The fact is [said the Court) that
each Mandate under the Mandates System constitutes a new inter
national institution, the primary, overriding purpose of which is
to promote 'the well-being and development' of the people of the
territory under Mandate." (f.C.]. Reports Ig6z, p. 329).
The Court's reference to the Mandate as a "new international institu
tion" in tum harks backto the 1950 Advisory Opinion. In that Opinion,
as has been noted, the Court employed the same phrase, and referred lo
"the international rules regulating the Mandate" which, the Court said,
"constituted an international status for the Territory". That is quoted
from page 132 of the 1950 Advisory Opinion. ·
Indeed; l\lrPresident, it was in this very context, on the basis of
its analysis of the nature and purposes of the mandates system, that
the Court characterized Respondent's contention that the Mandate has
lapsed, including provisions for administrative supervision, because the
League ha.Sceased to exist-and I quote from the 1950 Opinion-as
"based on a rnisconception of the legal situation created by Article 22
of the Covenant and by the Mandate itself": at page 132.
Respondent, notwithstanding the Court's Opinion and rationale,
nonetheless now again repeats the same contention. It is to be noted
that Respondent's "new facts" contention, which relates solely to events
occurring at the period of the League's dissolution, is wholly irrelevant
to the Court's holding with respect to the legal situation created by the
Covenant and by the Mandate ïtself.
The Court in 1950, moreover, found additional confirmation of "the
essentially international character of the functions which had been
entrusted" to Respondent from the very fact-
"... that by Article 22 of the Covenant and Article 6 of the Man
date the exercise of these functions was subjected to the supervision
oftheCouncilof the League of Nations ... ". (I.C.J. Reports I950,
p. 133·)
There ~ousl carcely be clearer evidence than this that international
supervision was indeed of the essence of the Mandate, and that the
nature and purpose of the mandates system make incredible Respon
dent's contention that when it assumed the Mandate it was not consent
ing to supervision as such, but. merely to supervision by a specifie
organ, to wit, the Council of the League of Nations.
So limited or circumscribed an undertaking would have been irrecon
cilable with the very nature of the institution; it would have treated
the rights as ends in themselves rather than as "mere tools given to
enable Respondent to fulfil its obligations", in the words of the 1962
Judgment. ·
It was, moreover, in the context of the Court's reference to the "essen
tially international character" of Resr.ondent's functions with regard
to the Mandate that the Court found: 'To retain the rights derived from
the Mandate and to deny the obligations thereunder could not be jus
tified."
Mr. President, the Applicants submit that stress clearly and properly 194 SOUTH WEST AFRICA
belongs on the word "j ustified", inasmuch as the retenti on of rights
while denying obligations cannat be "justified", either as a contention
or as a consequence. Respondent attributes a limited significance to the
quoted excerpt, insisting that the Court must have meant no more, and
I quote from the Rejoinder-
"than that if the Mandate has lapsed, Respondent cannat rely on
the Mandate for authority to administer the Territory while denying
the Mandate obligations". (V, p. 83.)
So strained a construction of the Court's language is untenable and,
indeed, is the exact reverse of the obvious intent of the language used
by the Court. The Court was not referring to the basis on which Respon
dent claimed rights over the Territory; the Court was speaking of the
source of Respondent's authority over the Territory, and found that
"the authority which the Union Govemment exercises over the Terri
tory is based on the Mandate"-this is at page 133 of the I950 Adv~·sory
Opinion.
Furthermore, the Court did not speak of Respondent's claim to rights
under the Mandate, but of its retention of rights thereunder. The Court
must have assumed, as it was right to assume, that Respondent does
not daim and, so far as the Applicants are advised, never has claimed
at !east, so far as we are aware, sinc1920 in any event, that Respondent
has any rights over the Territory except on the basis of the Mandate.
Respondent's purported interpretation of the Court's finding appears to
be based upon an insinuation to the contrary, although phrased in
contingent terms.
In its written pleadings Respondent contends that questions such as
whether, if the Mandate has lapsed, Respondent would have to rely
upon sorne basis other than the Mandate as such for rights over the
Territory and, if so, what that basis would be, are questions which, in
Respondent's words, "do not ... fall to be considered for the purposes
of the present case"-this is from the Counter-Memorial, II, p. 173.
In view of the fact that this honourable Court has twice held that
the Mandate as a whole is stiU in force, the questions referred to by
Respondent are indeed redundant to the purposes of the present case,
and they are not raised as an issue in these proceedings. It is, however,
difficult to perceive by what measure of logic such questions would at
the same time "fall to be considered" for the purpose of interpreting
the Court's finding-a finding which is, on its face, significant to the
Court's evaluation of the "legal situation created by Article 22 of the
Covenant and by the Mandate itself".
Any lingering doubt concerning the true meaning of the Court's
statement that retaining rights under the Mandate while denying obli
gations could not be justified,must be set to rest, in our respectful sub
mission, by this honourable Court's treatment of the same subject in
1962.
The Court in 1962 quoted from the 1950 Opinion the passage under
discussion, and did so in a context in which the Court was considering
contentions similar to those which Respondent had advanced in 1950.
The contentions in question related to the asserted extinction of "obli
gations relating to administrative supervision by the League and sub
mission to the Permanent Court of International Justice", in the Court's
words-this is from the 1962 Judgment, at page 333· The Court in this ARGU~ENT OF MR. GROSS 195
context referred also to Respondent's further argument, and I quote
again from the Court's Judgment, the argument that-
"the casualties arising from the demise of the League of Nations
are not therefore confined to the provisions relating to supervision
by the League over the Mandate but include Article 7 ... ".
It is precisely in this context that the Court quoted the 1950 passage
which ends with the words "could not be justified".
Immediately following its quotation from the rgso Advisory Opinion,
the honourable Court went on to refer to the analysis in the 1950 Opi
nion of the two kinds of international obligations assumed by Respon
dent under the Mandate, and then the rg62 Judgment quoted from the
1950 Opinion a key passage which defined the nature and purpose of
the mandates system in the following words:
"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 this system, they considered that the effective performance
of the sacred trust of civilization by the mandatory Powers re
quired that the administration of mandated territories should be
subject to international supervision ... "
This is quoted by the honourable Cvurt from the 1950 Opinion, and is
quoted in the rg62 Judgment at page 333.
And finally, Mr. President, this Court stated its own conclusions im
mediately following the passage just quoted from the rgso Opinion in
the following words :
"The findings 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 the Mandate." (l.C.].
Reports Ig62, p. 334.)
In short, Mr. President and honourable Members of the Court, to
accept Respondent's contention, of the lapse of its obligation to submit
to international supervision would be to exclude the very essence of the
Mandate.
The Court's reasoning is unassailed and, indeed, unassailable that
international administrative supervision is essential to the mandates
system because it is part of the international function of administration
which Respondent assumed with the Mandate. In the absence of such
accountability, Respondent's function of administration would cease to
be international. For Respondent to exercise the powers and preroga
tives of the Mandatory's position, and to deny the obligations which
are concomitant with, and inseparably related to, such powers, is to
take advantage of an international function of administration for the
purpose of occupying the Territory, while denying the very international
nature of the position on which its occupation of the Territory is based.
Mr. President, with your permission, I take the liberty of repeating
an excerpt from my statement, made before this honourable Court
during the Oral Proceedings in rg62. Referring to the rgso Advisory
Opinion, I ventured the following comment:
"With respect both to the machinery for implementation and
substantive rights and obligations, the Court {at pages 132-133 of196 SOUTH WEST AFRICA
the 1950 Advisory Opinion) referred to the 'international rules re
gulatmg the :Mandate' which 'constituted <an international status
tor the Territory'. The functions entrusted to the Mandatory pos
sessed an 'essentially internationalcharacter', said the Court, as
appear particularly from the fact that by Article 22 of the Cove
nant, and Article 6 of the Mandate, the exercise of these furictions
was subjected to the supervision of the Council of the League of
Nations. ,This fact of subjection is whatthe Court in rgso took as
showing the essentially international character of the Mandate in
stitution. Respondent, as we shall see,1 believe distorts the mean
ing of this by assuming or contending that this sentence in the
Court's opinion in effect means that it was only the Council of the
League that was entitled to supervision. ·
It is to be noted that the Court, by this language (at page 133),
made clear that- the functions, as they are called, comprise both
the international machinery for implementation and the substan
tive rights and unilateral obligations of the Mandatory. If this
were not so, the Court's reference to Articl22 would be meaning
Iess, since it contains both sides of the equation." (Oral proceedings,
r6 Oct. rg62, morning.)
In our ~espect submulssion, it was on major premises involving this
type of consideration that the Court in rgso based its findings that "to
retain the rights derived from the Mandate and to deny the obligations
thereundercould not be justified" (/.C.f. Reporr950, p. 133)and that:
"lt cannot be admitted that the obligation to submit to super
vision has disappeared merely because the supervisory organ has
ceased to exist, when the United Nations has another international
organ performing similar, though not identical, supervisory func
tions." (Ibid., p. 136.)
SimiJarJy, itseems clear that the same premise might well have under
lain this honourable Court's Judgment in rg62, at page 338 of the 1962
Judgment, that the right of Members of the League to invoke· judicial
protection, described at page 344 of the Judgment as "an essential part
of the Mandate itself and inseparable from its exercise", that such right
to invoke judicial protection continues to exist for so long as the Res
pondent holds on to the right to administer the Territory under the
Mandate.
The results contended for by Respondent cannot be admitted or
justified, so Ion9.as it is exercising "an international function of adminis
tration" under 'an international institution",with "international rules
regitlating the Mandate, constituting an international status for the
Territory ... " (I.C.f. Reporrgso, p. r32). AUthese passages are quoted
from judgments of this honourable Court; so long as Respondent is
exe~cis sicngrights, under such an institution, the results for which
it contends cannot be .admitted or justified.
"The essentially international character of the functions which had
been entrusted to .the Union of South Africa", as stated in the Advisory
Opinion of rgso, flowed from this Mandate, which "is an international
instrument of an institutional character", "a special type of instrument
composite in nature and in.stituting a novel international régime", as
described at pages 331 and 332 of the Judgment of 2I December r962.
Such international character of the Territory Respondent cannot be ARGUMENT OF MR•.GROSS I97
heard to deny, so long as it exercises and retains.rights .over the. Terri
tory. Such an international character is independent of its consent.
The_only right, title, and interest conveyed to Respondent in Igzo. were
the· administrative powers essential to proper exercise of a tutelage of
an international character. Occupation of an international territory,
while professing to be exercising an international right of administration,
and yet denying the international obligations necessary to keep, the
territory status international, "cannot be justified".
· Respondent indeed concedes the validity of this proposition in its
written pleadings: · ,'
"As regards history, it seems clear that the various proposais
which preceded the Mandate System as actually agreed upon, aU
proceeded from the basic princip le of 'no annexations', to which
effect was to be given by sorne form or another of internationaliza
tion of the government or administration of the colonies and ter
ritories in question. When proposais came-to be made for the estab
lishment of a League of Nations, the League was seen as the medium
through which such intemationalization could be carried into ef
fect, the various proposers differing, however, as to the exact nature
and degree _ofthe authority to be accorded to the League in this
.. 'réspect." (II, p. I6g.) · :
The-"foregoing passage occurs immediately following a paragrà.ph on
the same page of the Counter-Memorial, which reads as follows:
''Analysis of the history and wording of Article 22·of the Cave
nant fully bears out, in Respondent's submission, that the feature
of report and accountability to the League was intended to be an
integral portion of the Mandate System, as will appear from the
succeeding paragraphs." (Ibid.) . ·
Respondent's concession that ''the League was seen as the ·medium
through which such internationalization c_ouldbe carried into effect",
confirms that the principle of ''no annexations" and internationalizatio,n
were the objective and that the Leag·Jlewas the then-existing means
"through which such intern"ationalization could be carried into effect".
Mr. President, this is but another way of saying that 'the design of
interna_.tionalsupervision embodied in the Covenant and in the Mandate,
and assumed by Respondent thereunder, was a basic obligation o~ gene
ral and objective character, rather than a mere undertaking to submit
to the supervision of a specifie supervisory organ, which Respondent
asserted in I950, asserted in I962, asserts again today .
. Such consideration, in turn, underlies the statement in the Ig62
Judgment that the sacred trust was, in the Court's.words "... laid tipon
the League as an organized international community ... ". ,
·The significance of the phrase "organized international commuùity".
eludes, or seems to elude, Respondent, which confines itself largely; .in.
our view, to a dissection and a shredding of the concept, in its written
pleadings. Indeed, Responder\.t goes so far asto attributé to the Court's
language, in the context, an intention.merely, and I quote.from the
Rejoinder, "to describe the fea:ture distinguishing the Le;1gue from its
Members", and, consequently, as meaning nothing more thari. if the
Court had used the phrasé, "laid· upon .the League as an international
organizatio"n" ''rather than "as an organized international community".
(This may be found in V, p. 38.)rg8 SOUTH WEST AFRICA
In this connection, it is relevant to note that, in a quite different
context, but relevant to this point, President Winiarsk.i has referred to:
"... the fundamental interests of the organized internationalcorn
munit y in the realization of international peace and security".
1 have taken the liberty of quoting from the learned President's dis
senting opinion, appended to the rg6z Judgment (I.C.J.Reports r962,
p. 456).
Moreover, Judge Bustamante, in his separate opinion appended to
the rg6z Judgment, in one context described the League of Nations
as "personifying the international community", and, in another context,
stated that the League "represents the international community".
(I.C.J. ReportsI~2, pp. 335 and 356, respectively.)
And in yet another phase of his discussion of the matter, the learned
judge referred to the "tutelary organization which ... personifies the
interest of the States of the world assembled in an association". (Ibid.,
p. 358.)
To like effect, Mr. President, is the analysis of the French authority,
Fauchille:
"... le mandataire s'impose des obligations, pour une mission de
civilisation vis-à-vis de la communauté internationale... ". (Traité
de Droit International Public,r925, cited in IV, p. 536.)
There seems little room for doubt, Mr. President, that the Court's
reference to the fact that the sacred trust was "laid upon the League as
an organized international community'' signifi.ed that the League was
acting not by virtue of procedures or a structure peculiar to itself, but
as a surrogate carrying out an essential function under a trust, and that
the performance of such an obligation was recognized to be essential so
long as the trust survived.
Respondent, in its \vritten pleadings, questions the relevance of the
concept of the organized international community to the legal issue posed
by retention by Respondent of rights under the Mandate, while denying
international obligations of supervision thereunder.
Respondent queries whether this proposition is advanced indepen
dently of the Applicants' " 'organized international community' theory",
as it describes the concept, "or whether it merely states a result arrived
at via the application of that theory"-1 quote from the Respondent's
queries in the Rejoinder, V, at page 72.
Mr. President, in our respectful view, the distinction thus sought to
be drawn by Respondent involves a false dichotomy. The character of
the United Nations as an organized international community is relevant
toits role as a tutelary. TheOr~aniza striosin that capacity, as did
the League of Nations before It, not as a mere aggregation of States
which happen to be parties to a treaty, then called the Covenant of the
League, now the Charter of the United Nations. The tutelary role of the
Organization is institutional,not mere!y contractual; it embodies obli
~atio asswell as powers and functions. As this honourable Court said
m the 1950 Advisory Opinion-
"The League was not ... a 'mandator' in the sense in which this
term is used in the national law of certain States." (I.C.]. Reports
I950, p.132.) ARGUMENT OF MR. GROSS 199
Of course not, Mr. President. The orgaruzed international community
exists as a fact;t is embodied in, and personified by, the United Nations,
precise!y inthe same way as was truc of the League of Nations. It is not a
mere "theory' ',to use Respondent's phrase, concocted by the Applicants
forthe purpose of making a debater's point in this litigation, as Respon
dent's queries may be taken to imply.
The character and fonction of the United Nations relevant to the
mandates system, and in particular to the Mandate now before this
honourable Court, thus was recognized by the Court in its 1962 Judg
ment, when it said that one of the essential principles of the mandates
system consisted in-
"the recognition of 'a sacred trust of civilization' laid upon the
League as an organized international community and upon its
.M.emberStates". {J.C.j.Reports I962, p. 329.)
The conferment of such a trust upon the Lea~e was the normal
security designed to ensure, on behalf of the civilized community of
nations-"civilization" is the single word used in the Covenant-that
the Mandatories, including the Respondent, would exercise their rights
in relationto the mandated territories and the inhabitants in the manner
and for the only purpose for which such rights were entrusted to Respon
dent, which was that they were to be used as ''mere tools" to enable
Respondent to fulfi.lits obligations, as this Court said in rg62.
Mr. President, but for the existence of an "organized international
community", there would not have been, nor would there now exist, a
Mandate for South West Africa. Respondent's occupation and adminis
tration of the Territory is attributable solely to the fact that the civilized
nations of the world, or most of them, formed an association following
the First World \Var to serve the purposes of the organized international
community and that Respondent was a Member thereof. Had it not
been such a Member, the Mandate would not have been conferred upon
it, and could not have been conferred upon it, on behalf of that com
munity as then embodied in the League.
Similarly, if neither the United Nations bad existed at the time of
the League's dissolution, nor any other international organ with capacity
to supervise the Mandate, either a new supervisory organ would have
bad to be created for this purpose, or Respondcnt's retention of rights
under the Mandate would have terminated. Such a problem, however,
did not and does not arise, by virtue of the fact that in the United
Nations, as an organized international community, there exists an
agency endowed with the capacity to perform "similar, though not iden
tical, supervisory fonctions" to those performed by the Council of the
League, in the words of the rgso Opinion, at page 136.
In the zg6z Judgment this honourable Court gave weight to the fact,
and made clear, that there was no break in the continuity between the
League and the United Nations. The Court found in the rg6z Judgment
as follows:
"It is clear from the foregoing account that there was a unani
mous agreement among all the Member States present at the Assem
bly meeting [this refers to the meeting of r8 April 1946] that the
Mandates should be continued to be exercised in accordance with
the obligations therein defined although the dissolution of the
League, in the words of the representative of South Africa at the200 SOUTH WEST AFRICA
meeting, 'will necessarily preclude complete compliance with the
letter of the Mandate', i.e. notwithstanding the fact that sorne
organs of the League like the Council and t.he Permanent Mandates
Commission would be nùssing. In other words the common under
standing of the Member States in the Assembly-including the
Mandatory Powers-in passing the said resolution, was to continue
the Mandates, however imperfect the whole system would be after
the League's dissolution, and as muchas it.would be operable, until
o_ther arrangements were agreed upon by the Mandatory Powers
with the United Nations concerrung their respective Mandates.
Manifestly, this continuance of obligations under the Mandate could
not begin to opera te until the day after the dissolution of the League
of Nations and hencè the literai objections derived from the words
'another Member of the League of Nations' are not meaningful,
since the resolution of r8 April rg46 was adopted precisely with a
view to averting them and continhlng ·the Mandate as a treaty
between the Mandatory and the Members of the League of Nations."
(I.C.J. Reports r962, p.341.)
It is to be noted that the quoted passage from the Ig6z Judgment
follows consideration by the Court of the events and transactions which
took place dt!-;ringthe period of the dissolution of thj:!League and the
commencement of operations of the United Nations. In that context
the Court's consideration of such events and transactions included
references to acts and statements of the Mandatory Powers at that time,
including that of Belgium, which expressed its intention to "remain
fully alive to ali the obligations devolving on members of the United
Nations under Article Soof the Charter''. Moreover, the Court reached the
conclusions embodied in the quoted passage-that is, the passage 1 have
just quoted from the Court's Judgment-in the light of full discussion
by the Parties during the rg6z proceedings of Respondent's "new facts"
contentions.
Respondent re-formulates the Applicants' contention that obligations
of international accountability must survive, so long as Respondent
retains rights under the Mandate, and does soin a manner which enables
it to say that the Applicants' contentions as so formulated are guilty of
two "fatal defects", in the Respondent's words. Respondent describes
these "fatal defects" in the re-formulated contention of the Applicants
as follows. The Applicants' proposition, says Respondent, could only be
valid on introduction of an "additional premise, viz., that the Mandate
is still in existence"; and they say secondly:
"no solution is offered to the problem of the supervisory body to
which the obligation of accountability would relate after disappear
ance of the only supervisory bodies mentioned in the formulation of
the obligation in the mandate documents". (V, p. 73-)
With respect to the· first asserted fatal defect, that an additional
prenùse is necessary that the Mandate is still in existence, the Applicants
accept, as the law of the case, that the Mandate is still in existence. If
the Court did not decide that, it decided nothing. This Court has found
and reaffinned this proposition in one Advisory Opinion, confirmed it in
two Opinions interpretative of the first, and held m the 1962 Judgment,
that the Mandate as a whole is still in effect.
The Applicants accordingly do not fully appreciate the significance ARGUMENT OF MR. GROSS 201
of Respondent's criticism .or comment that "Applicants never advance
any argument in support of the proposition that the Mandate still exists:
they merely rest on the Court's decision in that regard". I quote from
the Rejoinder, V,page 74, footnote 3·Apart from the fact that the Appli
cants would.be quite content to rest upon such authority, the burden of
the Applicants' argument on this phase of the cases at bar is directed at
establishing the proposition that the Mandate's existence is confirrned
by the very fact of Respondent's continued retention of its rights in
the Territory, rights granted to it as mere tools given to enable it to
fulfi.lits obligations. Sorne signifi.cance may be attributableto the fact
that Respondent appears not to recognize this as an argument.
Respondent's asserted second fatal defect in the Applicants' conten
tion that obligations of international accountability must survive so
long as Respondent retains rights under the Mandate, is that "no solu
tion isoffered" by the Applicants, or so it is said, "to the problem ofthe
supervisory body to which the obligation of accountability would relate
after disappearance of the only supervisory bodies mentioned in the
formulation of the obligations in the Mandate documents".
Respondent's asserted second fatal defect which I have just quoted
rests on Respondent's argument that the problem of the supervisory
body has never been worked out by this honourable Court. The so-cilled
problem was indeed worked out and solved in the Advisory Opinions of
1950, 1955 and 1956. Further comment appears unnecessary, Mr. Pres
ident, except to note that Respondent's very formulation of the problem
in these terms reflects its own erroneous major premise of a limited
original specifie supervisory body obligation which of course it advances.
at sorne length in its written pleadings.
Respondent's premise that international supervision under the Man-·
date was lashed irretrievably "to a specifieorgan of a specifieorganiza-.
tion of certain of the nations of the world"-I have quoted from the
Counter-Memorial, Il, at page 119-such a premise does not stand
analy?is, in the Applicants' respedful submission. Respondent argues
that:
"The 'supervisory functions of the League' spoken of by com
mentators was a concept in essence derived from the obligation,
imposed upon the Mandatories by the above provisions, to report
with reference to the respective territories and to the measures
taken to carry out the substantive obligations." (Il, p. n8.)
Respondent's argument is fallacious. Supervision is not derived from
an obligation to report, as this statement I have just quoted seems to
say (perhaps I misread it). An obligation to report is the means by which
supervision is given effect. The obligation to report derives from the
principle of accountability, not the other way round.
Moreover, "accountabilitv" includes, but it is not limited to, mere
reporting to an administrative organ. It includes the submission of
disputes to judicial process, as this Court has held, and it includes the
obligation to obtain consent of the supervisory organ to modifications
of the terms of the Mandate.
Without such accountability, as 1 have said, the Territory would not
be an international institution, or, indeed, it would not be an institution
at ail. It would not be an international mandate nor would it be a man
date, in any sense, since its "essence would have been excluded"; in the202 SOUTH WEST AFRICA
words of this Court in 1962. A mandate which is a cover for annexation
is a fraud. It has nothing in common with the purposes of the authors of
the mandates system.
Respondent's erroneous formulation of the Applicants' contention
regarding survival of the obligations under the Mandate so long as the
Mandate survives, leads Repondent into the fallacy of the petitio prù~
cipii.
Thus, Respondent argues, in italics, that-
"The only basis upon which it can possibly be said that the
existence of the Mandate is not open to question is that of accepting
that its sacred trust provisions can stand by themselves, without
accountability." (V,p. 74.)
Respondent's argument, just quoted, rests upon three premises,
namely (1) that the Mandate has lapsed; (z) that the provisions of the
Mandate are divisible and must be separately justified; and (3) that the
provisions of accountability are, in fact, no longer operative, in fact or
in law.
Each of these propositions is untenable, and is irreconcilable with the
decisions of this honourable Court, which I venture to describe as the
law of the case.
The reasoning of the Advisory Opinion of 1950 is clear. The Court
proceeds from the premise that the Mandate is in existence, inasmuch as
no other premise would accord with the facts and with the elementary
requirements of justice. The sacred trust provisions conferred rights upon
the inhabitants of the Territory. Such rights require supervision for
their protection. Therefore supervision is essential. The Court's chain
of reasoning results in a quod erat demonstrandum.
Neither the Court, nor the Applicants-as Respondent's re-formulation
implies-proceeds from the premise that because the sacred trust provi
sions survived, the Mandate must survive, and accountability, which is
of the essence, must also be deemed to have survived.
This isnot the meaning or intent of the formulation of the Applicants
nor, it is respectfully submitted, the logic of the Court. Respondent
erects and destroys a straw man by its argument, which 1 quote from
the Rejoinder:
"lt is quite obvious that one cannat say that administration of a
certain Territory must be subject to accountability merely because
accountability is an essential element of a Mandate. The statement
would only make sense upon adding or presupposing that the Man
date which requires the accountability, applies to the Territory and
its administration."
1have quoted from V, at page 7+ In Applicants' respectful submission,
Mr. President, there is no clearer demonstration, anywhere in these
written pleadings, of the chasm between the arguments of the Parties to
these proceedings. The Applicants, of course, presuppose that the Man
date "applies to the Territory"; that is their major premise.
On the basis thereof, the Applicants conclude, just as this honourable
Court bas held, with respect, that, so long as Respondent asserts rights
under the Mandate, it cannot be heard to deny its obligations thereunder.
Respondent, to the contrary, contends that:
"The administration and possession of a territory are by them- ARGUMENT OF MR. GROSS 203
selves essentially neutral facts with reference to the question whether
'international accountability' in respect thereof is undertaken,
acknowledged or represented ... Administration and possession of
a territory [says the Respondent] are by themselves even more
patently and obviously unrelated to any specifie supervisory author
ity than to a vague idea of 'international accountability' ."(V, p. 78.)
In fact, Mr. President, the Applicants perceive no meaningful distinc
tion between administration and possession without international ac
countability, on the one band, and annexation, on the other. The fact
that the administrator consults his conscience in preference to a super
visory organ, does not alter the practical, common-sense, realities of the
situation. .
In its written pleadings, the Respondent makes clear, by its own
admission, we believe, the hollowness of its contention that (I have just
quoted, and repeat):
"Administration and possession of a territory are by themselves
even more patently and obviously unrelated to any specifie super
visory authority than to a vague idea of 'international accounta
bility' ."
No comment appears necessary concerning Respondent's characteri
zation of international accountability as a "vague idea", in the light of
all this honourable Court bas had to say with regard to the nature and
essentiality of this obligation, in the plan of the mandates system.
Beyond this, however, the organic relationship between administra
tion of the Territory of South West Africa and the function of inter
national supervision is shawn, inter alia, by Respondent's own avowal,
in which it says:
"In pursuance of the policy of administering the Territory 'in the
spirit of the Mandate', Respondent bas de facto been acting as if
ali obligations relevant for present purposes were still in force, in
cluding [voluntary] abstention from unilateral incorporation."
This is quoted from the Rejoinder, VI, pages 447-448-"voluntary ab
stention from unilateral incorporation" which, with respect, the Appli
cants read as a synonym for "annexation".
The Applicants will have more to say about this in the context of their
consideration of Respondent's misconceived formulation of the nature
of the Applicants' submissions with respect to the legal consequences of
their actions, "coupled with their intent", in the words of the ninth
submission of the Applicants, to modify the terms of the Mandate without
the consent of the United Nations.
Throughout the written pleadings, Mr. President, there is a recurrent
theme, regarded by Respondent as relevant to numerous contexts, of
the measure, the asserted measure, of its obligations under Article 2,
paragraph 2, of the Mandate, the sacred trust obligation, as measured
by subjective motivation, good or bad faith, purpose of action taken,
and like subjective concepts of motivation, intent, and mens rea.
In their written pleadings, the Applicants have sought to make clear
that the Applicants, in no sense, rest upon, or request this honourable
Court to apply, subjective concepts of motivation or intent. The Appli
cants use, and we submit, appropriately use, the concept of "intent"
in a legal sense but not as a subjective motivation, not as mens rea, not SOUTH WEST AFRICA
to determine whether Respondent has a proper or lofty or illicit purpose
.in its actions, but in the lawyer's sense of the use of the word,.\vhich
applies the test of an objective determination, judicial or administrative,
in. respect ofthe conduct of groups, individuals, or governments, and
which rests upon the universally accepted principle that an individual,
or.a.Qentity, is presumed to intend the foreseeable and necessary con
sequences of.his, or its, actions ..And when the Applicants refer to the
"intent" of~esponde netw,ord is used, and intended to be used, "only
in that sense. We will have more to say about this later but it is menti(nied
here, with respect, Mr. President, because it does appear that the appli
cati of the subjective test, of motivation appears to be relevant to the
quotation from the Rejoinder, to which 1 have referred. · ·
In pursuance of the policy of administering the Territory in the spirit
of the Mandate, Respondent has de facto been acting as ifali obligations
relevant for present purposes wcre still in force, including "voluntary
abstention from unilateral incorporation". The inference appears to be
that because Respondent is weil motivated, and because its ·purpose is
honest or of good faith, that ail requirements of the mandate principle
are satisfi.ed.
{Public hearing of 23 March I965}
Mr. President and. Members of the honourable Court, at the close of
the previous session 1 bad quoted. from the Respondent's Rejoinder, a
quotation to the effect that-
"... in pursuance of the policy of administering the Territory 'in
the spirit of the Mandate', Respondent has de facto been ·acting as
if ali obligations relevant for present purposes were still in force,
including [voluntary] abstention from unilateral incorporation".
(Rejoinder, VI, p. 397.)
The Applicants will, as I have said, have more to say about this in
the context of their consideration of Respondent's misconceived for
mulation of the nature of the Applicants' submission with regard to the
legal consequences of Respondent's actions, coupled with intent, in
the words of our submission, to modify the terms of the Mandate with
out the consent of the United Nations. This is Submission 9 in which
we use the phrase "cou pied with intent".
As has been stated, and as will be further demonstrated, references
by the Applicants to Respondent's :'intent" or purpose do not refer to
a subjective motivation of good or bad faith, but to an objectively de
terminable inference, which may be drawn from conduct, on the basis
ofthe universally applicable principle that a person or an entity is pre
sumed to intend the foreseeable and necessary consequences of his or
its actions.
The point relevant to the present context, however, isthe signi.ficance
properly to be attributed to Respondent's avowal that its so-called
"abstention from unilateral incorporation" is a consequence, not of
its international obligations, but of a self-imposed restraint which, by
the same reasoning, could be lifted by its own wilL
Accordingly, Respondent's argument is irreconcilable with the hold
ing of this honourable Court in the 1950 Advisory Opinion, that:
"The terms of this Mandate, as weil as the provisions of Article
22 of the Covenant and the principles embodied therein, show that ARGUMENT OF MR. GR,OSS 205
the creation of this new international institution ·did not involve
any cession of territory or transfer of sovereignty to the Union of
South Africa. The Union Government was to exercise an interna
tional function of administration on behalf of the League ... "
(l.C.]. Reports I950, p.132.)
M.r. President, it is merely to put the same point in consensual terms
to say that so long as Respondent continues to administer the Territory
on the basis of rights conferred by the Mandate, Respondent, ·by that
very fact, is manifesting a continuing consent to international super
vision. And, inasmuch as there is in existence an international organ,
to wit, the United Nations, which is qualified to exercise supervision
over the Mandate, it·must be presumed that Respondent's retention of
rights over the Territory is consistent with no conclusion other than
that it is manifesting a continuing consent to subinit to the supervisory
authority of the United Nations: . .
Respondent's disclaimer of any such intention· imports into the pro
ceedings a legally irrelevant consideration and one which, in any event,
is incapable of factual demonstration one way or ariother, to wit, de
monstration of the subjective attitudes· of persons who,. from time to
time, may constitute Respondent's Government. At the most, Respon
dent's denial of a subjective-intention to submit to international super
vision proves merely that any such officiais, if any· there be, would
prefer to have it both ways, that is, to treat the Territory as if it were
annexed, while claiming to act "in the spirit" of a mutilated Mandate.
It is manifest here again that the Parties proceed from contrasting
points of departure. · ' 1
Respondent's starting point, namely that its original undertaking was
limited to an obligation "to report and account to a specifie organ of
a specifie organization of certain of the nations of the world" (Il, p. ng),
leads it to demonstrably false conclusions . ·
Mr. President, neither the composition of the League of Nations, nor
the Council of the League, was fixed or static. Respondent, nonetheless,
never asserted during the life-time of the League that when the League's
original membership was altered by the addition of new members, OF
the departure of original members, that Respondent's obligations lapsed
by virtue of such changes in membership.
Respondent's contention that it contracted for a silpervisory organ
composed of only "certain nations of the world" hence is a reductio ad
absurdum of its emphasis on the contractual nature of the Mandate,
to the exclusion of its essence as an international institution regulated
by international rules.
The recitation by my colleague, Mr. Moore, in Part B of Applicants'
presentation, of the events and transactions occurring during the period
of the dissolution of the League, has demonstrated that, in fact, no
parties to the Mandate, the League, the United Nations, or the Members
of either, including Respondent itself, took action on the basis of any such
absurd premise.
As has been pointed out, Mr. President, the general expectation was
that the trusteeship system would supersede the mandates system.
Such an expectation, or hope, as it might be called, was entertained
despite Respondent's repeated assertions of its desire to annex the
Territory, although always exylicitly positing the necessity for consent
thereto on the part of the Uruted Nations.206 SOUTH WEST AFRlCA
As the Court found in the 1950 Advisory Opinion.
"By thus submitting the question of the future international
status of the Territory to the 'judgment' of the General Assem
bly as the 'competent international organ', the Union Govem
ment recognized the competence of the General Assembly in the
matter.
The General Assembly, on the other hand, affirmed its competence
by Resolution 65 (1) of December 14th, 1946."(I.C.]. Reports r950,
pp. 142-143·)
Respondent's premise of an original undertaking limited to a "specifie
organization", composed of "certain nations", leads to the equally un
tenable conclusion that at the moment of the dissolution of that Orga
nization, Respondent's right of annexation would have been perfected,
in the absence of a new undertaking, in expressis verbis, to an amendment
of the language of Article 22 of the Covenant, and of Article 6, and
paragraph 1 of Article 7, of the Mandate.
Such a conclusion, as has been demonstrated, is irreconcilable with
this honourable Court's repeated holdings in respect of the legal nature
and requirements of the mandates system itself.
The 1\lembers of the League, who adhered to the United Nations
Charter, made clear their understanding that its provisions were not
inconsistent with those of the League Covenant which, indeed, was at
that moment still in force. The basic aims and purposes, the nature and
the functions of both bodies, were entirely congruent.
The only differences between the two Organizations, and these are
irrelevant to issues in the cases at bar, lay in internai structure, and
involved discarding of the old framework, or parts thereof, which bad
been found wanting. But such functional differences did not entail any
difference in the general scope, in the basic purposes or aims, in the
functional field, of the two organized bodies. Their areas of operation
and purpose were, in fact, one and the same. They were both, in short,
the embodiment and personification of the organized international
community.
This conclusion is fortified by the fact that, at the time of the League's
dissolution and the commencement of operations of the United Nations
the preponderant majority of both Otganizations, although, of course,
not the entirety, were Members of both. The United Nations was thus
a realignment and reformulation. Legal obligations which continued to
exist at its inception, by virtue of any reasoning of which the Applicants
are aware, cannot be said to have lapsed as a result of the accession of
new Members to the United Nations.
The fact that the two Organizations, the League and the United
Nations, for a time existed side by side, representing largely the same
member States, poses no legal or logical difficulties. The League remained
in formai existence solely for the purpose of orderly liquidation, which
would assure the continuance of rights and obligations, the survival of
which was regarded as necessary and appropriate. The rights of the in
habitants of the Territory under the "sacred trust" obviously were
among these rights, in the Applicants' respectful submission, as the
Court has held and as Respondent conceded, at least alternatively and
arguendo, in the 1962 proceedings.
This honourable Court in the 1950 Opinion defined and described the ARGUMENT OF MR. GROSS 207
legal and organic relationship between the League and the United
Nations in respect of the law of the mandates system.
First, within the ambit of its general purposes and functions, the
United Nations, in fact, was the only organized body capable of per
forming an essential function under the Mandate. It was the only body
in which the international accountability of the Mandatory could be
satisfied. Renee, the power and capacity to perform the function of
international administrative supervision was reposed in the United
Nations, as a matter of the international law, created by Article 22 of
the Covenant, and the rules regulating the Mandate itself. This legal
consequence was recognized in the finding of the 1950 Opinion, that:
"It cannat be admitted that the obligation to submit to super
vision has disappeared merely because the supervisory organ has
ceased to exist, when the United Nations has another international
organ performing similar, though not identical, supervisory func
tions." (I.C.]. Reports I950, p. 136.)
Secondly, Mr. President, within the range of duties and pmvers ex
plicitly conferred upon the United Nations by Chapter XII of the
Charter, consent of the United Nations is essential in respect of trustee
ship agreements. Under the express holding of this Court in 1950, not
only by principles of objective mandate law, but also by express rec
ognition of competence by Respondent, the consent of the United Na
tions likewiseis required to any modification of the terrns of the Mandate.
Respondent, in its written pleadings, has undertaken for the second
timea dissection, by way of commentary, of the 1950 Advisory Opinion,
particularly centring upon the four "decisive reasons", as the Court
termed them, underlying the Court's holding that Respondent is under
an obligation to report to the United Nations, which is to exercise the
supervisory functions over the Mandate.
The extent to which Respondent goes in its renewed effort to render
nugatory the 1950 Opinion appears, inter aliafrom what the Applicants
conceive to be its forced construction of the Court's conclusion in the
rgso Opinion that:
"lt cannat be admitted that the obligation to submit to super
vision has disappeared merely because the supervisory organ has
ceased to exist." (Ibid., p. 136.)
Respondent interprets the quoted conclusion of the Court to mean,
and I quote Respondent's comment:
"The suggestion seems to be that, in the light of the consideration
of effectiveness already stated, the interested parties might well
(or would probably) have intended that supervision of Mandates
should be continued by this new organ. Again [says Respondent]
this is reasoning by inference relative to tacit intent." (II, p. 143.)
On the contrary, Mr. President, in the Applicants' respectful view,
the Court's conclusion patently is based upon a series of inter-related
reasons, all of which reflect objective principles of law arising from,nd
inherent in, the mandates system itself, as well as consent manifested
appropriately by Respondent and others during the relevant period.
Thus, in the 1950 Advisory Opinion, the Court's conclusion rested on
both the objective situation created by the law of the Mandate in the208 SOUTH WEST AFRICA
light of the League's dissolution, and Respondent's consent made mani
fest in that situation.
The Court explicitly found, in 1950, that:
"In declarations made to the League of Nations, as weil asto the
United Nations, the Union Government has acknowledged that its
obligations under the Mandate continued after the disappearance
of the League." (l.C.]. ReportsI950, pp. 134-135.)
Respondent's renewed effort, to render nugatory the Court's 1950
Opinion, by virtue of the "new facts" contention, has been analysed by
my colleague, Mr. Moore, in Part B of the Applicants' presentation.
The facts need not be repeated here at any length. The asserted "new
facts", again put forward to invalidate or call for reversai of the rgso
Opinion, are as follows: (r) the Chinese draft resolution, mentioned by
1\lr. Moore; (2) the proposai for a Temporary Trusteeship Committee,
likewise mentioned by him; and (3) the attitudes of States during the
period prior to the request for the 1950 Advisory Opinion. AU of these
facts were before the Court in 1962; their immateriality was noted in
the words previously quoted from the rg62 Judgrnent: "Ali important
facts were stated or referred to in the proceedings before the Court in
1950." (I.C.]. Reports I962, p. 334.)
The third so-called "new fact", that relating to views of member States
during the period preceding the 1950 Advisory Opinion, nevertheless
has implications of which special note may now be taken, with your
permission, Sir.
That there were differences of viewpoint expressed by member
States during this period is obvious. The true significance of such
differences, however, is not the same as that sought to be inferred
by Respondent.
This matter also was discussed at length during the 1962 Oral Proceed
ings. On behalf of the Applicants at that time, 1 had the honour to
address to the Court the following comments, which 1 take the liberty
of repcating, with your permission, Mr. President:
· "The fact is [I said] that in the period 1947 to 1949 strenuous
efforts were being made by United Nations Members to induce the
Respondent to follow what this Court, in the Advisory Opinion,
called-and I quote-the 'normal course indicated by the Charter'.
During this period vague, inconsistent and contradictory views
were expressed on the subject of United Nations supervision over
the unconverted Mandates ...
Of course, it was precisely because of the confused, vague and
contradictory, and often shifting, statements by Members of the
United Nations, that the Members, through the General Assembly,
requested this Court for its Advisory Opinion. And now [I said in
rg62} Respondent relies upon that very confusion and vagueness to
induce the Court to reverse its Opinion." (Oral proceedings, 16 Oct.
1962, morning.)
Mr. President, the Respondent again adverts to the same point as
one element of its re-asserted "new facts" contention.
It seems fair to say, Sir, that the confusion manifested during the
United Nations debates on this subject was, and indeed still is, reflected
by Respondent's own contentions with regard to the subject. Thus, the
Respondent again (as in r962) refers to the asserted position of 25 States ARGUMENT OF MR. GROSS 209
which, according to the Respondent, expressed the undcrstanding, and
1 quote:
"that there was outside of a Trusteeship Agreement, no obligation
to submit to supervision ... and no power of supervision on the
part of the United Nations in that respect".
Thus spoke Respondent's learned Counsel in the Oral Proceedings of
1962 (5 Oct., afternoon). ·
The United States, as this honourable Court will be aware, submitted
a written statement to the Court in connection with the 1950 advisory
proceedings.
The statement of the United States contains the following comments,
inter alia, on this subject:
"The general tenor of discussion in the General Assembly from
1946 to 1948 was that the Mandate for South West Africa continued
in existence." (P. 103 of the United States statement in 1950.)
The United 'States statement then went on to cite the views of II
l\Iembers, including two separate statements by United StatesTepresen
tatives to like effect during these years.
This United States statement proceeded, and 1 quote:
"A minority of the Assembly took the position that the Mandate
had already expired; most of these premised their conclusion by
contending that the Trusteeship System had already in fact replaced
the Mandates System since the'placing of Mandates under trusteeship
was compulsory." ·(P. 103 of the United. States written statement.)
It may be parenthetically asserted, Mr. President, that the latter view,
that is that the placing of mandates under trusteeship was compulsory,
was, of course, cxpressed by the United States prior to the dectsion by
this honourable Court in the 1950 Advisory Opinion to the contrary.
However, the 'fact remains that although the l\Iembers of the United
Nations expected that ali mandates, not otherwise disposed of would
be placed under trusteeship, there was no legal compulsion envisaged
in Article XII of the Charter that such territories be placed under trust
eeship, and in that respect of course the comments expressed to the
contrary by the memb'erStates during this period were legally untenable.
Back, however, to the main trend of the argument-the United
States written statement in 1950 goes on to say:
"South Africa at the sessions of the General Assembly in 1946-
1947 by no means cmbraccd the minority view but firmly supported
the view of the majority ... Recent developments {that is, devel
opments prior to 1950) with respect to the Union of South Africa's
administration of South West Africa and the expressions of Union
representatives indicating partial or total termination of the Man
date, although perhaps foreshadowed in 1947, first clearly appear
in 1948. [The United States written statement goes on] ... Read
beside the record of contemporary events and statements, such
belated comments are not persuasive asto the intentions and under
standings of the Union and other States when the League was
dissolved and the United Nations established." {P. 104 of the
United States written statement.)
Mr. President, it may be a reflection of the confusion then existing,
and which is still indeed harboured by the Respondent, that of the list210 SOUTH WEST AFRICA
of States cited in the United States statement as holding the view that
the Mandate responsibilities continued in existence, six of the same
States are listed by Respondent as holdi t~e view that the Respondent
had not remained under a duty to subnut to international superYision.
The Respondent, indeed, goes so far asto cali into question the views of
the United States itself on this matter, notwithstanding clear expression
of views on the part of the United States representatives to the United
Nations, including Mr. Benjamin Gerig, the representative of the United
States on the Trusteeship Council in 1947, and himself a recognized
authority on mandate and trusteeship affairs.
Oneexample, also cited in the 1962 Oral Proceedings (22Oct., morning),
at page 347, is a quotation from a statement made by Mr. Gerig on behalf
of the United States at the Fifteenth Meeting of the Trusteeship Council
in 1947 at page 505, stating as follows:
"1 am among those who always have believed that the i\landate
does continue in force, but there are others who do not take that
view."
Mr. President, it must be unique in the annals of judicial proccedings
that the very confusion, uncertainty and differences of opinion leading
to recourse to judicial process for resolution thereof, should be cited as
evidence in support of the proposition that the Court could not have
resolved the matter in the way it did bad it known of the confusion and
disagreement which occasioned judicial recourse. Moreover, the Respon
dent refuses even now to accept the validity ofthe rgso Advisory Opinion,
even though this honourable Court in 1962, as 1 have said, held that the
Mandate as a whole is still in force and that (to quote again) "ali im
portant facts were stated or referred to in the proceedings before the
Court in 1950". (I.C.J. Reports rg6z, p. 334.)
ln fact, Mr. President, as the actual history of the period makes clear,
the issue asto which Members of the United Nations were confused and
at odds was not as between international supervision over the mandated
territory and no supervision. The issue drawn, rather, was that between
supervision under the Mandate or supervision under the trusteeship
system. It was hesitancy and confusion, reflected in numerous statements
made and often shifting within the same delegation-it was hesitancy
and confusion as between these two alternatives (supervision under the
mandates system or supervision under the trusteeship system) which Ieft
matters vague for a period, and which led to the request for the 1950
Advisory Opinion. It is, accordingly, a distortion of the history of that
period, and the significance of the debates which took place at the United
Nations, to portray the admitted and obvions confusion and disagree
ments as a difference between those who supported retention by the
Respondent of rights over the Territory without supervision. as dis
tinguished from those who held to the view that such a situation could
not be justified, in the words of this honourable Court.
If any one fact emerges clearly from those debates, Mr. President, it is
that no Member of the United Nations would have or could have sup
ported a legal theory having the former consequence, that is to say,
retention of rights over the Territory while denying obligations under
the Mandate. Indeed, as will shortly be shown, any such view would
have been irreconcilable with the intention of the Members of the United
Nations as confirmed, although not established, by Article 80, paragraph ARGUMENT OF MR. GROSS 2II
1, of the Charter, stating that until trusteeship agreements were con
cluded nothing in Chapter XII would be construed to alter in any manner
the rights of States or peoples or the terms of existing international in
struments, which include the Mandate in question, to which Members of
the United Nations were parties.
I shall deal with the question of Article So, paragraph I, shortly, with
the permission of the President.
Mr. President, 1 have referred earlier to the fact that Respondent's
contention concerning the limited and specifie nature of the obligation
to report only to a specifie body, named in the Covenant and in the
Mandate, reflects its contractual or consensual analysis of the mandates
system.
Respondent argues, indeed with sorne vehemence, that the Applicants
are in error in suggesting that Respondent's contention is based upon
the theory of contract. The Applicants are aware that the present for
mulation of Respondent's argument is cast in a mould different from
that of the 1962 model. Disregarding the form and looking at the sub
stance, however, the conclusion remains inescapable that the theory
of the "specifie supervisory body", if 1 may refer toit in that way, rests
essentially on the proposition that Respondent did not agree, and would
not have agreed, to any supervisory body other than the Council of the
League of Nations.
The contention that Respondent agreed to only one body, and not to
another, is contractual in essence if not in formulation, even though it
may be formally garbed in the robe of principle. As the Court has held,
such an interpretation of the obligation is irreconcilable with the charac
teristics of the Mandate as an international institution with an inter
national status. On the other hand, if the obligation of international
supervision is to be regarded, as it properly must be, as a general and
basic legal duty, laid upon the League as an organized international
community, it follows that the duty of international accountability
subsists so long as Respondent retains rights under the Mandate. If the
Respondent does not wish to conform to the law of the Mandate, Re
spondent must relinquish its rights. In the words of Judge Bustamante,
previously quoted:
"The function of the Mandatory is a responsibility rather than
a right (Article 22. paragraph 2, of the Covenant) ... it is for the
1\Iandatory to refuse the trust if it cannat bear the burden." (I.C.].
Reports I962, p. 357.)
\Vith the foregoing in mind, it seems to be pertinent again to note
the precise terms of the League resolution of 18 April 1946, and to con
sider the legal significance of Respondent's actions with regard to that
resolution.
The contents of certain antecedent declarations made by Respondent
have been quoted, in relevant part, in my colleague 1\Ir.1\Ioore'spresen
tation of Part B of the present phase of the Oral Proceedings. 1 refer to
pages 148, I5S-I57 and rsS-rsg, supra.
These were the declarations which were found in the 1950 Advisory
Opinion to "constitute recognition by the Union Government of the
continuance of its obligations under the Mandate". This is from· I.C.J.
Reports I950, page 135.
Respondent's declarations corresponded to those made by otbf!r212 SOUTH WEST AFRICA
Mandatories as well: the United Kingdom, France, Australia, New
Zealand and Belgium. These likewise have been referred to in Part Bof
the Applicants' presentation, at pagesI48-14g, supra.
The point to which the attention of the honourable Court is now
respectfullydrawn is the legal significance of Respondent's action in
accepting and voting for the resolution 18April 1946.It will be recalled,
Mr. President, that the fourth paragraph of that resolution was adopted
in the following terms:
"The Assembly,
+ Takes note of the expressed intentions of the Members of the
League now administering territories under the Mandate to con
tinueto administer them for the well-being and development of the
peoples concemed in accordance with the obligations contained
in the respective Mandates, until other arrangements have been
agreed between the United Nations and the respective Mandatory
Powers." "
Acceptance by Respondent of this resolution clearly involved an
explicit undertaking of sorne sort, unless it. be deemed a mere statement
of Respondent's present intention as of that moment. ln that case,
however, the phrase "until other arrangements have been agreed between
the United Nations and the respective Mandatory Powers" would have
been meaningless,·if not, indeed, misleading. The legal scope and nature
of the undertaking, moreover, would be determined by the legal signifi
cance attributable to the phrase, in the paragraph 1 have just quoted,
which reads "in accordance with the obligations contained in the respec
tive Mandates".
If the ward "obligations" in paragraph 4 of the 18 April resolution
means, as the Applicants respectfully submit, a basic and essential
obligation of international supervision,hen Respondent's undertaking
must and can only be read as a clear·commitment to submit to supervi
sion by the United Nations, whose agreement must in any event be
sought in terms of the same article to any other arrangement. Whether
such an undertaking on the part of Respondent is described as implicit,
inferred, or tacit has no relevance whatever.
A phrase sometimes used by Respondent in its written pleadings is
"an implication of tacit agreement"' (for example, II, p.143). Passing
notice may be taken of the tautology inherent in the quoted phrase,
inasmuch as an agreement which is tacit can only be implied. But the
grammar does not matter; the pointis that no matter how consent may
be manifested or charaderized, the legal consequences are identical.
The only relevant consideration, which is at the heart of the matter, is
that Respondent~ con pany with other Mandatories-agreed to, or
acquiesced in, an undertaking to carry on an obligation which this
honourable Court bas defined as the very essence of the Mandate.
The Applicants submit, with respect, that the foregoing interpretation
of bath the event and the intent is a very reasonable one. The Manda
tories,includi Respondent, accepted the continuance of the existing
regimes, includingthe substitution of the United Nations for the League
as the supervisory organ, for what everyone concemed hoped would be
a short, transitionalperiod. Ali Mandatories, other than Respondent,
anticipated replacement of the mandates system by the trusteeship ARGUMD!T OF MR. GROSS 213
system, and in the event acted in accordance with the spirit of the
Charter in,the accomplishment of that end.
The United Nations membership resisted and avoided explicit mea
sures or steps, such as the establishment of a temporary trusteeship
committee, for fear that any such measures or steps might encourage
delay in the- completion of trusteeship agreements. The United Nations
did, however, manifest its understanding and intention to exercise
supervisory authority over the J\Iandate. Resolutions of the United
Nations General Assembly, as the Court said in 19)0, affirmed its com
petence in the premises. This was in the.response to question (c) in the
1950 Opinion, at page 143· Respondent had manifested the clear inten
tion to seek an agreed arrangement with the United Nations, whereby
the Mandate 'would be terminated as the result of the Territory's in
corporation into the Republic of South Africa. Respondent's intention
in this respect was followed up by its submission of such a proposai "tp
the General Assembly for judgment". This is quoted in the I.C.]. Reports
I950, at page 142:' · '
On the other band, Mr. President, acccptance of Respondent's inter
pretation of the event and the intent would mean that international
supervision had lapsed, that all Respondent did by accepting the 18
April 1946 resolution was to void that obligation, or record its nullity,
and that such obligation could be restored only, if at all, by a new
auangement whichmight or might not be agreed with the United Nations.
Acceptance of such an interpretation would n'ot merely posit a muti
lated Mandate, it would make iriélevant most of what this honourable
Court bas had to say about Article 22 of the Covenant and about the
nature and purpose of-the Mandate itself. ·
Finally, brief comment may be iri order conceming the legal signifi
cance of the adoption of the 18 April 1946 resolution from the perspec
tive of the United Nations side of the event.
In the 1950 Advisory Opinion, this honourable Court found that the
aforesaid resolution "presupposes that the supervisory functions exer
cised by the League would be taken over by the United Nations". This
is from I.C.]. Reports rgso, page 137.
It is submitted, with respect, that the word "presupposes" bears
precisely the correct connotation. On the one band, the term reflects
the common understanding of the League Members. On the other band,
the tenn recognizes that the League could not appropriately have taken
express action or implied action which purported to assign or transfer
functions to the United Nations, or in any other way to bind the latter
Organization. Renee, the League resolution went as far, in tenus, as
was legally or practicably feasible and appropriate under the circum
stances.
The resolution of the League made clear the intention of the League
Members, most. of whom, including Respondent, were also Members
of the co-existent United Nations, that the Mandate regime would
continue until-1 stress the word "until"--other arrangements super
seding that regime might be agreed upon between the Mandatory Powers
and the United Nations.
The 1962 Judgment likewise intcrpreted the 18 April 1946 resolution
in a sense wholly consistent with the 1950 Advisory Opinion.
The honourable Court in the 1962 Judgment said:
"... obviously an agreement was reached among ali the Members2!4 SOUTH WEST AFRICA
of the League at the Assembly session in April 1946 to continue the
different Mandates as far as it was practically feasible or operable
with reference to the obligations of the Mandatory Powers and
therefore to maintain the rights of the Members of the League,
notwithstanding the dissolution of the League itself. The agreement
is evidenced not only by the contents of the dissolution resolution
of r8 April 1946 but also by the discussions relating to the question
of Mandates in the First Committee of the Assembly and the whole
set of surrounding circumstances which preceded, and prevailed at,
the session." (l.C.]. Reports r!}62, p. 338.)
The Court's references to feasibility or operability corresponded to
the objective realities of the situation caused by the demise of the
League, to wit, the necessity to substitute the existing supervisory organs
with others, and specifically, the substitution of the United Nations for
the League. That such substitution was both practically feasible and
operable is beyond dispute, inasmuch as the United Nations, then in
existence, had:
"another international organ performing similar, though not identi
cal, supervisory functions,
[and was] legally qualified to exercise the supervisory functions
previously exerctsed by the League of Nations with regard to the
administration of the Territory ... " (l.C.]. Reports r950, pp. 136,
I3J.)
Accordingly, the United Nations was in a condition and in a position
to replace the League of Nations both from a feasible and operable stand
point.
In the rg6z Judgment this honourable Court likewise passed upon the
significance properly to be attributed to the declarations made by
the manda tory powers prior to adoption of the resolution; the Court
concluded that-
"... the common understanding of the Member States in the As
sembly-including the Mandatory Powers-in passing the said
Resolution, was to continue the Mandates, however imperfect the
whole system would be after the League's dissolution, and as much
as it would be operable, until other arrangements were agreed upon
by the Mandatory Powers ... " (I.C.]. Reports r962, p. 341.)
The Court's qualifications, such as the phrase "however imperfect
the whole system would be", or "as much as it would be operable",
referred, in the Applicants' respectful submission, to the obvions fact
which the Court noted in the sentence preceding the quoted language
that "... sorne organs of the League like the Council and the Permanent
Mandates Commission would be missing". As the Court also noted, this
"complete compliance with the Jetter of the
fact necessarily precluded
Mandate". That is also from l.C.J. Reports r962, page 341.
The Court's discussion, of course, was in the context of Respondent's
second preliminary objection, which was premised on a literai construc
tion of the term "another member of the League of Nations" in the
compromissory clause of Article 7 of the Mandate. The Court's reasoning,
based upon its interpretation of the transactions in April 1946, together ARGUMENT OF MR. GROSS 215
with the terms of the resolution itself, led the Court to the conclusion
that the resolution "was adopted precisely with a view to averting"
literai objections derived from the quoted term in question, "another
member of the League of Nations". It is submitted that the same con
siderations, and full parity of reasoning, apply to interpretation of
Article 6 and Article 7, paragraph r, in respect of the matter under
discussion.
The 1946 League agreement was to maintain the "status quo as far as
possible" -in the words ofthe I.C.]. ReportsI962, at page 342. The mainte
nance of the status quo as far as possible must have included the sub
stitution of the United Nations for the League, unless the very essence
of the Mandate was to be excluded, and this must be so for "decisive
reasons"-in the words of the Court in 1950 which are set out in the
I.C.]. Reports I950, at page 136. Acceptance of Respondent's contention
would, on the contrary, have produced a mutilated Mandate which, far
from preserving the status quo as far as possible, would have destroyed
the status quo almost as far as possible, by excluding the very essence of
the Mandate.
Mr. President and Members of the honourable Court, I should now
like to turn to discussion of the significance of Article 7, paragraph r, of
the Mandate.
The Applicants' Submission 9 is as follows:
"... the Union, by virtue of the acts described in Chapters V, VI,
VII and VIII of this Memorial coupled with its intentas recounted
herein, has attempted 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 Article 7 of the
Mandate and Article 22 of the Covenant; and that the consent of
the United Nations is a necessary prerequisite and condition prece
dent to attempts on the part of the Union directly or indirectly to
modify the terms of the Mandate." (1, p. 198.)
The judgment of this honourable Court, accordingly, is sought in
these proceedings, not only in respect of the Mandatory's procedural
obligations under Article 6 of the Mandate, but also with respect to the
restriction upon the right of modification embodied in Article 7, para
graph I, of the Mandate and to the interpretation of such paragraph.
This is, as 1 have said, the stipulation that "the consent of the Council
of the League of Nations is required for any modification of the terms of
the present Mandate".
The obligation embodied in Article 7, paragraph 1,which is of decisive
consequence, precludes the mandatory from unilaterally modifying its
obligations, including those of submission to administrative supervision
and judicial protection.
The prohibition against unilateral modification is, on the one hand, of
the very essence of accountability inasmuch as it assumes the continuance
of the securities to assure proper exercise of Respondent's rights in the
Territory; such rights, it will be recalled, have been described by this
honourable Court as "mere tools given to the Mandatory to enable it to
fulfilits obligations". On the one hand, therefore, Article 7, paragraph 1,
safeguards the principle of "no annexations"; on the other, it precludes
direct, or indirect, modifications which might, inter alia, impede the
self-determination of the inhabitants of the Territory.216 SOUTH WEST AFRICA' ,
Juclge Sir Louis Mbanefo, in his separate opinion appended to the
Judgment of 21 December 1962, said with respect to Article 7:
"Article 7, read in the light of paragraph 8 of Article 22 of the
Covenant, is a limitation on the power of administration which bad
been conferred on the Mandatory. The first paragraph of the Article
says the Mandatory cannot modify the terms of the Mandate with
out the consent of the Council, and the second paragraph imposes
on the Mandatory the obligation to accept the compulsory juris
diction of the Court in the event of any dispute with another Member
of the League regarding the interpretation and application of the
l\Iandate."(I.C.J. Reportsrg6z, p. 442.)
At IV, p. 135 (which is reiterated by Respondent in VI) Respondent
refers to the Advisory Opinion of 1950 in this regard, stating that-
"... an essentiallink in the Court's reasoning [with respect to this
Article] was its previous finding that 'powers of supervision in
respect of the administration of the Mandates' were vested in the
General Assembly of the United Nations".
Respondent then proceeds to argue that if its submission conceming
lapse of Article 6 is sound, Article 7, paragraph I, likewise must have
lapsed, and that the reasoning of the Advisory Opinion of 1950, accord
ingly, is unsound.
In the summary of legal issues in Part A of the Applicants' presenta
tion, the phase with which the Applicants commenced the presentation
of this phase of their case to the honourable Court, reference was made
to the inescapable consequences which would flow from the lapse or
inoperability of Article 7. paragraph 1, so long as Respondent retained
and exercised rights based on the Mandate, upon which its administra
tion of the Territory is founded. Either of two intolerable results would
ensue: either the Mandate would be frozen in its present form in per
petuity for lack of a supervisory organ competent to give its consent to
any modification of its terms; or Respondent wouJd .be free uniJaterally
to modify the terms of the provisions of the Mandate without tlie consent
of a supervisory organ, which modification could include destruction of
its international status, thereby annexing the Territory in law as weil as
in fact. Either one of these two intolerable consequences would flow
from lapse of Article 7, paragraph I, so long as Respondent retained
rights over the Territory, while denying obligations under this Article.
Inasmuch as Respondent, for the purpose of refuting the Applicants'
Ninth Submission, to which 1 have alluded, relies upon ali its arguments
relating to the Iapse of administrative supervision, it is necessary to
el~bora fureher, at this stage, considerations underlying Article 7,
paragraph r, and its relationship to Article 6 of the Mandate ..
In the Advisory Opinion of 1950, the Court in response to question (c)
dealt with the issue whether Respondent has the competence to modify
the international status of the Territory of South West Africa or, in the
event of a negative reply, where competence rests to determine and
modify the international status of the Territory.
With respect to the first part of the question, the Court held as follows:
"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 ARGUME~T OF MR. GROSS 217
administration, as embodied in Article 22 of the Covenant and in
the Mandate. It is clear that the Union has no competence to modify
unilaterallythe international status of the Terri tory or any of these
international rules. This is shown by Article 7 of the Mandate, which
expressly provides that the consent of the (ouncil ofthe League of
Nations is required forny modification of the terms ofthe Mandate."
(I.C.]. Reports I950,p. 141.)
With respect to the second part of question (c), the Court took oc
casion to point out that "the normal way of modifying the international
status of the Territ ory would beto place it under the Trusteeship System".
Failing agreement upon such "normal way", the Court held that:
"The competence to modify in other ways the international
status of the Terri tory depended upon the rules governing the amend
ment of Article 22 of the Covenant and the modification of the
terms of the Mandate." (Ibid.)
The Court went on to say, in the 1950 Opinion:
"Article 7 of the Mandate, in requiring the consent of the Council
of the League of Nations for any modification of its tenns, brought
into operation for this purposethe same organ which was invested
with powers of supervision in respect of the administration of the
Mandates. In accordance with the reply given above to Question (a),
those powers of supervision now belong to the General Assembly of
the United Nations." (Ibid.)
The Court referred to the analogy of the procedures required in Articles
79 and 85 of the United Nations Charter, which gave to the General
Assembly authority to approve alterations or amendments of Trusteeship
Agreements. By application of this analogy the Court said that it could
be inferred "... that the same procedure is applicable to any modifica
tion of the international status of a terri tory under Mandate which would
not have for its purpose the placing of the territory under the Trustee~·
ship System". That is from page 142 of the Court's Opinion in 1950.
The Advisory Opinion then proceeds to cite declarations made by the
Respondent, as weil as action taken by the General Assembly, as con
finnatory of the Court's conclusion.
One such statement, that of 22 January 1946, before the Fourth Com
mittee of the General Assembly, has been referred to in Mr. Moore's dis
cussion, inPart Bof this phase of the Oral Proceedings. ~Ir M. oore, in
that phase, the Court will recall, recounted the history of events taking
place during the period 1945 and following.
Respondent's declaration, to which the Court referred, was that in
which Respondent explained the special relationship between itself and
the Territory under its Mandate. In the course of this deClaration, Re
spondcnt's representative to the Fourth Committee assured the Com
mittee that there would be no attempt to draw up an agreement until
the freely expressed will of the inhabitants of the Territory had been
ascertained. Respondent's representative continued: "When that had
been done, the decision of the Union would be submitted to the General
Assembly for judgment." This is quoted in the 1950 Opinion at page 142:
Similarly, on 9 April 1946, before the General Assembly of the League
of Nations itself, Respondent's representative declared that "it is the
intention of the Union Government, at the forthcoming session of the
United Nations General Assembly in New York, to fonnulate its case218 SOUTH WEST AFRICA
for according South West Africa a status under which it would be inter
nationally recognized as an integral part of the Union". That is from
page 142 of the 1950 Opinion.
After referring to actions taken by Respondent in accordance with
these declarations, the honourable Court concluded: "By th us submitting
the question of the future international status of the Territory to the
'judgment' of the General Assembly as the 'competent international or
gan', the Union Government recognized the competence of the General
Assembly in the matter." That is from the 1950 Opinion at page 142.
Finally, the Court noted that the General Assembly, for its part, had
"affirmed its competence by Resolution 65 (I) of December 14th, 1946",
in which the Assembly expressed the desire that agreement between the
United Nations and Respondent "may hereafter be reached regarding
the future status of the il-landated Territory of South-West Africa". The
resolution concluded: "The General Assembly, therefore, is unable to
accede to the incorporation of the Territory of South-West Africain the
Union of South Africa." Cited at page 143of the Advisory Opinion of 1950.
The attention of the honourable Court is respectfully called to the use
of the words "accede to" in the resolution of the General Assembly of
14 December 1946.
On the basis of the foregoing considerations, the Court unanimously
reached the conclusion that "... competence to determine and modify
the international status of South West Africa rests with the Union of
South Africa acting with the consent of the United Nations".
The Applicants, with respect, caU to the attention of this honourable
Court the comment in the 1950 Advisory Opinion which I have already
quoted, that "Article 7 of the Mandate, in requiring the consent of the
Council of the League of Nations for any modification ofits terms, brought
into operation for this purpose the same organ which was invested
with powers of supervision in respect of the administration of the Man
dates". That is from page 141 of the Opinion.
Mr. President, it is crystal clear, in our submission, why this must be
so: why the same organ, responsible for modification of the terms of the
Mandate, should be the organ which is in charge and has powers of super
vision in respect of the administration of the Territory. The organ, the
consent of which is required for any modification of the terms of the
Mandate, must be in a position to render an informed judgment con
cerning the question whether any particular modification would be in
the interests of the inhabitantsofthe Territory, would be consistent with
the spirit and objects of the Mandate, and would, indeed, correspond to
the general interest of the international community.
By virtue of paragraphs 7 and 9 of Article 22 of the Covenant, and
of Article 6 of the Mandate, the supervisory or~a ns to receive an an
nuai report, toits satisfaction, "containing full Information with regard
to the Territory, and indicating the measures taken to carry out the
obligations assumed under Articles 2,3, 4 and 5".
In order to consider intelligently, orto give an informed consent to,
any proposed modification of the terms of the Mandate, it is obvions
that the consenting organ must have access to the "full information
with regard to the Territory" in general, as well asto specifie indications
of the measures taken to carry out the Respondent's obligations toward
the inhabitants. Renee, consent to modification of terms embodying
obligations of this type must depend, inter alia, upon information read ARGUMENT OF MR. GROSS 219
inthe light of specifie indications of the practical consequences of mea
sures taken by Respondent to carry out its obligations.
The Council of the League was authorized to define in each case the
"degree of authority, control, or administration to be exercised by the
Mandatory" under paragraph 8 of Article 22 of the Covenant. The
Council of the League likewise confinned the .Mandate and defined its
terms. It was therefore appropriate and necessary that the Council of
the League be the organ whose consent was a precondition of any modifi
cation of the terms of the Mandate.
The Council itself obviously could not accord the necessary attention
to the detailed and day-to-day requirements of administrative super
vision of the Mandatory's conduct with respect to the Territory. Accord
ingly, Article 22, paragraph 9·of the Covenant of the League of Nations
required-not merely permttted-that "a permanent Commission be
constituted" for the purpose of assisting and advising the Council "on
all matters relating to the observance of the mandates". Such advice,
it is submitted, would necessarily have included opinion as to whether
the Council should give consent to any proposed modification of the
tenns of the Mandate.
There is thus a direct interrelationship between the provisions for
administrative supervision in Article 6 and reporting contained in the
Mandate and in the Covenant, and the first paragraph of Article 7 relating
to consent to modification of the terms of the Mandate. The two Articles,
it is respectfully submitted, are interrelated and must be read in each
other's light.
If Article 6 of the Mandate has lapsed, as Respondent contends,
the first paragraph of Article 7 would be thereby rendered ineffectual.
There would be no supervisory organ to give or withhold consent to
modification of the terms of the Mandate.
Precisely the same result would follow from Respondent's second
alternative contention, namely that the Mandate as a whole has lapsed,
including Article 7, paragraph r.
The result is one which bas long been contended for by Respondent
and repeatedly rejected by this honourable Court. In its written state
ment, submitted to the Court in rgso, Respondent's then Counsel con
tended:
"It is the considered view of the Government of the Union of
South Africa that there is no international legal limitation upon
their competence in respect of the territory and that their inter
national obligations, arising from the status of the territory, are to
be determined accordingly."
This is from the 1950 Pleadings, pages 83-84, which we quoted in the
Oral Proceedings of rg62 at page 305 (r7 Oct., moming).
Respondent's considered view in 1950 is presented to the Court again
in 1965, despite the intervening opinion and judgment of this honourable
Court.
The absence of such "international legal limitation" is still being
pressed. Article 7, paragraph r, Mr. President, is the major impediment
from a legal point of view to Respondent's exercise of a unilateral right
to annex the Territory. For, inasmuch as there is a functional relation
ship between Article 6 and Article 7, paragraphs rand 2, of the Mandate,
there is likewise a substantive relationship between Article J, paragraph220 SOUTH WEST AFRICA
r, and Article 2, paragraph r. The latter-Article 2, paragraph r
provides as follows:
"The Mandatory shall have full power of administration and
legislation over the _territory subject to tpr~se Mntndate as an
integral portion of the Union of South Africa, and may apply the
laws of the Union of South Africa to the territory, subject to such
local modifications as circumstances may require."
Those are the broadly formulated terms of Article 2. paragraph r, upon
which Rcspondent very heavily relies.
This was one of the "international rules regulating the Mandate
[~hic h]nstituted an international status for the Territory", in the
words of the 1950 Advisory Opinion, at page 132. Although Article 2,
paragraph r, vests in the Respondent "full power of administration and
legislation" over South \Vest Africa "as an integral portion" of South
Africa, such grant of powers is of course limited by the international
status of the Territory and is, of course, subject to the provisions of
Article 22 of the Covenant and of the remainder of the mandate instru
ment itself, notably Article 2 (2), Article 6 (r) and Article 7, paragraphs
(r)and (2).
An attempt, and this is relevant particularly in this context of the
discussion of Article J, paragraph r, an attempt, direct or indirect uni
laterally to incorporate or annex the Territory would constitute a modi
fication of the terms of the Mandate without the consent of the super
visory organ, to wit, the United Nations.
The correlation of Article 2,paragraph r, with Article 7, paragraph r,
underlies the Applicants' Submissions Nos. 5 and 9 respectively.
As formulated in the Memorials (I), at pages r84-195, and reaffirmed
in the Reply (IV), at pages 572-586, Respondent has taken action reftect
ing a PUT(IOSeo , bjectively determined, to incorporate and annex the
Territory mto the Republic of South Africa. Respondent has pursued
this objective by means of policies and acts which impair, and are in
compatible with, the.separate international status of the Territory.
Such policies and acts are as set forth in the written pleadings of the
Applicants: (r) compulsory conferment of South African citizenship on
the inhabitants by a process having general application; (2) inclusion of
South West African Representatives in the South African Parliament,
where they are entitled to vote on South African legislation applicable
to South Africa itself; (3) the transfer of the administrationof part of
the Territory to the South African Government; (4) the vesting of the
title to "Native" Reserve Land in the South Africa "Native" Trust;
and (5) the transfer of "Native" administration from the Territorial
Administrator to a South African Minister of "Bantu" Administration
and Development.
The Applicants, relying upon• undisputed facts, request this honour
able Court in their Submission No. 5 to adjudge and declare, inter alia,
that Respondent, by virtue of conduct described in Chapter VIII of the
Memorials, has treated the Territory in a manner inconsistent with its
international status. In Submission No. g, the Applicants request the
Court to adjudge and declare, inter aliathat, by virtue of acts described
in Chapters V, VI, VII and VIII of the Memorials, "coupled with its
intent as recounted" therein, Respondent has attempted to modify
the terms of the Mandate, w.ithout the consent of the United Nations. ARGUMEXT OF MR. GROSS 22!
The "intent" referred to in Submission No. 9, as I have said, is the
objectively determinable intent, legally to be inferred from Respondent's
conduct by virtue of the universally accepted principle that a person or
entity is presumed to "intend" the necessary and reasonably foreseeable
consequences of his,r its, actions. Submission No. 9 is the only one of the
Applicants' Submissions, Mr. President, in which explicit reference to
"intent" is made. Such reference is regarded by the Applicants as rele
vant because of the fact that Article J, paragraph r, is the only provision
in the l\Iandate which contemplates a consensual arrangement between
the l\Iandatory and the supervisory organ, a subsequent agreement to
accomplish a certain result. ·
Accordingly, conduct from which may be objectively inferred an
intent to evade the requirements of Article J, paragraph r, by means of
unilateral action, takes on significance in the absence of a showing by
Respondent of any plan or purpose to seek consent of the supervisory
organ.
Respondent's conduct, as set forth inthe chapters of the Memorials
referred to in Submissions Nos. 5 and 9, is relevant to a consideration of
the consequences which would flow from lapse of Article J, paragraph r.
1\IrPr~sid e nad,at the conclusion of this morning's session before
the recess, that Respondent's conduct, as set forth in the chapters of the
J\I~rpo rrfrred,to in Submissions numbers 5 and 9, is relevant to a
consideration ofthe consequences which would flow from laps o~Article
J, paragraph r. If the honourable Court were to accept Respondent's
contention concerning lapse of provisions for international supervision,
inclu4ing Article J, paragraph r, the Applicants' Submissions numbers
5 and 9 would, thereby, and for that reason alone, become unavailing.
In 5:0me,Respondent's conduct, upon which the said Submissions num
bers.s and 9 are based, demonstrates that ArticleJ,paragraph r, is not
of merely hypothetical or theoretical consequence and importance, but
is of <:lirectimmediate practical significance in the light of the actions
and .policies complained of in the Memorials. Renee, Article 7, paragraph
r, is in a practical as well as a theoretical sense, both constitutionally and
organically of the essence. It is analogous to the amendment provisions
of constitutions, charters,ordinances statutes, provisions which embrace
structural and legal qualities unique to themsclves. The Court's rea
son!ng in the rg62 Judgment in respect of the essentiality of judicial
protection," applies wit;h at least equal weight to procedures goveming
and.limiting the Mandatory's powers of modification of the terms of the
organic instrument itself.
The Court in the rg62 J udgment took special note of this point in the
context of the essentiality of judîcial protection in the mandate plan.
The Court, referring to·the unanimity rule of the Council, pointed out
that judicial protection was essential because of the possibinter alia,
that a conflict between Respondent and the Council could occur if the
forrner-should persist in adopting sorne measure in its administration of
the Mandate notwithstanding the objection of the Council that it was a
violation ofthe Mandate.
The honourable Court went on to say:
"This possibility is not a mere conjecture or hypothesis. As a
matter of fact, the Respondent had more than once intimated its
desire to incorporate South West Africa into the Union and the
Permanent Mandates Commission of the League each tirne objected222 SOUTH WEST AFRICA
to it as being contrary to the Mandate; and the same idea of the
Mandatory Power was also conveyed to the United Nations in 1946.
If it should have attempted in the days of the League to carry out
the idea contrary to paragraph 1 of Article 7, an important dispute
would arise between it and the Council of the League." (l.C.J.
Reports I962, p. 337.)
The inter-relationship between Article 7. paragraph I, the inhibition
against llllÏlateral modification of the terms of the Mandate, and the
essentiality of judicial protection of the Mandate is thus explicitly made
clear in the rg62 Judgment itself.
In short, Mr. President, the provisions of the first two paragraphs of
Article 7 are inter-related and mutually reinforcing. As 1 have demon
strated, the provisions of Article 6 and the first paragraph of Article 7
are Jikewise inter-locking and mutually supporting, just as the provisions
of Article 6 and the second paragraph of Article 7, the compromissory
clause, are inter-relatedand mutually supporting, in the decisive aspects
1 have mentioned earlier in these proceedings.
It follows from the inter-locking and inter-dependent nature of these
three aspects of international supervision, administrative accountability
in a reporting sense, judicial protection and consent required for modifi
cation of the terms of the Mandate, no one can be considered to have
lapsed without either jeopardising or, indeed, eliminating the other two.
It follows, Mr. President, that the principle of interpretation relating
to the natural and normal meaning of the words "Council of the League
of Nations" employed in Article ], paragraph !, cannat be applied
without doing lethal violence to the rg6z Judgment and the Court's
unanimous opinion in rgso.
Respondent's reply to the Applicants' ninth submission is limited
to the contention that, inasmuch as the 1950Advisory Opinion assertedly
was wrong in respect of the right of the United Nations to exercise ad
ministrative supervision over the performance of the mandate obliga
tions, it must follow that the Court's response to question (c) in that
Opinion also was wrong since, as Respondent said, "an essential link
in the Court's reasoning was its previous finding that 'powers of super
vision in respect of administration of the Mandates' were vested in the
General Assembly of the United Nations". It was on that basis, which
I have just quoted from the Counter-Memorial, IV, page 135, that Re
spondent based its inference with respect to the allegedly erroneous,
though unanimous, Opinion of the Court with respect to question (c),
relating to the right to modify the terms of the Mandate with the consent
of the United Nations.
Respondent's request for reconsidera tion and revision of the unanimous
holding of this honourable Court in the 1950 Advisory Opinion, as weil
as of the reversai of the rg6z Judgment in this context, leads to a reductio
ad absurdum, that is to say, a conclusion that if the alleged "new facts"
bad been known to the Court in 1950, the Court would have hetd that
Respondent does, after aU, have competence to modify, and thereby
destroy, the international status of the Territory. No other logical in
ference can be drawn from Respondent's contention.
Respondent's contention in response to the Applicants' ninth sub
mission accordingly collapses of its own weight.
Apart from the logical imperative which supports the Applicants'
reading of the true grounds of the 1950 Advisory Opinion, note also ARGUMENT OF MR. GROSS 223
may be taken of the fact that, as the Court pointed out in 1950, Respon
dent itself took actions in rg46 which made clear its understanding that
Respondent did not have competence unilaterally to modify the Terri
tory's international status.
Reference already has been made to Respondent's declarations and
actions in 1946, as well asto .Pertinent resolutions of the United Nations
General Assembly, adopted m the same year, which are cited in the
rgso Advisory Opinion and on the basis of which the Court concluded
that Respondent has "recognized the competence of the General As
sembly in the matter" and that, as the Court said, the General Assembly
has "affirmed its competence" therein.
For ali these reasons, Mr. President and Members of the honourable
Court, the Applicants respectfully submit that this honourable Court
should reaffirm and hold that Article 7, paragraph r, of the Mandate
remains in full force and effect, 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 any of the
terms of the Mandate for South West Africa.
Mr. President, with your permission, 1 turn now to a consideration of
the confirmatory effect and significance perceived by the Applicants to
reside in Article So, paragraph r, of the Charter of the United Nations.
By way of preface may I, Sir, proffer my regret to the honourable
President and Members of the Court for the incompleteness of presenta
tion of this question during the preliminary objections phase of these
cases. The incomplete nature of the argument of the issue then before
this honourable Court is, indeed, manifest from the degree of misappre
hension apparent from opinions on the part of learned judges concern
ing the intended purport of the Applicants' submission on this matter.
In the joint dissenting opinion of the honourable President and Judge
Sir Gerald Fitzmaurice appended to the Judgment of 21 December rg62,
the learned Judges, and, in our respectful submission, quite appropriately,
commented that:
"The sole purpose of the Article [that is to say, Article So, para
graph r, of the United Nations Charter] was to prevent any provision
of Chapter XII of the Charter being construed so as to alter existing
rights prior to a certain event." (I.C.]. Reports I962, p. sr6.)
The Applicants, with respect, did not intend to intimate a view in
consistent with that expressed in the passage just quoted, and any
uncertainty engendered by the Applicants' argument in the premises
merely serves to confirm the inadequacy of their Counsel's presentation,
for which 1have tendered an expression of regret.
The Applicants have, indeed, conceived the sense and intention of
the so-called "conservatory clause" (as it was described by its proponents
in the San Francisco Charter Conference) to be just as described in the
passage \'lhich I have quoted from the learned judges in the joint dissent-
ing opinion. ·
Without venturing to interpret the meaning intended to be attributed
to the Article in the Advisory Opinion of rgso, the Applicants respect
fully submit that the inclusion of Article So, paragraph r, in the Charter
serves to confirm the understanding of the authors of the Charter that
certain rights, including those under mandates, did continue to exist,
notwithstanding the dissolution of the League. The Article, in the224 SOUTH WEST AFRICA
Applicants' view, did not establish, constitute, or maintain these or any
other rights. It is, as the President and the learned Judge cogently
pointed out, an interpretative or saving clause of a type frequently
to be found in legislative or treaty instruments.
The SifPiifi.canceof the Article in these proceedings, as conceived by
the Apphcants, is that the Article serves to confirm, orto make clear by
way of confirmation, that the authors of the Charter did consider that
certain rights were in existence, by force of other legal instruments or
arrangements, which were not to be altered in any manner as a result of
any construction, or misconstruction, of Article XII of the Charter.
If such rights were not thought to be in existence, Mr. President,
there would seem to have been little reason to insulate or shelter them
from the possibly destructive consequences of a misconstruction of
Article XII of the Charter.
There is·no room for doubt that the "international instruments",
referred to in the saving clause, were intended to include the mandates.
Such a construction of the first paragraph of Article So never has been
disputed, so far as the Applicants are aware. Indeed, such a construction
is confirmed by the explicit reference to mandated territories in the
second paragraph of the same Article which relates to the first paragraph
thereof.
The Applicants' understanding of the assumption reflected in, and
confirmed by, the savin cause, to wit, that rights embodied in mandate
regimes continued in ex1stence until superseded by other agreed arrange
ments, and 1 stress the word ''until", is likewise confirmed by statements
made by Members of the United Nations, including Respondent, during
the relevant period.
Thus, Respondent's delegate to the United Nations General Assembly
in 1946, announced that-
"arrangements are now in train for ... consultations to take place
and, until they have been concluded, the South African Government
must reserve its position conceming the future of the mandate,
together with its right of full liberty of action, as provided for in
paragraph r of Article So of the Charter". (Il, pp. 41-42.)
This, indeed, if I may interject, gives to Article So, paragraph I, an
implication of affirmative or positive content not contended for by the
Applicants.
Severa! days later, Respondent's Representative in the Fourth Com
mittee of the General Assembly amplifi.ed the foregoing statement as
follows, according to the Summary Record of the Fourth Committee.
Referring to the text of Article 77 of the Charter, the Delegate of the
Respondent to the Fourth Committee said: ·
"... under the Charter the transfer of the mandates régime to the
trusteeship system was not obligatory. According to paragraph r of
Article So, no rights would be altered until individual trusteeship
agreements were concluded. It was wrong-to assume that paragraph
2 of this Article invalidated paragraph I.The position of the Union
of South Africa was in conformity with this legal interpretation."
(II,p. 42.)
Mr. President, the Applicants do not cite these passages in any respect
to comment upon the validity, or otherwise, of their content or implica
tions; they are cited simply to show that the Respondent, along with ARGUMENT OF MR. GROSS 225
other Members of the Organization, attributed sorne content of a positive
nature to paragraph r of Article 80, and it does not matter for the present
purpose what that content was, in the .view of the Respondent, or
wbether such content was right or wrong.
Rights were assumed to exist at that time, which rights were, by the
terms of Article So, paragraph I, insulated and sheltered from the cor
rosive or destructive effects of a misconstruction, or possible miscon
struction, of Chapter XII of the Charter of the United Nations.
Rèspondent was not alone in giving to Article 8o, paragraph I,sorne
sort of positive connotation, exceeding that contended for by the Ap
plicants, as I have said. The Applicants have conceived' the Article in
question to be a'saving clause which indicates the assumption of the
United Nations Members that certain rights were in existence which
jlistified safeguarding by such a clause .against a misconstruction of
another portion of the C_harter. .
On n April 1946, for example, the Belgian representative stated.in the
United Nations General Assembly that:
"We expressed our confidence that the Trusteeship Council would
soon come to occupy in the United Nations Organization the im
portant place which it deserves. We can only repeat that hope here
and give an assurance that, pending its realization, Belgium will
remain fully alive to ail the obligations devolving on Members of
the United. Nations under Article So of the Charter."
Again here is a positive content, or implication, exceeding that which
the Applicants respectfully attribute to the paragraph in question.
· And more than two years later, during the period that Members of
the .United Nations were hopefully· prodding Respondent to conform
t9 the spirit of Chapter XII of the Charter and to relent in its refusai to
subrnit a trusteeship agreement for South West Africa, the Belgian
representative, Mr. Ryckmans, made a statement in the Fourth Corn"
mittee of the United Nations General Assembly, admonishing Respon
dent in the following terms:
"On the other hand, [he, that is in the summary record to which
I refer-he, Mr. Ryckmans] felt bound to draw the attention of the
South African representative and the Committee to the terms of
Article So, which provided that nothing in Chapter XII of the
Charter should be 'construed in or of itself to alter in any manner
the rights whatsoever of any States or peoples' [etc.]. That included
[said the Belgian representative] the people of South West Africa,
who, having bad the benefit of international supervision under the.
Man~at Sestem, could not be deprived of that right." ·
This is from the General Assembly Otficial Records, Third Session, PartI;
Fourth Committee, 79th Meeting.
Mr. Ryckmans' concluding comment, to the effect that the rights of.
peoples, inter alia, referred to in Article So, paragraph r, "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", clearly confirms, it seems to the Applicants, that the authors of the
Charter assumed that mandate rights, both of States and of peoples,
continued, notwithstanding the dissolution of the League, and that the
authors of the Charter, in Article 8o, paragraph 1,sought to make clear
that Chapter XII was not to be construed in a manner which would 226 SOUTH WEST AFRICA
alter, in any way whatsoever, such rights which continue to exist by
force of other instruments or undertakings.
To like effect, Mr. President, the 1956 Advisory Opinion commented
as follows concerning the Court's view of Article So, paragraph r, as set
forth inthe 1950 Opinion:
"In discussing the effect of Article So (r) of the Charter, preserving
the rights of States and peoples under existing international agree
ments, the Court observed: 'The purpose must have been to provide
a real protection for those rights;but no such rights of the peoples
could be effectively safeguarded without international supervision
and a duty to render reports to a supervisory organ.' " (I.C.].
Reports r956, pp. 27-28.)
The phrase from the 1950 Opinion in relation to Article So (1) may, with
your permission, Sir, be read again. "The purpose must have been to
provide a real protection for those rights.''
It may be repeated, Mr. President, with respect, that the Applicants
do not contend that any positive_Iegal consequence was brought about
by Article So, paragraph r. The language of the Court just quoted from
the 1950 Opinion might, with respect, imply a different view. In the
Applicants' view, the Article simply confirmed the understanding of
the authors ofthe Charter that there were rights, including those under
mandate, that those rights continued despite the dissolution of the
League until other arrangements would be agreed with the United
Nations, and that, as a saving clause, it made clear that none of those
rights could be amended, superseded, or erased by a possible misconstruc
tion of Chapter XII of the Charter. Moreover, as 1 have said, the corn
mon assumption among United Nations Members, that rights under the
Mandate did survive and would survive the dissolution of the League,
is to be found also in the actions and declarations of the Respondent
itself (including the declarationsnd statements 1 have just quoted), its
acceptance of the League resolution of r8 April 1946, and other relevant
transactions and events in which the Respondent participated in the
period in question.
ln this context, Mr. President, it seems appropriate to note what may
be a significant similarity of language employed in three related instru
ments, as an aid to interpretation of the events and transactions in
question.
Article 8o, paragraph r, itself, Respondent's declaration of 9 April
1946, and the League resolution of r8 April 1946. Taking them in reverse
order:
First: The League of Nations resolution of rS April 1946 provides, in
its fourth paragraph, as I have read, that mandatories (including Re
spondent) would continue to administer territories under mandate "in
accordance with the obligations contained in the respective mandates,
untilother arrangements have been av;eed between the United Nations
and the respective Mandatory Powers '.
Secondly: Respondent's 9 April 1946 declaration likewise, in sub
stantially the same langu~ e,dertook to carry on its obligations under
the Mandate "untilsuch tune as other arrangements are agreed upon".
Thirdly: Article So, paragraph r, of the Charter provides that nothing
in Chapter XII shall be construed to alter in any manner the rights
whatsoever of any States or peoples, or the terms of certain existing inter- ARGUMENT OF MR. GROSS 227
national instruments (indu ding mandates) "until [trusteeship] agreements
have been concluded' '.
These three instruments-Article So, paragraph r, Respondent's
declaration of 9 April 1946 and the League resolution of 18 April 1946,
aU share at least one decisively relevant common feature: each affirmed
the proposition that the mandate regime would continue, with ali the
rights and obligations, until superseded by agreed arrangements.
In like terms, for example, New Zealand agreed to maintain its
Mandate "until the conclusion of our Trusteeship A.$reement for Western
Samoa". This is from the League of Nations Otftcial Journal, Special
Supplement No. 194, at page 43·
It seems clear to the Applicants, with respect, Mr. President, that the
uniform use of the word "until" reflected, or tends to confirm, the
common understanding that a legal situation then existed, in which
mandate rights and obligations were in effect, and would remain so,
until the United Nations otherwise agreed.
Any other construction, furthermore, would render meaningless the
admonition in par~aph 2 of Article So, that paragraph 1 "shall not
be interpreted as gwing grounds for delay or postponement" of con~
clusion of agreements for placing "mandated or other tcrritories" under
the trusteeship system.
For the foregoing reasons, the Applicants respectfully submit that
Article So, paragraph 1, is reasonably to be construed as confirming the
assumption of the authors of the Charter that mandate rights did
continue, and would continue in effect, until superseded by other agreed
arrangements, even though the saving clause (Article So, paragraph 1)
did not, in any manner, in and of itself create, maintain, or otherwise
ensure the continuance of such rights, eJCceptagainst possible ravages
which might result by reason of misconstruction of Chapter XII of the
Charter.
Mr. President, the foregoing considerations relating to interpretation
of Article So, paragraph 1,make pertinent a related question which the
Parties to these proceedings did not discuss before this honourable
Court in the phase dealing with the Preliminary Objections. I refer, Sir,
to the question of the rote of Article 73 of the United Nations Charter.
As bas been said, Article So, paragraph r, the "saving" clause, refers
only to Chapter XII, and provides that nothing in that chapter
"shall be construed in or of itself to alter in any manner the rights
whatsoever of any States or any peoples or the terms of existing
international instruments to which Members of the United Nations
may respectively be parties".
And paragraph 2 of Article So provides, as 1 have read:
"Paragraph r of this Article shall not be interpreted as g~vmg
grounds for delay or postponement of the negotiation and conclusion
of agreements for placing mandated and other territories under the
trusteeship system as provided for in Article 77·"
lt is to be noted, Mr. President, that the second paragraph of Article So,
just quoted, does not refer to former mandated territories, but that it
speaks in the present tense, "for placing mandated and other territories
under the trusteeship system as provided for in Article 77".
No issue as to the relevance, or otherwise, of Article 73 was raised by
the Parties in the 1962 proceedings, nor does Respondent contend, in228 SOUTH WEST AFRICA -
its written pleadings (so far as the Applicants have noted) that Article 73
has any application to the Territory for South West Africa.
An important question of United Nations Charter interpretation, how
ever, is raised in the joint dissenting opinion appended to the 1962
Judgment by the honourable President of the Court and Judge Sir
Gerald Fitzmaurice. 1 tis, accordingly, with profound respect and as a
perceived duty that I submit to this honourable Court observations
concerning certain characteristics of Article 73 of the Charter which, in
the Applicants' respectful view, show that, despite certain affinities
between that Article and Article 22 of the Covenant of the League of
Nations, the undertakings embodied in Article 73 differ so markedly
from the obligations under both the mandates and the trusteeship
systems, that Article 73 is neither capable of serving, .nor, in the Appli
cants' respectful view, was it designed to serve, as a substitute for, or
replacement of, either the mandates system or the trusteeship system.
O~vious il yeed not be said that the joint dissenting opinion does not
imply to the contrary, with respect, to the trusteeship system.
The caption of Chapter XI of the Charter, of which Article 73 is the
principal of two provisions, is styled "Declaration Regarding Non-Self
Goveming Territories".
Unlike Chapter XII, Article 73 embodies no reference to "territories
now held under mandate", which phrase appears in Article 77 of Chap
ter XII of the Charter.
· As a mere "declaration", rather than an "agreement", Article 73 has
no relevance to,or correspondence with, so far as the Applicants can see,
the formulations in the rS April 1946 resolution of the League, Respon
dent's declaration of 9 April 1946, or Article So, paragraph I,of the
Charter itself, ali of which contemplated continuance of rights and
obligations under the mandate regimes, until other agreements had been
concluded. And here 1 stress the word "agreements".
The information which United Nations Members responsible for the
administration of non~self-gov erriorinsg undertake to transmit
to the Secretary-General, pursuant to Article 73, paragraph (e), of the
Charter, is limited-and I quote from the Artide-"to statisticaland
other information of a technical nature", and even this, Mr. President,
is subject to undefined "security and constitutional considerations".
The sacred trust of the Mandate, pursuant to which the material and
moral well-being and social progress of the inhabitants of the Territory
is required to be promoted to the utmost, would be accounted for, if
at ali, pursuant to Article 73 of the Charter, merely by transmittal of
statistical and other information of a. technical nature, subject to uni
laterally determined constitutional considerations.
Even more, Article 73 does not in tenns preclude, direct!y or indirectly,
unilateral modification by the administering power of the constitutional
or political status of a non-self-governing territory. Accordingly, if
Respondent were subject only to the requirements of Article 73 of the
Charter (the "Declaration", as it is called), there would be no legal
inhibition against unilateral action on its part, including incorporation
or annexation of the Territory. ·
1t follows that the Respondent, uninhibited by international legal
obligations, could alter the character of the Territory so asto remove it
from the scope of Article 73 by the deviee of granting independence toit,
annexing it, or in any other manner depriving it of its character as a ARGUMENT"OF MR. GROSS
non-self-governing territory. It could. do so,_as -p say: by unilateral
àction.
It would follow then, in the Applicants' respectful submission, that
Article 73, in the light of Respondent's, express desire to annex the
_Teiritory proclaimed by it in 1945 and thereafter, could not, under the
circumstances, have reasonably been intended .by the founders of the
.United-Nations to supersede the mandates system, since it would havé
.given to Respondent a unilateral right to 'accomplish what it was openly
expressing its desire to see accomplished, that is to say, the incorporation
Of the Territory into the Union itself. And.therefore, in conclusion on
.the point of Article 73, Mr. President, in the Applicants' respectful
submission, the founding Members·of the United Nations, the pre
ponderant majority. of whom also were Members of the League of
Nations, would not have substituted for the regime of the Mandate a
declaration pursuant to which Responde11t would be free to ·carry out
its openly proclairi:ted arid avowed intention and desire unilateràlly to
altèr the constitùtional status of the Territory, without. international
superyision, ?-CCountabili,tyOf CÔnsent. . ' • . ... .. .
·. It is for these reasons and on .the basis of these considerations, which
_\verenot presented to this honourabhi Court in the 1962 proceedü:'lgs,
tha't the Applicants have ventured to:present, most respectfully, to the
Court these views which we feelmay have a bearing upon the construction
ofan important provision of the -United Nations-Charter.·
.:·By way of conclusion of this Part C 9f the Appliéants' presentation,
I should like with your permission, Mr. President, and -for convenience
of the hon9urable judges, to offer a concise summation. of the legal
éonclusionswhich.appear to the Applicants to follow from the consider
ations adduced with respect to the survival of judicial and administrative
sùpervision over the Mandate, as weil as the survival of 'Article 7,
paragraph 1, giving to the United Nations the right and duty to pass
upon requests for alteration or modification of the terms of the mandate
instrument itself; ·
·.î: The nature and purposes of 'the mandates system;~t withgether
the _history thereof, make it clear that. the obligation of ·international
àdministrative supervision, the normal security of the sacred trust, was
of the essence of the Mandate and that such ·supervision accordingly
must survive so long as the Mandate itself endures.
'.. _2No Mandatory, including Respondent, could justify retaining rights
derived from the Mandate and denying obligations thereunder. As this
horiourable Court held in 1950, in a proposition from which there was
no dissent, "The authority which the Union Government exercises over
the Territory is based on the Mandate". That'is from the rgso Opinion,
at page 133. · . . .
3· So long as Respondent retains rights over the Territory it is, by
that very fact, manifesting consent to international supervision. pis
çlaimers of any such consent are irreconcilable with the façt of its
retention of rights. Such disclaimers would vain).y attempt to exclude
the very essence of the Mandate, as this honourable Court hal? said in
its1962 Judgment.
4· Lapse of. supervision would freeze the .Mandate in perpetuity in
its present f<1rmor else, equally intolerably, would·give to Respondent
the right to annex the Territory, inasmuch as there would be no super-230 SOUTH WEST AFRICA
visory organ in existence with capacity or authority to consent to or
inhibit modification of the terms of the Mandate, in accordance with
Article 7,paragraph r, thereof.
s.This honourable Court bas upheld the continuing right of recourse
for judicial protection against asserted abuses or breaches of the Man
date. Respondent's contention concerning lapse of administrative super
vision would leave, to the Applicant States and to other States similarly
situated, as the sole and only recourse for relief for asserted breaches or
abuse of the Mandate, recourse to this honourable Court without possi
bility of recourse to the normal security through administrative super
vision. Such a state of affairs would leave the Applicants and other
States similarly situated in the position of presenting to the Court, as
regrettably is the case here, masses of detail and information which
should have been the subject of enquiry and scrutiny and action on the
part of an administrative tribunal, as the mandates scheme contemplated.
It is not; in the Applicants' respectful view, pertinent or appropriate
that this honourable Court should or need be converted into the first
recourse rather than "the final bulwark of protection", in the solemn
language of the Court's Judgment in rg62 (I.C.]. Reports I962, p. 336).
6. The events, transactions and undertakings during the period of
the dissolution of the League of Nations and the commencement of the
United Nations were consistent with the objective elements of the situa
tion arising from the demise of the League. The Mandate regimes were
maintained and stabilized until superseded by agreed arrangements of
another sort. It was hoped and expected that trusteeship agreements
would be the rule, and that the interim period or transitional period
would be a short one.
Respondent manifested its understanding and undertaking consistent! y
with the basic nature of the obligation of international supervision and
its essentiality in the mandates system.
Respondent reaffirms its-understanding and acceptance of such essen
tiality,but only in the context of its second alternative contention,
where it is adduced for the purpose of supporting an untenable conclusion
that the Mandate as a whole bas lapsed and that the rg62 Judgment
should in effect be reversed.
7· The United Nations replaced the League as the organization em
bodying the organized international community. The obligation of the
sacred trust was, in the words of this honourable Court, "laid upon the
League as an organized international community", rather thau merely
as a specifie supervisory organ with a fixed membership.
8. The United Nations is legally and practically qualified to exercise
supervisory functions over the Mandate. Its consent is necessary to
modification of the terms of the Mandate.
g. By exercising its right to refuse to submit a trusteeship agreement
for South West Africa, Respondent bas converted what was expected
and intended to be a transitional period into one of long duration.
Respondent has sought, and continues to seek, to avoid the consequences
of the fact that no agreement has been reached between Respondent and
the United Nations upon other arrangements. And Respondent persists
in its contention, made before this honourable Court in 1950, that the
Mandate bas lapsed because the League bas ceased to exist. ARGUMENT OF MR. GROSS 231
Respondent thereby maintains and renews a position which the Court,
without dissent, characterized in the rgso Advisory Opinion as one
"based on a misconception of the legal situation created by Article 22
of the Covenant and by the Mandate itself". 1 quote from the rgso
Opinion at page 132.
For ail the foregoing reasons the Applicants respectfully submit that
the Mandate as a whole is still in force, that the obligation of international
supervision survived the dissolution of the League, that the United
Nations General Assembly has replaced the League as the supervisory
organ, that Respondent is under a duty to submit to the supervision of
the General Assembly, in terms of Article 6 and of Article 7, paragraph r,
of the Mandate, and Article 22 of the Covenant of the League of Nations,
and that Respondent remains under a duty to submit to judicial pro
tection of the Mandate by the Court in terms of the second paragraph
of Article 7of the Mandate.
Accordingly, Mr. President, and Members of the honourable Court,
the Applicants respectfully request this honourable Court to adjudge
and declare on the basis and in favour of the Applicants' Submissions
Nos. r, 2, s.J,8 and g, all of which are set out in the Memorials at 1,
pages 197-198.
Mr. President, this concludes our presentation of Part C, of this
phase of the Oral Proceedings dealing essentially with legal issues,and
with the President's permission, 1 tum now to Part D, the concluding
portion of our presentation at this phase. Part D deals with the legal
basis and the legal nature of Respondent's obligations toward the
inhabitants of the Territory.
PART D
Mr. President, in the rg62 Judgment this honourable Court affirmed
its competence to adjudicate the matter of the dispute between the
Applicants and Respondent regarding the interpretation and application
of the provisions of the Mandate, and the Court, moreover, in the rg62
Judgment, held that the Applicants-
"... have a legal right or interest in the observance by the Manda
tory of its obligations both toward the inhabitants of the Mandated
Territory, and toward the League of Nations and its Members".
(I.C.]. Reports I962, p. 343.)
The Applicants' right and interest in the observance byRespondentof
its obligations under the Mandate thus being of a legal character, it
follows that such legal right and interest is judicially determinable. The
issues remaining for adjudication ofthe merits of the dispute accordingly
involve juridical interpretation of the termsand nature of Respondent's
obligations under an international instrument to which it is a party.
The elements of a legal dispute, which the 1962 Judgment of this
honourable Court held did exist between the Applicants and Respondent,
were cogently summarized by Judge Sir Gerald Fitzmaurice in his
separate opinion appended to the Judgment of the Court in the Northern
Cameroom case. The learned Judge set the matter forth as follows-
"... there exists, properly speaking, a legal dispute (such as a court
of law can take account of, and which will engage its judicial func
tion), onlyif its outcome or result, in the form of a decision of tM232 SOUTH WEST AFRICA
Court, is capable of affecting the legal interests or relations of the
; parties, in the sense of conferring or imposing upon (or confirming
for) one or other of them, a legal right or obligation, or of operating
as an injunction or. a prohibition for the friture, or as a ruling
material to a still subsisting legal situation".
That is from the_learned' Judge's opinion in the I.C.J. Reports 'I963,
at page uo. · · · ·
Mr. President, it is submitted respectfully that the dispute in the cases
at bar meets the-criteria set forth in the passage .I have just quoted
from Judge Sir Gerald Fitz_maur ipinion. · ··
Notwithstandiflg the holding of this honourable Court ïn tlie 1962
J udgment which 1have quoted at the opening of this section, Respondent'
contends that its obligations under Article2, paragraph 2, of the Mandaté
are not justiciable or, alternatively,' that if they ·are justiciable, the
scope and measure of such obligations is limifed to a test of Respondent's'
good or bad faith in the'premises. · ·
As originally set forth in the Counter-1\Iemorial, II, pages 384 to 398,
and as more fully developed in the. Rejoinder, V, pages 142 to 174;·
Respondent's alternative rriajor 'ccintèntion in this' regard ·may fairly,
we think, be summarized as follows. · ·
The first alternative contention, set out at pages 159 and following,
of the Rejoinder (V), is thât, iri the light of the asserted nature of the
obligations of Article 2; paragraph 2,of the Mandate_:_
"... . although the ob!Jgations under the .article were of a legal
nature, the Court was not intended to possess jurisdiction in regru:d
to alleged breaches thereof". (V, p. 146.)
Respondent's second alternative contention, which falls for consider
ation only if the first is rejected, is that unreviewable discretionary
powers over the Territory are invested ·in Respondent by Article 2,
paragraph 2, of t4e Mandate, ·subject only to the question whether such
powers are exercised by Respondent in good or bad faith. 1 summarize,
without.quoting,.from the Rejoinder, V, page 157 and following.
Respondent's second alternative contention, to which I have just_
referred, is formulated in what Respondent describes as several "simple
propositions", which are summarized in the Rejoinder under five headings
at V, pages 157 to 158. . ·
· These propositions may be concisely re-formulated and slightly amen
ded, as follows:
(a) The grant to Respondent of "full power of legislation and adminis
tration" in Article 2, paragraph 1, of the Mandate, necessarily
entails, in Respondent's submission, that Respondent is "required
and entitled to use its discretion asto the need for and the manner.
of the exercise of its powers". .
(b) It is of the essence of a discretionary power that an act purported
to be an exercise thereof, is not illegal unless it is contrary to sorne
legal pro:vision regulating such exercise, or exceeds the limits
expressly o'rby implication pJaced upon the power. No regulatory
provisions having been imposed, in Respondent's submission, the.
only remaining question is the nature of the limitation imposed
by ArJicle 2,paragraph 2. ·-
(c) The .only limitation placed by the Article in question on Respon
dent's discretionary power is asserted to be that such power should ARGUMENT OF MR. 'GROSS ~33
be exercised for the purpose of promoting the well-being and
progress of the inhabitants. .
•(d) Consequently, Respondent asserts, the Court can determine whether
•· an act or policy violates the Article in question only by examination
of the question whether the exercise of discretion was directed
·at the purpose of proflloting the well-being. and progress of the
inhabitants. Such an examination, Respondent contends, would be
limited to "enquiry asto the good or bad faith of the Mandatory".
"(e) The foregoing conclusion is confirmed, in Respondent's submission,
by the consideration that, "whenever there is scope for honest
difference of opinion!' as to the effect of Respondent's policy and
practices, "there are no legal norms-as distinct from political or
social views or theories-which a Court can apply for givirig prefer
ence to any of the _conflictiopin~o tontse exclusion of the others".
,. These five "simple propositions" are summarized and set forth in the
;Rejoinder (V) from pages 157 to 158. 1 believe they have been fairly
stated in context but, in any event, they will speak for themselves.
· On the basis of the premise that there are no such legal norms appli
cable by the Court,. Respondent finds confirmation of its view that
asserted breach of the Article in question can be determined only on the
·basis of a determination that such policy or practices were not intended
to promote the well-being and progress of the inhabitants. This is the
second alternative contention. . . . . .
·It will be apparent that a common denominator underlying bot&
so-called alternative contentions is the asserted absence of legal norms
or standards, according to which the Court could adjudicate upon the
legal interest of the Applicants which underlie their. dispute with Re
spondent,. which dispute this honourable Court has expressly held in
the 1962 Judgment to be a dispute of a legal nature cognizable by the
Court.
Mr. President, before proceeding to a detailed analysis of Respondent's
two so-called alternative contentions, two points properly may be noted,
concerningwhich the Applicants and Respondent appear to be in agree-
ment. ·
·First. It appears to be undisputed that all mandates, including that
one now before the Court, were conceived and executed às legally
binding instruments, as a whole and in each of their parts. I derive
this from the Rejoinder, V, page 144. Accordingly it appears to be
common cause that Respond_ent's obligations ·in terms _ofArticle· 2,
paragraph 2, are of a legal character. · ·
Secondly. It appears to be undisputed that it does not exc~e tde
power or proper fonction of a judicial tribunal to consider relevant
economie, political, ethnological, social or other factors, however com
plex-
"... whenever the judicial duty is engaged to adjudicate upon legal
rights and interests of litigants with standing to invoke the compe-
tence of the Court". •
. In respect of this second apparently undisputed proposition, it should
be noted, however. that Respondent has not made crystal clear-to the
Applicants at any rate-the exact nature of its position in this regard.
Thus, on the basis of what Respondent describes as '.'certainapparent
misapprehensions or misrepresentations on Applicants' part", Respon-234 SOUTH WEST AFRICA
dent takes occasion to emphasize what it describes as "the true nature ot
its contention in this regard". The Applicants do not think it necessary
to comment upon the characterization of the Applicants' endeavour to
summarize their understanding of Respondent's argument. It suffices to
note that by way of emphasizing the "true nature of its contention"
as it says-Respondent quotes several passages from the Counter
Memorial which were responsible in the first place for the Applicants'
confusion, if, indeed, it was confusion.
The relevant passages, quoted from the Counter-Memorial in the
Rejoinder, V, at page 143. contain the following proposition, which I
shall take the liberty of reading to the Court-
"... attention has been drawn [says Respondent] to the wide and
general provisions of Article 2. In this respect it has been submitted
that 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 might well arise if the Court were required to adjudicate on
disputes arising from an alleged breach of the obligation to '... pro
mate to the utmost the material and moral well-being and the social
progress of the inhabitants of the Territory .. .' "
This is quoted in their Rejoinder, from the Counter-Memorial, II.
page 384.
In another passage cited at V, pages 143 to 144 of the Rejoinder as
showing the allegedly true nature of its contention, the same proposition
is restated in the following form. This time Respondent was quoting
Book II of the Counter-Memorial, at II, page 184.
"Respondent is mindful of the fact that legal questions are often
encompassed or intertwined with political issues, and that the
jurisdiction of the Court, if otherw1se established, would not for
that reason be ousted. It is, however, foreign to the essential nature
and purpose of the Court to entertain matters of a purely political
character . . ."
Mr. President, careful reappraisal by the Applicants of the foregoing
quoted passages does not, it must be confessed regretfully, yet bring
home to the Applicants the "true nature" of Respondent's contention.
What gave the Applicants pause still remains a source of doubt, to
wit, the significance properly attributable to Respondent's use of the
word "purely" in bath of the passages quoted from the Counter-Memorial,
which were designed to make its position crystal clear. Respondent's
statement, that it is foreign to the essential nature and purpose of a
Court to entertain matters of a purely political character, begs a major
question at issue between the Parties.
If Respondent's obligations in terms of Article 2, paragraph 2, are
obligations of a legal nature, as Respondent appears to concede in
another context, and if, as this honourable Court has held, the Appli
cants "have a legal right or interest in the observance by the Mandatory
of its obligations" toward the inhabitants of the Territory, it must follow
that the obligations in question are not of a "purely political character".
The Applicants, of course, would agree that it is foreign to the nature
and purpose of the judicial process to pass upon matters of a "purely
political nature". If the Applicants conceived that the dispute relating
to the interpretation of Article 2, paragraph 2, were of such a nature, ARGUMENT OF MR. GROSS 235
the Applications filed with this honourable Court would have included
no submissions in relation to that Article.
The Applicants, accordingly, bave sought to penetrate the language
in which the passages quoted from the Respondent's Counter-Memorial
was couched, in order to ascertain sorne significance germane to the
issues in dispute.
In the course of such a quest, the Applicants noted, or thought they
did, that Respondent perhaps was in fact endeavouring to establish
the proposition that, in the light of the broad formulation of the sacred
trust, and the many elements which necessarily must underlie the duty
to promote the welfare and progress of the inhabitants, that the Court
as a judicial, rather than a political organ, could not and should not, as
the Respondent says in another context, "venture on to [the] terrains",
in Respondent's phrase, of "social, ethnological, economie and political
considerations". I quote from the Counter-Memorial, Il, at page 391.
From doser analysis of Respondent's contention, however, it appeared
to the Applicants that Respondent's submission that this honourable
Court should not venture on to such "terrains", was based on at !east
two antecedent propositions:
I. that the scope and content of Respondent's obligations under Article 2,
paragraph 2, were limited to a showing "that a particular exercise of
Respondent's legislative or administrative powers was not directed in
good faith toward such a purpose", i.e., the purpose of promoting to
the utmost the well-being and progress of the inhabitants; and
2. the proposition apparently antecedent to that, again, in Respondent's
words:
"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 might be followed in an attempt to achieve such a
purpose."
I have quoted from the Counter-Memorial, ll, at page 391.
Having set such a task for the Court, to consider one policy and weigh
it against any other conceivable policy which might be followed in an
attempt to accomplish the same purpose, a task which the Applicants
concede is indeed a formidable one-the Respondent reaches the conclu
sion that such a function "would be one which is, in its very nature, not
a judicial one". With that the Applicants would readily agree; in fact,
it would not be a suitable function even for an administrative organ or
any other type of agency to be in a position in which it would have to
evaluate one line of action or policy against "other policies which might
be followed in an attempt to achieve such a purpose". There is nothing
uniquely impossible of a judicial nature in such a task; it is just an
impossible task, generally, for any organ of any kind.
The Applicants, in their quest to find the "true nature" of Respondent's
contention, reached certain conclusions thereon, which may be described
as tentative, though not, it is thought, fairly to be characterized as
"misapprehensions", to say nothing of "misrepresentations".
The Applicants' conclusions centre upon the consideration that the
needle of Respondent's logic oscillates from premise to conclusion and
then reverses its direction, travelling· from conclusion backto-premise.
Respondent's line of argument seems to run as follows. Respondent's ·SOUTH WEST AFRICA
legal obligation, in terms of A2,paragraph 2,èonsists of a discretion
unreviewable excepton the basis .of Respondent's good or bad faith .in
exercising such.discretion. No legal nonns or criteria exist by which the
discharge of such a good faith obligation can be judically appraised.
Renee, the obligation is a ,"purely political" one, which is foreign to the
essential nature and purpose of a Court. Accordingly, the obligation is
not justiciable. Alternativeif it is justiciable; the only basis upon
which a Court can adjudicate a dispute concerning asserted breaches
of the obligation is a test.of.or mala fides, that is, subje~tive
motivation,or mens rea, of a sh.ifting group of individuals who .may
from time to time compose Respondent's govenunent. : . ~ ·· .
The needle,of Respondent's logic points in opposite directions at. the
same.time. ' . . . . ·.
The Court's judicial function to adjudicate disputes of.a Iegalnature
concerning the application or interpretatof Articl2, paragraph,2;
inter alia, of the Mandate, it is respectfully submitted, cannat properly
be· negated .by·stripping the obligation of aU qualities which give it· a
legal character. This i!;iprecisely the consequence of Respondent's first
alternative contention,mely that disputes concerning asserted breaches
of that Article are r-ot.justiciabJe, or .at the most,_that they are "legal
rights" which are. nen~orcea andlforw~ch there~sno re.medy.
: Respoi"~ s;c11dnatenative cont~nt iiessnce,i~ a different
wayof stating the fi.rst one;as we unders!t;_th it~u!},at any rate,
on the basis of major pre:plises which appear ta underlie bath of them.
Under the "gçod f~it test a~lterha ctonvt~~nt heren,re said to be
no legal criteria which the Court can exercise a judicial function. If
that i~not the sa,me as sayipg that the rights are not justicthele,
distinction eludes'the Applicatifs.·' ..
. The Applicants find. justification for this assertion, that the fDajor
premises underlying both o.Respon~en atenstive contention.s are
common, by ·reference bac·tdthe basis upon which Respondent em
phasizesthe so-called "true nature" of its contention in regard to the
proposition that. the obligations of Arti2,pai:"agrap2, were not
intended to be justiciable. The basis of that contention, it will be recalled,
was that a court of law could not "entertain matters of a purely political
and technical nature"(Rejoinder, V, p. 143.) ·
In elabora ting its second alternative contention, the "good faith test",
Respondent likewise argues that a Court cannat 'adjudicate upon .Re
spondent's obligations under Artic2, paragraph 2,of the Mandate,
inasmuch as the only test is one of "good faith" in. the discharge of
those obligationsand no legal criteria or norms exist by which such
"good faith" can be judically appraised. Or, in Respondent's ownwords:
"No legal criteria can be·1,1sedin such adjudicat(ll,.p. 39r.) If no
legal criterian be used in such adjudication it would seem synonymous
with saY;inth~ he dispute is nojusti~iab . le. ·. .
The d1stmct10n between the formulat10ns underlymg the contentions
appear ta .the Applicants ta be purely verbal; any difference is sa un
substantial asto be meaningless. However, Respondent does endeavour
to spin a thread from each of these so-called alternatcontentions;
and the Applicants, with .the President's permission, will now endea\'Ciur
to follow each thread to a conclusion. ARGUMD!T OF MR. GROSS 237
'.. {Public hearing of24 March I965]
Mr. President and Members of the honourable CoU:rt,at the conclusion
of our last session 1 had stated that the distinction between the formu
lations underlying both of the Respondent's alternative contentions
appeared to be purely verbal, that any· difference would be so unsub
stantial as to be meaningless. I was referring, .as the honourable Court
may recall, to the first alternative contention of Respondent that the
obligations under Article 2, paragraph 2, of the Mandate are not justi
ciable and its second alternative contention, to wit, that if such obli
gations are justiciable, they nevertheless are limited to, and measurable
by, a so-called test of "good faith" of mala or bona fides on the part of
the Respondent, in administering the Territory in terms of Article 2,
paragraph 2. . ·.
1 bad said, Mr. President, that in view of the fact that Respondent
does spin a thread from each of these so-called alternative contentions,
the Applicants now will endeavour to follow each thread to a conclusion.
With the permission of the President, 1 turn t~ ? consideration of
Respondent's first alternative contention. That contention is not ground
ed upon evidence with respect to the. history of the events and trans
;l.Ctionsattending the formation of the mandates system, in respect of
jurisdiction of the" Permanent Court to adjudicate disp1,1tesregarding
interpretation or application of Article·z, paragraph 2,of the Mandate.
Respondent's first alternative contention, rather, is that, given the
generality of formulation and the "political or technical nature· of the
obligations envisaged" (1 quote their language), it could not have been
the intent of the authors of the Mandate to·.confer upon the Court the
power of judicial review of 4-isputes involving the interpretation or ap
plication of the Article in question. 1 have quoted the phrase "political
or technical nature of the obligations envisaged" irom the Counter
Memorial, II, 'page 384 (repeated in the Rejoinder, V, p. 143). The es
sence of what 1 have said is in the cit ~adsages of the written pleadings
of Respondent.
The reasoning'adduced by Respondent in support. of its interpretation
of the intentions of theJounders of the mandates system, in respect of the
justiciability of obligations under Article 2, is not, in the Applicants'
view, persuasive. .
·.ln the first place, Respondent has devoted considerable space to an
analysis of certain comments by the late Judge Sir Hersch Lauterpacht,
with respect to international judicial niview. Respondent, however, has
quoted from this learned authority without regard 'to the proper context
of his commerits.
Judge Lauterpacht's COUfmentary "principally was concerned with
difficulties inherent in interhatiqnal judidal review of the internai
policies of States, rather than such review of governmental policies
carried out under international agreements. Although Respondent, on
the one band, concedes that "in more recent times the concept of inter
national judicial review. of internai policy is not generally regarded as
being quite as startling as forrnerly" (V, p. rs6), Respondent concludes,
on the other band, that, in the circumstances existing at the time of the
founding of the mandates system, it was· "unthinkable" that the Per
manent Court could have been authorized. to review.issues such as those
arising from alleged breaches of Article 2, paragraph 2, of the Mandate. SOUTH WEST AFRICA
Inasmuch as the issues in dispute in the present proceedings do not
relate to international judicial review of internai State policies, but to in
ternational judicial review of actions taken pursuant to international
undertakings, Respondent's discussion of international judicial review in
this context appears to be large!y irrelevan t. The international status ofthe
Territory for South West Africa, as well as the international nature of the
rules regulating the Mandate (an international institution) have been up
held by this honourable Court, as we have sought to bring out in Part
C of our presentation in this phase of the proceedings.
Contrary to Respondent's analysis, scholarly authority has found
little difficulty withthe proposition that the authors of the mandates
system contemplated that the Court would exercise powers of judicial
enforcement with respect to disputes relating to the interpretation or
the application of any or aU provisions of the Mandate, including Article
2, paragraph 2, thereof.
Thus, Professor Quincy Wright, celebrated authority on the mandates
system, comments as follows:
"Courts act (r)by nullifying illegal acts of the administration
through power of review or injunction, (2) by requiring performance
of legal duties through mandamus or other process, (3) by holding
the administration financially responsible for illegal acts, (4) by
holding officiais criminally or financially responsible for illegal acts,
(5) by perfonning administrative functions themselves. ln ali but
the last of these methods, courts have no initiative. They can act
only incidentally to the seUlement of controversies initiated by
individuals, by govemment agents, or by the State itself. The
League clearly has no functions of the fourth or fifth class in relation
to mandates ... lt would seem that the Permanent Court of Inter
national Justice might employ any of the first three methods in
litigation before it arising out of the interpretation or application
of amandate." (Mandates Under theLeague of Nations (1930), p. 194.)
Professor Wright indicates no doubt concerning the Court's power
of adjudication of disputes relating to asserted breaches of Article 2,
paragraph 2, of the Mandate. Indced, in the same work, the learned
author expresses the view that-
"League members have ri~ht insthe mandated territories not
only for the protection of the1r national interests, and the interests
of their nationals, but also for the protection of the interests of
the inhabitants of the area.
Every member of the League can regard his rights as infringed by
every violation by the mandatory of its duties under the mandate,
even those primarily for the benefif of the natives, and can make
representations which if not effective will precipitate a dispute
referable to the Permanent Court of International Justice if negotia
tion fails to settle it." (Ibid., p. 475.)
Furthermore, Mr. President, in the light of the fact that all mandate
charters have been treated by the League, by judicial tribunats, and by
scholarly authority as organic law for the mandated territories, there
is no reason to doubt that the founders of the mandates system did indeed
intend the Court to adjudicate disputes relating to the interpretation
and application of obligations embodied in the severa! mandates, in- ARGUMENT OF MR. GROSS 239
cluding Article 2, paragraph 2, of the Mandate for South West Africa.
Thus, again quoting from Professor Wright's work:
"The mandate texts or charters have been regarded by the
League and the mandatories as the fundamentallaw for the areas.
Legislation contrary to their terms has been criticized by the
League Council and usually considered void by the mandatory's
own courts. They are, it is true, documents of international law,
resting on international agreement and interpretable by the Per
manent Court of International Justice, but they are also the funda
mental constitution from which internai governing authority in the
areas derives. In each of the areas there is also a local constitution ...
These documents ... are considered subordinate to the mandate
texts, by the League organs and also in most cases by the manda
tories' courts. They usually recite that document as the basis of
authority, are interpreted in accord with it, and are void in viola
tion of it." (Ibid., pp. 516-517.)
Although neither the Permanent Court nor this honourable Court
has had occasion to exercise such powers, disputes concerning the inter
pretation and application of mandate instruments frequently have been
adjudicated in municipal tribunals.
The Applicants have cited, in this regard, the case of District Governor,
]erusalem-]affa Districtv. Murra (1925-1926, Annual Digest 46, No. 34),
in which an Ordinance of the Government of Palestine was examined
in order to consider whether it was in any way repugnant to the terms
of the Palestine Mandate. Murra's case involved the question whether
the Ordinance was consistent with Article 2 of the Palestine Mandate,
pursuant to which the manda tory power was responsible for "safeguard
ing the civil ... rights of ali the inhabitants of Palestine irrespective of
race and religion".
Respondent seeks to distinguish this case on the ground that the
provisions involved therein are "not analogons" (in Respondent's words)
to Article 2, paragraph 2, of the Mandate for South West Africa. The
Applicants submit, however, that these provisions are indeed analogons,
in relevant respects, to Article 2, paragraph 2,of the Mandate. Like the
latter Article, the provision of the Palestine Mandate in question was
humanitarian and protective in purpose, general in formulation, and
involved day-to-day administration of the mandated territory, and
accordingly a wide degree of discretion on the part of the mandatory.
Similar considerations apply with regard to Altshuler's case, cited by the
Applicants in our Reply, IV, at pages 480-481.
The case of Winter v. The Minister of Defence, a case coming from the
South African Appellate Division of the Supreme Court, is likewise rele
vant to the issue in question here. The Winter case dealt with an issue
arising under Article 2, paragraph 2, of the Mandate for South West
Africa. (IV, p. 481.)
Although Respondent seeks to distinguish Winter's case on the basis
that the Court in that case referred to the reasons for the issuance of the
Proclamation without conducting an enquiry into questions of the
soundness or justifiability thereof, the Supreme Court of South Africa,
Appellate Division, said:
"The Proclamation in question ... recites as one of the reasons
for its issue that, under the circumstances therein set out, the SOUTH WEST AFRICA
ordinary law of the land is inadequate to enable the Government
to fulfil its duty in safeguarding the welfare of the inhabitants and
in ensuring the security of the State. That being so, it cannot in my
opinion be said it is in confl.ict with the duty to promote the well
being of the inhabitants of the territory." (1938-rg4o Ann. Dig.
rg8. r939.) . .
The Court in that case, therefore, did not refrain from adjudicating
the issue whether legislation was in confl.ict with the obligations of
Article 2, paragraph 2, of the Mandate. The Court expressed or indicated
no doubt concerning the justiciability of Article 2, paragraph 2. The
Court did not intimate a view that it was in any way, in Respondent's
language, "foreign to the essential nature and purpose of a court to
entertain matters arising under that Article".
The concept of judicial review of international obligations was familiar
to the founders of the mandates system. One illustration among many
is to be found in the area of State responsibility for deniai of justice.
This legal doctrine often had been applicd to policies and practices of
executive and legislative authorities, as weil as to decisions of judicial
tribuna~. ·
Inasmuch as the doctrine of deniai of justice applies to treatment pf
aliens, international statal responsibilities often are involved in the
application of the doctrine. International judicial review of governmental
polides and actions with respect to aliens involve considerations 'oflaw
and of justiciability analogons in important respects to governmental
policies and practices affecting inhabitants of mandated territories.
There is, accordingly, no substantial basis for Respondent's assertion
that it was "unthinkable" that .the authors of the mandates system
should bestow upon the International Court power of judicial review
over governmental policy in terms of obligations such as those embodied
in Article 2, paragraph 2, of the Mandate. . · .
Applicants also have set out, in the Reply, examples of the exercise of
the power ofjudicial review over governmental acts and policiestaken witQ.
regard to broadly formulated international obligations, including those
encompassing political, economie, ethnological or social considerations
ifand when such considerations are relevant to a legal dispute concerning
the interpretation or application of international undertakings. It is,
of course, in this connection and for this purpose that the Applicants
also cite decisions of high-domestic tribunats, includihg, inter alia, the
decision of the United States Supreme Court in the case of Brown v.
Board of Educatimt, which has been discussed in this same context in
Part A of the Applicants'. presentation in this phase of thé Oral Proceed-
ings. ·
As has been noted, the Applicants conceive the Brown case to be
relevant to the proposition that courts do not hesitate to "venture onto
[the] terrains" of "social, ethnological, economie or political" matters,
in Respondent's words (Il, p. 391), when such considerations are relevant
to legal issues in dispute. That ~as ehows, moreover, that courts venture
upon such "terrains" when necessary to interpret broadly formulated
constitutional-type obligations, and that in.doing so they apply current,
contemporary standards rather than the presumed intentions of the
parties at the time that the relevant obligations were conferred and
accepted. These points are brought out, Sir, in our Reply at IV, page 515.
In this context the Respondent comments as follows:· ARGUMENT OF'MR. GROSS 241
"Applicants in the Reply also refer to the testing power exercised
by the Supreme Court of the United States of America in deter
mining the legality or otherwise of measures alleged to contravene
the provisions of the Constitution. There is, however, no reason to
think that the authors of the Mandate System intended to bestow
a similar power on the Permanent Court." (V, p. 150.)
Mr. President, needless to say, the Applicants had no such point in mind
by their citation of the Brown case as weil as of other cases of domestic
tribunats.
ln the arca ·ofinternational jurisprudence the Applicants also cite in
their Reply severa! examples, including .the minorities treaties.
Respondent seeks to distinguish between the judicial interpretation
of such treaties, and of the relevant provisions of the Mandate, on the
ground that no general grant was made· in the minorities treaties pursu
ant to which ali Members of the League of Nations could invoke the
Court's jurisdiction. Respondent seeks also to differentiate the two sys~
tems on the ground that the minorities treaties were imposed on con
quered nations whereas, in Respondent's language, the mandates were
conferred "upon the conquerors by themselves". From this, Respondent
concludes that it was unlikely that the great powers would voluntarily
have granted legal interests and competence to invoke jurisdiction to
·a wider number of States in respect of mandates than in respect of
minorities treaties. This is brought out in Respondent's Counter-Memo
rial, Il, page 187. . .
Mr. President, an answer to such a contention was given as long ago
as 1930, again by the leamed scholar whom I have quoted, Professor
Quincy Wright. Professor Wright, in commenting upon the minorities
treaties, wrote in 1930-
.....the system was 'intended to prevent that questions conceming
minority protection should acquire the ch;aracter of a dispute be~
twecn nations', and 'to insure that States with a minority withiri.
thcir borders should be protected from the danger of interference
by other powers in their internai affairs'. These reasons hardi y apply
to the mandated areas and also the compromissory clauses of the
mandates evidently foresee the possibility of disputes between a
mandatory and a League Member in respect to the mandatory's
application of his mandate ... " (Mandates Under the League of
Nations (1930), p. 522, footnote 74a.) ·
Inasmuch as the minorities treaties system was peculiarly concerned
with preventing disputes concerning minorities from acquiring the
character of a dispute between nations, a Jimited right of judicial recourse
was an appropriate method of achieving that objective, of keeping to
a minimum the international disputes which might arise with regard to
this question.
No such consideration, however, applies to the mandates system. The
compromissory clause of Article 7 conferred upon ali Members the
capacity to seek judicial recourse in respect of "any dispute whatever"
relating to the interpretation or application of the Mandate in the cir
cumstances envisaged in that Article. Had the considerations underlying
the restricted grant of the right of judicial recourse in the minorities
treaties been regarded as relevant to the mandates system, clearly the242 SOUTH WEST AFRICA
compromissory clause itself would have been couched in similarly re
strictive terms.
The Applicants also have referred, in the Reply, to the Constitution of
the International Labour Organisation, as well as conventions concluded
thereunder on the issue of justiciability.
Respondent seeks to distinguish between justiciability of disputes
arising under the conventions of the I.L.O., as well as its Constitution,
and disputes arising under Article 2, paragraph 2,of the Mandate, on
the ground that the International Labour Organisation Constitution
and conventions thereunder are not "motivated solely by a humanitarian
interest", but that in addition international regulation of labour con
ditions within a State has a bearing upon international competitive
advant~ oer disadvantage.
On this basis Respondent concludes that it is not surprising that the
I.L.O. Constitution provides means whereby a State can enforce com
pliance with conventions to which both it and an allegedly non-comply
ing State Member are parties. (II,pp. r89-190.)
With respect, the Applicants conceive such a purported distinction
between the I.L.O. system and the mandates system as a captious one.
The I.L.O. Constitution made manifest the humane objectives of
that system and this was made clear in the separate opinion of Judge
jessup appended to the rg62 Judgment (l.C.]. ReportsI962, pp. 426 ff.).
The learned judge referred to the complaint brought by the Republic
of Ghana against Portugal, alleging non-observance by the latter of
Convention No. ros. the Abolition of Forced Labour Convention, 1957.
No consideration of competitive advantage or disadvantage between
Ghana and Portugal was relevant to any issue in that proceeding.
Respondent also seeks to distinguish the case of the Customs Régime
between Germany and Austria, cited in the Reply at IV, pages 485-486.
The question before the Permanent Court there was whether a proposed
customs union was consistent with an international obligation under
taken by Austria not to "violate her economie independence by granting
to any State a special régime or exclusive advantages calculated to
threaten this independence". Respondent argues that the Opinion of
the Permanent Court was not based upon an assessment of future polit
ica! contingencies, as asserted by the Applicants, but "purely on the
contents of the régimecreated by the Austro-German Protocol of March
rgth, 1931". (V, p. rsr.)
The distinction sought to be drawn by Respondent between these two
situationsis unsubstantial. Judicial consideration of the question whether
a customs regime would be a breach of Austria's obligation not to "violate
her economie independence" clearly encompasses issues heavily charged
with political, economie as well as technical considerations. The Court,
nonetheless, perceived no obstacle to justiciability of the question in that
case, which is the consideration relevant to Respondent's contention at
issue in the context of the present discussion.
The Applicants also refer in the Reply to the European Convention
for the Protection of Human Rights and Fundamental Freedoms. Re
spondent seeks to distinguish that Convention from Article 2, paragraph
2, in the aspect under discussion here, on the ground that the broadly
formulated rights under the Convention are-in Respondent's words
"defined with reasonable exactness". Respondent, however, offers no
comment with regard to the Applicants' reference to the case of Lawless ARGUMENT OF MR. GROSS 243
v. lreland, adjudicated by the European Court of Human Rights. In
that case, the tribunal held that an Irish Proclamation of 1957 was
justified by a "public emergency threatening the life of the nation".
It would be difficult, Mr. President, to find a clearer example of inter
national judicial review of governmental action encompassing political,
as weil as social questions.
In the premise then, Mr. President, it is not at all surprising, given the
numerous examples and wide knowledge and acceptance of the principle
of international judicial review of governmental policies, including
those encompassing political, economie and technical aspects, that the
authors of the mandates system not only should have bestowed a like
power upon the Permanent Court, but that they did so without objec
tion and even without discussion. Indeed, in the light of the nature and
purposes of the mandates system-a novel institution embodying the
sacred trust of civilization-omission of the right of judicial recourse
would have struck at the very heart of the mandates system. Such a
result would have been, indeed, unthinkable.
Mr. President, with your permission, I turn now to a consideration
of Respondent's second alternative argument which is set out at V,
pages 157 to 174 of the Rejoinder. As I have noted already, Respondent's
second alternative contention, in effect, is that the only limitation upon
the discretionary powers assertedly granted to Respondent in Article 2,
paragraph 2, of the Mandate, is the requirement of good faith in the
exercise of such powers.
Ihave referred earlier, Mr. President, to the Respondent's five so-called
"simple propositions" in which Respondent has formulated its second
alternative contention. These are set out in the Rejoinder, V, pages 157
to 158.
Propositions (a) and (b) appear unobjectionable to the Applicants,
subject only to the cautionary comment that Respondent's reference in
proposition (a) to "discretion" does not imply that such discretion is
not reviewable on the basis of objective criteria and legal nonns, and
subject to the comment that Respond~n rtf'rsnce in proposition (b)
to the absence of "regulatory provisions" does not exclude the inter
national regulations of the mandates system itself.
Propositions (c) and (d), however, are destructive of the sacred trust
and rob the obligation to submit to international supervision of any
meaningful reality.
Respondent's proposition (c) is formulated in its own terms as follows:
"The only limitation placed by Article 2, paragraph 2, on the
discretionary power vested in Responden t was tha t such power
should be exercised for the purpose of promoting to the utmost
the well-being and progress of the inhabitants of the Territory."
(V, p. ISJ.)
Respondent's insertion in the formulation of the phrase "for the
purpose of promoting" is, of course, a gratuitous gloss on Article 2,
paragraph 2, and vitally alters its character. The actual terms of that
Article embody no such express or implied limitation, contain no refer
ence to the purpose of promoting, but state a flat and unqualifi.ed
obligation that Respondent "shall promo te to the utmost", and so
forth, in the words of the Article. In view of that fact, it may be fair to
comment that Respondent's formulation is not merely a gratuitous244 SOUTH WEST AFRICA
gloss, but implies a unilateral and off-hand modification of the tenns
of that provision.
The consequence of such an amendment of Article 2,.paragraph 2,
injecting the concept of "for the purpose of", is made explicitly clear in
Respondent's proposition ( d) which is fonnulated in the following tenns:
"Consequently the Court can determine whetlier a legislative or
administrative act or policy constitutes an infringement of Arti
cle 2, paragraph 2,only by examining whether or not the exercise
of discretion involved in such act or policy, was directed at the·
purpose of promoting to the utmost the well-being and progress
of the inhabitants. Such an examination would, in the circùm
stances, involve an enquiry as to the good or bad faith of the
Mandatory." (V, pp. ISJ-I58.)
Therefore, the amendment of Article 2,paragraph 2, implicit in P,ropo:.
sition (c), is a vehicle for importing into the Article the good or bad
faith test, as is made explicitly clear in proposition (d) which I have
just quoted.
But, Mr. President, Respondent's plan for re-fonnulating Article 2
includes the elimination of any vestige of meaningful international
accountability which inight survive propositions (c} and (d), by reference
toits next, fifth, "simple proposition" (e), which 1 read in Respondent's
()WU tenns:
"The conclusion set out in sub-paragraph (d} is strengthened by
the consideration that, whenever there is scope for honest difference
of opinion (as there often must be) on the question whether a
particular legislative or administrative measure or policy does or
does not, or will or will not, in fact promote well-being and progress
to the utmost, there are no legal norms as distinct from political
or social views or theories-which a Court can apply for giving
preference to any of the conflicting opinions to the exclusion of the
others. Consequently, the only legally prescribed basis upon which
the Court can determine whether the Article has. been violated, is
to enquire whether such measure or policy was intended to promote
well-being and progress to the utmost." (Ibid.)
The foregoing proposition is said by Respondent to strengthen the
conclusion set out in proposition (d), but it appears to embody both
cause and effect in one package. ·
Having posited an interpretation ·of Article 2, paragraph 2, which
involves amending it in a substantial respect by importing gratuitously
the reference to "for the purpose of", and deducing from such unilateral
amendment a limitation of supervision to an enquiry as to good or bad
faith, Respondent then concludes that no legal nonns exist by which a
court can judge Respondent's exercise of good or bad faith. The last
blow, indeed, in proposition (e}, need not have been struck, inasmuch
as the Article had already been drained of vitality by force of propositions
(c) and (d) .
. l\fr. President, Respondent's contention that the scope and content
of the obligation entrusted to Respondent in tenns of Article 2, para
graph 2, is to be measured by its so-called good or bad faith in the
exercise of discretion under that Article, embodies its own built-in
reductio ad absurdum.
Without any purpose or intimation of comparison, or suggestion of ARGUME:ST OF MR. GROSS 245
analogy to.facts in the cases at bar, the lesson of history teaches that
the grèatest excesses of policy, and the most reprehensible doctrines,
frequent! yare propqunded· and executed with professions of good faith
and lofty purpose. Indeed, human experience and ali of history shows
that when. sincerity of. purpose is carried to unreasonable lengths, or
improper ends, it isdten difficult to distinguish from obsession. -
If governmental policies. and actions merely are to be weighed upon
the· scale of ·a subjective intent of persans charged from time to time
with official responsibility, and if no objective tests are relevant for the
appraisal of the actual consequences of such policies and actions, it
would necessarily follow, we submit, that organs of administrative
supervision and of..judicial protection would confront the necessity of
passing upon ·the conscience, rather thaR upon the conduct, of the
authoritiesconcerned. With ali respect and serious intendment, Mr.
President, it is submitted that such a task is neither an appropriate rior
feasible one, on the·terrestriallevat any rate, for any tribunal.
Moreover, as also has been noted, the Applicants would be at a loss
to know how to marshal eVidence tendingto prove subjective motivation
of bona fides or mala fides in respect of carrying.out a f10licywhich, in
theApplican visw, is inherently and demonstrably ilhcit in terms of
the obligations of the Mandate itself. Proof of subjective motivation of
that sort would;·in any event, if relevant at ali, be presumably based
upon the examination into the views of individual persans, ·whose
testimony on the point could not but be influenced·bypriorijudgments
peculiar to themselves. •
There is, indeed,' an ·imperative logic underlying Respondenes propo
sition(e),namely that there are no legal norms by which such subjective
motivation could ·be judicially appraised or-Respondent might have
added-administratively determined, for that matter. The only lêgal
concept relevant in this context, as the Applicants have submitted,
would .be the \~niver ccepltd yprinciple .that persons or eiltities
~ust be presumed to intend the reasonably foreseeable consequences of
their policies.and actions. It is only in this· sense that the Applicants
l:lave used the word "intent", or any qther ward indicating or implying
motive or purpose. · ·
. In the Counter-Memorial Respondent seeks to attribute. to the Appli
~ant the contention that. Respondènt's' policies and practices are im
permissible in term ~f.Article 2, paragraph .2.because they are im
properly motiv.atéd.Respondent finds words and phrases-in our respect
fui submission,. over-reaches for them-in its effort to attributo the
Applicants what is essentially a part of Respondent's fundamental case.
In the Reply the Applicants have sought to make clear, and now reaffirm,
that Respondent has misconceived the purport of the Applicants'
relevant submissions in this regard. To the contrary, the Applicants
have submitted, and continue to submit, with respect,. that· the legal
nature and consequences of Respondent's policy and practices of apart
heid in the Territory, as described in the Applicants' pleadings, may,
and should be, adjudicated by this honourable Court on the basis of
objective criteria,eflecting widely accepted standards of a political,
moral and scientific -Character, as well as universally accepted and
minimum international legal norms, which are denved from, and
based upon, such standards. Such standards and legal norms are elab
orated by the Applicants in their Reply. These are relevant, of course, to SOUTH WEST AFRICA
both of Respondent's so-called alternative contentions-equally relevant
to the contention of non-justiciability as to the good faith test. Such
legal norms, Mr. President, do not partake of a "purely political char
acter", in Respondent's phrase. They are, to the contrary, legal obli
gations of the most compelling nature, the application of which is essential
to the accomplishment of the sacred trust embodied in Article 2, para
graph 2, which is the very heart of the mandates system and in the
absence of which the Mandate for South West Africa would have little
real meaning or interest to the organized international community.
In the Reply, at IV, pages 268 and following, under the heading
"Analysis of Respondent's Policy", the Applicants set forth certain
major premises underlying Respondent's policies and practices of apart
heid. Such premises are derived entirely from Respondent's pleadings.
Respondent's premises, which are undisputed in the record, include,
inter alia, such basic assumptions as that: "Differences between the
groups concerned are of so profound a nature that they cannot be wiped
out", and that it is "desirable to accept the position as it is and not
put idealism before realism" (IV, pp. 271-272). This is in respect of and
in purported justification of, along with other explanations, the policy
and practice described by the Applicants of allotment to individuals of
status, rights, burdens and privileges on the basis of membership in a
group without regard to individual capacity, quality, merit, or potential.
I refer the honourable Court to the Reply, IV, at pages 268-271.
The Applicants draw their conclusion on the basis of the premises and
assumptions which are essentially undisputed, out of the mouths of
Respondent's highest officiais and largely quoted in Respondent's
written pleadings, and on the basis of public laws, administrative
regulations, and admitted practices. The conclusion of the Applicants is
as follows:
"... Such a premise of govemmental action, and the policy of
apartheid by which it is effectuated, are furthermore repugnant to
the generally accepted political and moral standards of the inter
national community, as weil as violative of norms, as accepted by
international custom and as reflected in the general principles of law
universally recognized by civilized nations.
Such assumptions and their implementation, moreover, are
neither factually valid nor logically tenable. Such 'differences' as
may be inherent in 'ethnie classification' are in no way relevant to,
nor can they properly be advanced to justify, deniai of equality of
opportunity based upon individual merit or capacity, or deniai of
equality before the law, or of fundamental rights and freedoms."
(IV, p. 272.)
At this stage of the Oral Proceedings, Mr. President and Members of
the honourable Court, the Applicants forbear from engaging in a lengthy
exposition, indeed any exposition at ali, of the practices and policies of
which complaint is made, and with respect, Mr. President, theApplicants
would reserve the right to revert to these considerations of a legal nature
in the contcxt of the discussion of facts which the Applicants understand
will follow conclusion of this phase of the Oral Proceedings.
In order to obviate any possible source of confusion on this matter,
the Applicants respectfully draw to the Court's attention the expanded
discussion by the Applicants in the Reply with respect to both these ARGUMENT OF MR. GROSS 247
clearly enunciated concepts, as summarized in the passage I have quoted
from the Reply, IV, at page 272.
The Applicants conceive that legal principles and legal norms are
based upon, and reflect, human experience and the human condition.
In the celebrated maxim: "experience is the life of the law."
The standards referred to m the Reply are of course of a political,
moral and scientific character. They are set out with numerous illustrative
examples in the Reply, in the following contexts.
At IV, pages 293 to 302, the Reply sets out representative statements
of official governmental positions of a dozen representative States,
Members of the United Nations, reflecting the views of governments
in all parts of the world, on the subject of Respondent's policy and
practices of apartheid. Of course, the policy and practices which are
the subject of complaint in these proceedings relate solely to those
applied by the Respondent in the Territory of South West Africa. It is,
however, not disputed in the record of these proceedings that such
policies are, on Respondent's own showing in its written pleadings,
substantially identical with those in the Republic of South Africa itself,
and indeed, in numerous contexts in its written pleadings, Respondent
refers toits policies in the Republic by way of justification or explanation
Qf its policies and practices in the Territory. The Applicants in no way
intend to present to this Court policies pertaining to the Republic of
South Africa itself,but it is respectfully pointed out that the Respondent
bas, in its own written pleadings, made repeated references to the
policies pursued by Respondent in the Republic of South Africa itself
and has sought to draw inferences therefrom. Numerous examples will
be further presented to the Court in connection with the discussion of
factual issues.
On this basis, the views of governments, representative examples of
which are set forth in the Reply at IV, pages 295 to 302, are relevant to
issues in these proceedings, even though not ali of them relate explicitly
to Respondent's policies in the Territory of South West Africa.
ltdoes not appear to the Applicants, Mr. President, to be warranted
in the present discussion of the essentially legal issues to burden the
Court with extensive quotations from such official views of governments.
It may suffice-with one or two illustrations added, if 1may be permitted
to quote them-it may suffice to note that their uniform tenor reflects
a criticism and condemnation of the policy and practices of apartheid
which can perhaps be most fairly described as revulsion.
With respect to the Territory itself, for example, the Representative
of the United States to the Fourth Committee of the General Assembly
of the United Nations reflects the official view of the United States
Government, with respect to the policy in question, as follows, inter alia:
"By extending the apartheid laws to South West Africa the
mandatory power is, in the view of my Government, clearly delin
quent in its obligations to the international community and to the
population of South West A/rica. These obligations are set forth
explicitly in Article of the mandate which states that South Africa
'shall promote to the utmost the material and moral well-being
and the social progress of the inhabitants of the territory'.
Mr. Chairman, my Delegation believes not only that there is neither
legal nor political basis for the apartheid laws in South A/rica; there
is also no moral basis for such laws anywhere in the world, let alone SOUTH 'WEST AFRICA
in a territory such as South West Africa which bas a clear inter
national character, which was given to the .goveiJ1ment of South
Africa as 'a sacred trust of civilization' ." (IV, p. zg6.)
The Representatives of"the United Kingdom to the Fourth Committee
of the United Nations General Assembly reflect similar· views on the
part of their Govemment. Thus, in a statement to the Fotirth Committee
at the Seventeenth Session of the General Assembly, the United Kingdom
Representative stated, as reftected in the summary record of the pro-
ceedings: ·
". , : apartw ~asemiorally abominable, intellect'ually..grotesque and
spiritually. indefensible. Thus, the Government of South Africa was
sufficiently to be blamed for the existence in South West Africa
of a· situation in which the rights of the individual were set at
nought unless his skin was of the right colour." (IV,p. zg8.).
It Înay be noted, Mr. President, parenthetically, that Respondent in
its Rejoinder characterizes the foregoing statement by the British
.delegate as"perhaps the most offensive passage quoted by the Applicants
under the heading 'Viewsof Governrnents' ". That is from the Rejoinder,
V, at page 383. ·
Mr. President and Members of this honourable Court, the Applicants
hardly consider it necessary to assure this honourable Court that their
purpose in citing the views of Govemments was conceived to be part
of their duty to inform the Court conceming the political standards
by which widely representative govemments of "the world view and
measure the policy and practices at issue in these proceedings. If Re
spondent wishes to, oris in a position to, clarify the matter further by
informing this honourable Court of views of govemments, less "offensive"
than those views available to the Applicants, Respondent of course bas
.the privilege of doing so. The Applicants do not deem it necessary to
draw inferences from the fact that Respondent has, in its written
pleadings, cited no views of govemments. . .
Another Representative of the United Kingdom to the Fourth Com
mittee refiected views of his Government again as follows:
"The people and Govemment of the United Kingdom were
opposed to apartheid or to racial discrimination wherever they
·were practised; they considered them to be rèprehensible moral!y
and calamitous politically. The equality of men before the law was
a fundamental principte upon which the democracy ofBritain rested ...
The Government of the rfnited Kingdom was opposed.to the policy of
apartheid wherever itmight be found." (IV, p.zg8.). ·.
Finally, the Delegate of lreland to the Special Committee of the
Sixteenth General Assembly stated, inter alia: .
"The unanimous repugnance of the civilized world to 'apartheid'
as reflei:ted in the Committee from year to year, was in itself a con
demnafion of the inherent unwholesomeness of 'apartheid'.(IV,p. 300.)
This suffices, 1 believe, Mr. President. Statements of similar import
are quoted in the Reply on the part of the Governments of France,
Norway, Poland, Malaysia, Greece, China, Mexico, the Netherlands,
Pakistan. These are cited at IV, pages 298 to 302, and are only a handful
of the many which could have been cited in the Reply as reflecting the
views of govemments. ARGUMENT OF MR. GROSS 249
Mr. President, if virtuallyanimous views, officially expressed on the
part of govemments, widely representativethroughout ·the world, do'
not reflect currently acceptcd political standardswith regard to the
question at issue here, it is difficult to know where to find sources for
such standards. ·
- In addition to universally accepted political and moral .standards,
as reftected in the official views to which 1 have referred, the Applicants
likewise setut in the Reply, at IV, pages 305-312;_the weight of con
temporary scientific authority in relation to patterns of human behaviour
relevant to the premises underlying Respondent's policy of apar~heid,
as weil ~ to the practic_esby which such policy is effectuated.
Respondent's premises are couched for the most part ~the form of
generalizations, and are set forth, inter alia, at pages 302 to 305 of the
Reply. 1 refer to Respondent's premises as they formulate them. ,.
·Among the clearest e.xamples in Respondent's writteri pleadings is the
statement of the rationale of its policy of educational apartheid, which
is set forth in Book VII of the Counter-Memorial atillpages 527 to 530
and as quoted in the Reply at IV, pages 266 to-261.have already drawn
the Court's attention to this illuminative passage in Part A of this phase
of the Oral Proceedings; that may be found in the verbatim record,
page ns. supra.
As fairly summarized and excerpted in the Reply, the basic conten
tions of Respondent which are expressed in pages of the Counter-Me
morial, which 1 shall cite, are the following and are in the Applicants'
formulations with occasional q.otes from Respondent: .
"... that historical circumstances have creatadsituationin which
members of different 'groups' prefero 'associate with members of
their own group'; that 'many Europeans, in ail' probabilitthe
vast majority, are not prepared to serve in·positions where Bantu
are placed in a position of authority over them'; that these are
'social phenomena which existas facts, independently of any govem
mental policy, legislation or administrativpractices'; and :what
ever the moral rights or wrongs pertaining to them in particular
situations,here can be no deniai that such group reactions existas
facts of which due cognizance must needs be taken by any realistic
govemment' .". (IV, pp. 302-303.)
In their analysis of scientific authority,the Applicants show that
basic to Respondent's.premises is the primary contention that its "policy
is'not based on people being inferior but being different". (11,-p. 471.)
Mr. President, the preponderant weight of world scientific authority,
as set forth inhe Reply, holds that "no scientific evidence supports an
assumption that groups or races differ innately". (IV, p. 306.) The alleged
''difference", in Respondent's words, between "people" in South West
Africa is not defined by Respondent in any meaningful terms, other than
on a basis which _serves to further its pre-determined racial policies,
althou purporting to justify~nd requires~c yolicies.T~epol~ cfy
aparthe1d and the pracüces wh1Cheffectuate lt,m the Applicants sub~
mission, are falsely premised on a perceived difference, from a legal
point of view, between racesand groups as such. Such an official policy,
in the Applicants' view, is irreconcilable with any scientific premises
accepted by the overwhelming weight of scientific authority.
ln their Reply the Applicants also summarize a second premise of SOUTH WEST AFRICA
Respondent's policy underlying apartheid, and this the Applicants
describe as the "contention of inevitable 'frustration' if all inhabitants
of the Territory are accorded equal opportunity". (IV, p. 306.)
The concept of "inevitable frustration", if it may be called that for
simplicity, is expressed in statements by Respondent's highest officiais,
quoted by Respondent itself. For example, Respondent's Prime Minister
has declared that a-
"... class of educated and semi-educated [Natives] ... has leamed
that it is above its own people and feels that its spiritual, economie
and political home is among the civilized community of South Africa,
namely the Europeans, and feels frustrated that their wishes have
not been complied with".
Or again,
"By simply blindly producing pupils who were trained in Euro
pean ideas the idle hope was created that they could occupy posi
tions in the European community in spite of the country's policy
[ofapartheid]." (VI, p. 41.)
The Applicants show, in a section of the Reply analysing the views of
scientific authorities, that-
"The basic fallacy of Respondent's contention consists in the
scientifically demonstrable fact that the greatest 'frustration' is
caused by deniai of equal opportunity inherent in the policy of apart
heid itself." (IV, p. 306.)
Again Respondent posits the premise that as a "realistic Government",
it must support what it describes as existing "group reactions". This is
set forth, inter alia, in the same section of Book VII of the Counter
Memorial to which I have previously referred, in the following terms:
"... [these] social phenomena [namely 'group preferences' and
'group differences', together with 'inevitable frustration'] ... exist
as facts, independently of any governmental policy, legislation or
administrative practices-as indeed they manifest themselves, to a
greater or lesser extent, in mixed or plural communities throughout
the world". (ill,:p.528.)
"\Vhatever the1r exact nature or causes, and whatever, the moral
rights or wrongs pertaining to them in particular situations, there
can be no deniai that such group reactions exist as facts of which
due cognizance must needs be taken by any realistic govemment."
(Ibid.)
Applicants concur that "due cognizance must needs be taken" of such
"group reactions" indeed, but not it the sense or towards the end which
mark Respondent's policy and practices.
In all civilized societies there prevail standards of conduct and legal
norms of governmental policy which are directed towards amelioration
and adjustment of the "social phenomena" to which the Respondent
refers, rather than towards their perpetuation in the framework of
"group preferences" accorded to a minority of the population, or indeed
a majority, for that matter. The overwhelming weight of scientific au
thority in regard to this question is set forth at pages 308 to 312 of the
Applicants' Reply (IV), and such authority shows, in our respectful
submission, that- ARGUMENT OF MR. GROSS
inasmuch as attitudes of prejudice, discrimination and fear
are generated by individuals through their social structure and
processes, such attitudes likewise can be modified through the
social structure and processes·and, in particular, through govem
mental action". (IV, p. 308.)
And, as 1 have said, Mr. President, the Applicants respectfully reserve
the right tore vert to these considerations in the context of the illustrative
and elaborative discussion of the essentially fact issues now being deferred
at this phase of the Oral Proceedings.
As 1 have stated, Mr. President, the Applicants, in the Reply at IV,
pages 493 and following, have also set out the legal norms which, in the
Applicants' respectful submission, are relevant and applicable to judicial
determination of the nature and scope of the admittedly legal obligations
of Respondent in terms of Article 2,paragraph 2,of the Mandate.
The attention of this honourable Court is respectfully drawn to the
fact that in their Memorials, at l, page 107, the Applicants state, inter
alia, as follows:
"It is submitted that the terms of the second paragraph of Article
2 of the Mandate and Paragraph 1 of Article22 of the Covenant ...
read in the light of the terms and stated purposes of Chapters XI,
XII and XIII of the Charter, establish clear and meaningful norms
marking the duties of the Mandatory. ln accordance with these
legal norms, the Mandatory's duties to safeguard and promote the
'material and moral well-being', the 'social progress' and the 'devel
opment' of the people of the Territory must reasonably be construed
to include certain objectives specified in the Memorials." (1, p. 107.)
As the Court will note, this includes specifie reference to "clear and
meaningful norms", which are described as "legal norms".
In the Counter-Memorial, Respondent refers to the foregoing quoted
passage from the Memorials and quotes the phrase "clear and meaning
ful norms marking the duties of the Mandatory". (Il, p. 395.)
However, in the Counter-Memorial in that context, Respondent essen
tially limitsits discussion of the point involved to the proposition that
the principle of pari materia is not justified as an aid to interpretation in
the present case.
Respondent does not discuss în that context the Applicants' basic
contention that the relevant provisions of Article 22 of the Covenant and
of the Mandate establish clear and meaningful norms of a legal nature
marking Respondent's duties. The reference is made in the Memorial to
such norms "read in the light" of relevant chapters of the Charter of the
United Nations.
In the Counter-Memorial, nevertheless, Respondent has set out an
extensive "Statement of the Law", as it is called, in which it seeks to
establish, inter alia, that the only question before the Court in respect of
Article 2 is "one of intentions, or purpose, or good faith", in the words
of the Counter-Memorial (Il, p. 392). Respondent elaborates the point by
the conclusion that-
"Whatever the Court may think of the merits of a particular
legislative or administrative act, practice or policy, if it was devised
and performed or practised in the exercise of the Mandatory's
.discretion with the bona fide intention of benefiting the inhabitants
of the Territory, it would not constitute a violation of Article 2 of
the Mandate." (II, p. 392.)25'2 SOUTH WEST AFRICA
·. It .is readily ·apparent, Mr. President, that the foregoing passage,
quoted from the Counter-Memorial, embodies the ,contention more fully
elâ.borated in the Rejoinder in Respondent's soccalled."second alternative
contention", to which reference has been made. Furthermore, as I have
previously stated, Respondent in the Counter-Mefi.lorial has contended:
"The Court is a judicial organ and can accordingly not come to
.decisions otherwise than in accordance with 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
might be followed in an attempt to achieve such a purpose. In arder
to arrive at a decision, the Court would thereupon have to decide
which policy it considers best. The Court's function in so deciding
would be onewhich is, in its very nature, not a judicial one. No legal
criteria can be used in such adjudication. -The decision can onJy be
based on social, ethnological, economie and political considerations."
(Il,p. 39L)
As I have respect fully submitted, any· distinction between the ma
jor premises underlying Respondent's conclusion in the passage just
quoted, in the context of its second alternative contention, is indistin
guishable in any meaningful sense from the premises underlying Re
spondent's first alternative contention that its obligations under the
Article are not justiciable. _·-
. However, in the light of Respondent's contentions in the Cou'nter-
1\Iemorial in respect of the absence of relevant legal norms, and its deniai
of justiciability ofits legal obligations under the Article in question, the
Applicants· conceived it to be appropriate, and indeed necessary, in the
Reply, to make clear the respect in which Respondent's contentions,
as aforesaid, were erroneous and untenable. To that end, as a proper
function of their Reply (IV), the Applicants have set out at pages 491 to
sro thereof relevant legal norms or legal standards which may, and
should, in our respectful submission, be applied by this honourable
Court in adjudicating the legal dispute concerning the nature and scope
of Respondent's admitted legal obligations in terms of Article 2, para
graph 2. In the Reply the Applicants introduced their analysis of the
relevant minimum legal norms by defining- the sense of the principal
tenns used in the analysis. Thus, in the words of the Reply: -
"In the following analysis of the relevant legal norms, 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, privilegesor burdens on the basis of membership in a group,
class or race rather thau on the basis of individuat merit, capacity
or potential: stated affirmative! y, the terms refer to govemmental
policies and actions the objective of which is to protect equality
of opportunity and equal protection of the laws tq individual per
sans as such.
As is shawn below, there has evolved over the years, and now
exists, a generally accepted international human rights norm of
non-discrimination or non-separation, as defined in the preceding
paragraph. Such a norm is evidenced by international undertakings
in the form of treaties, conventions and declarations, by judicial ARGUME:s-T OF MR. GROSS 253
.decisions, the practice of States and constitutional and statutory
provisions by which such a· norrn is incorporated into the body
of laws of States." (IV, p. 493.)
In the light of the nature of Respondent's contentions in the Counter
Memorial, to which I have referred, and the clear requirements of a
reply thereto, sorne cause for surprise may be found in Respondent's
comment in the Rejoinder that, inasmuch as the Applicants have elab
orated certain "contents and sources of the stiggested·norms", the Reply
"seeks to make out an entirely new case". - -
Mr. President and Members of the honourable Court, I have said that
in the light of the nature of Respondent's contentions in the Connter
Mem_orial,to which_I have referred, and of the clear requirements of a
reply thereto, cause for surprise may be found in Respondent's comment
in the Rejoinder that, inasmuch as the Applicants have elaborated certain
contents and sources of the suggested norrns, the Reply seeks to make
out an entirely new case.
Respondent apparently, and no doubt unwittingly, misintèrprets the
contention made by the Applicants in the Memorials that the terrns of
the relevant Articles of the Covenant and of the Mandate "establish clear
and meaningful norms marking the duties of the Mandatory", as 'we
said in the Memorials (I) at page 107. The Applicants' reference to the
terrns and purposes of Chapters XI, XII and XIII of the·United Nations
Charter was not, of course, intended to imply that these terrns and
purposes marked the full measure and extent of the lègal norrns appli
cable to the Covenant and relevant to the interpretation of the·Mandate.
Indeed, the chapters of the Charter of the United Nations referred to in
this context are of particular relevance in the light of the fact that they
deal with non-self-goveming territories. (Chapter XI, the International
Trusteeship System, Chapter XII, and the Trusteeship Council, Chapter
XIII.)
Determination of any legal questions or disputes which might arise
concetning the interpretation or application of these chapters of the
Uruted Nations Charter would, likewise, necessarily involve considera
tion of the same, or similar, legal norms which are applicable to disputes
concerning the interpretation or application of Article 22 of the Covenant
or provisions of the Mandate, including Article 2, paragraph 2.
Even more surprising perhaps is the statement in the Rejoinder that,
by elaborating the legal norms relevant to judicial interpretation of
Article 2, paragraph 2, of the Mandate, the Applicants have, in Respon
dent's phrase, "introduced a new cause of action". (V, p. ros.)
The only "cause of action" involved in the present proceedings, Mr.
President, in the view of the Applicants, is that embodied in their Sub
missions Nos. r through g, and the Frayer for Relief, ail of which are
set out in the Memorials at 1, pages 197 and rg8. That has been, and
remains, the "cause·of action". ·
ln the context in which Respondent refers to an asserted "new cause
of action", by virtue of the elaboration of the relevant legal norrns and
standards upon which they are based, Respondent has deemed it appro
priate, 1 regret to say, to.incorporate tendentious and unwarranted com
ments concerning the Applicants' asserted motivations in bringing these
proceedings. The Applicants do not perceive it to be appropriate, or
consistent with the dignity of this high Tribunal, or relevant to the im
portant legal issues raised in these proceedings, to engage in a controversy254 SOUTH WEST AFRICA
which may divert from consideration of the legal issues. It may suffice
to reaffinn, Mr. President and Members cf the honourable Court, that
the Applicants have sought recourse to the judicial processes solely for
the purpose of seeking a just, peaceful, and judicial resolution of the
legal issues involved in the long protracted dispute between themselves
and the Respondent which, as the Court has said, involves legal issues
identical with, although separate from, those involved in the dispute
between the United Nations, on the one hand, and the Respondent, on
the other.
It is relevant, however, to note and to advert to the fact that there
has been no major, or indeed any other, "shift from the stand taken" in
the Memorials, to use Respondent's phrase.
Whether or not the legal norm, for which the Applicants contend,
appropriately may be described or labelled, as we respectfully do de
scribe and label it, a "nonn of non-discrimination" or of "non-separa
tion", appears to the Applicants to be a question of no moment. This is
a mere characterization of a legalnonn, the contents of which are relevant
to these proceedings, and not a caption. The important points are
whether the legal norms and objective criteria which are elaborated and
analysed by the Applicants exist, and, if they do existas the Applicants
submit, whether they are applicable to Respondent's admittedly legal
obligations in terms of Article 2, paragraph 2, of the Mandate and of
Article 22 of the Covenant of the League of Nations.
The Applicants, accordingly, and with respect, turn to a summary
consideration of such legal nonns and objectively determinable legal
criteria which, as I have said, are set out in the Reply, at IV, pages 476 to
srg.
Mr. President, the concept of discretionary powers limited by legal
norms is weil known to international judicial tribunals. The concept was
equally well-known prior to the time of the establishment of the man
dates system itself. Thus for example in rgro, Mr. Elihu Root, of the
United States of America, stated to the American Society of Interna
tional Law, with regard to deniai of justice, the following points and
principles:
"The rule of obligation is perfectly distinct and settled. Each
country is bound to give to the nationals of another country in its
territory the benefit of the same laws, the same administration, the
same protection, and the same redress for injury which it gives to
its own citizens, and neither more nor less; provided the protection
which the country gives toits own citizens conforms tothe established
standards of civilization.
There is a standard of justice [said Mr. Root in 19!0] very simple,
very fundamental, and of such general acceptance by ail civilized
countries as to form a part of the international law of the world.
The condition upon which any country is entitled to measure the
justice due from it to an alien by the justice which it accords toits
own citizens is that its system of law and administration shall con
form to this general standard. If any country's system of law and
administration does not conform to that standard, although the
people of the country may be content or compelled to live under it,
no other country can be compelled to accept it as furnishing a
satisfactory measure of treatment toits citizens ... It is a practical
standard and has regard always to the possibilities of govemment ARGUMENT OF MR. GROSS 255
under existing conditions." (Root, Proceedings, A.S.l.L. I9IO, pp.
r6, 2o-22.)
The discretionary powers of governments indeed are very wide with
respect to aliens living within their borders, but they are limited by
international nonns, rather than by any asserted test of good faith or
mens rea.
It would serve little purpose to burden the Court by citation of the
many examples of analysis of such nonns, or of decisions of international
tribunals applying them.
The Government of the United Kingdom made the following comment
in its Observations, transmitted to the Secretary-General of the United
Nations on 24 August 1948, concerning the Draft Declaration on the
Rights and Duties of States which had been presented by Panama to the
first session of the General Assembly:
"There is much international authority [says the British state
ment] for the existence of a minimum international standard, with
which States are obliged to comply in their treatment of foreigners,
whether or not they do soin the treatment of their nationals. If, and
in so far as international law develops so as to limit the domestic
jurisdiction of States in the treatment of their nationals to such an
extent that every treatment of a national, which falls below the
international standard, is a breach of international law (and there
fore amatter on which other States may intervene), then the existing
principle of international law with regard to the 'international
standard' will apply to both nationals and foreigners. Unless and
until that position is reached, His Majesty's Government consider
that the doctrine of the minimum international standard, with
regard to the treatment of foreigners, remains part of interna
tional law and that agreement to abolish that doctrine will not be
attained." (U.N. Doc. AJCN 4/2, 15 Dec. 1948, pp. 20-23, JI, r88.)
It should also be·noted, Mr. President, that the concept of standards
capable of guiding policy and action in the mandated territories, and
providing a basis upon which the conduct of the mandatory might be
judged, has been analysed in sorne detail, again by the same scholarly
authority to whom 1 have previously referred, Professor Wright, in his
same study of 1930 on the mandates system.
In a chapter, which indeed is entitled "Establishment of Standards",
Professor \Vright comments: "The evolution of general standards will be
perhaps the most important development of the mandates system."
(Mandates under the League of Nations, p.225.)
After quoting from Article 22 of the Covenant of the League of Na
tions, and referring to severa! relevant general conventions, Professor
Wright comments as follows:
"To what extent has the League developed this inchoate material
into standards capable of guiding policy and action in the mandated
areas?
For establishing such standards [Professor Wright answers his
own question], three distinct procedures have evolved: (a) the
growth of a jurisprudence from decisions on particular questions,
(b) the agreements on principles for its own use by the Commission
[that refers to the Permanent Mandates Commission, of course], and SOUTH WEST AFRICA
(c) the passage of formai resolutions bytheCouncil of the Assembly.''
(Ib-id.,pp.219-220.)
ln respect of judicial protection, Professor Wright comments that
".... the Permanent Court of International Justice has no immediate
·control of manda tory policy but the fact that jt is the final authority
on disputes over the interpretation of the mandates is a valuable
.' safeguard against destructive interpretations by the manda tories".
(Ibid.•p. rg1.)
And, further, Professor Wright says:
"The League gives validity to general rules by confirming and
- interpreting the mandates and judges the acts of the mandatories
.according to their conformity with these rules, possibly in extreme
cases sanctioning its judgment by transferring a mandate. but at the
same time it gives general advice on policy and criticizes the activity
of the mandatory according toits results. The first type of activity
-~ is mainly performed through the Council and the Permanent Court
of International Justice; the second through the Council and the
Permanent Mandates Commission." (Ibid.,pp. rgz-rg3.)
And, continuing in this valued work, in the course of the chapter
entitled "The Establishment of Standards", the leamed author stresses
the power of the Court to judge the administration in mandated areas
in the light of such standards, which ineludes references to matters within
the· scope of Artic2l , paragraph 2, of the Mandate, such as so-called
"Native" participation in government, economie and social policy, and
~ducati policy.
The validity of the Applicants' contention that the obligations of
Article 2,paragraph 2,of the Mandate are to be regulated by the applica
tion of minimum legal norms, rather· than by an asserted good faith test,
is confirmed also by the terms of Article 6 of the Mandate. Article 6
reads: · ·
"The Mandatory shall make to the Council of the League· of
Nations an annual report to the satisfaction of the Council, con
taining full information with regard to the Territory, and indicating
·the measures taken to carry out the obligations assumed under
Articles 2, 3, 4 and 5." .
The phrase "indicating the measures hi.ken to carry out the obliga
tions assumed under Articles 2, 3, 4 and s" makes clear, in our sub
mission, that the authors of the mandates system envisaged no distinc
tion of a legal character befween the obligations under Article 2, as
distinguished from Articles 3, 4 and s. As I have said before, any such
distinctions are made by statements in the nature of a glass which, in
effect, amends the clear terms of Article 2.
The Respondent, in the Counter-Memorial, contends that although
the obligations under Articles 3;4 and 5 are, in their words, "couched in
relatively clear and precise language", the wording of Article 2,paragraph
2, is "in keeping with its nature~ an expression of an idealistic objec
tive". (Il, p. 387.)
The Respondent leans heavily upon this purported distinction between
the "relatively clear" formulation of Articles 3, 4 and s (in its words) and
the broader formulation, in terms of Article z_ This is heavily relied
upon by Respondent, particularly in support of its contention that its ARGUMENT OF MR. GROSS 257
discretionary powers are limited only by the requirement of good faith.
But the wording of Article 6 of the mandate agreement indicates, in our
respectful submission, that no distinction was drawn or perceived by the
authors of the Mandate between, or among, these Articles on the basis
of the method of their formulation.
The fact that no such limited scope, as contended for by the Respon
dent in the good faith test, was ever thought by the authors to be implicit
in the sacred trust provisions, clearly appears from the purposes which
were envisaged by the authors of the Mandate as to be served by the
reporting requirements.
The crucial importance, as well as the scope, of such reporting may
be seen from the report submitted to the Council of the League of Na
tions by the B~lgia rnpresentative to the Council, Mr. Hymans. As
mentioned by my colleague, Mr. Moore, in his presentation to the hon
ourable Court in Part B of this presentation, the Hymans report was
adopted unanimously by the Council. Mr. Moore has referred to this
matter in the verbatim record, at page 145, supra.
The report stated, in relevant part, as follows:
"Is the Council to content itself with ascertaining that the man
datory Power has remained within the limits of the powers which
were conferred upon it, oris it to ascertain also whether the manda
tory Power had made a good use of these powers, and whether this
administration has conformed to the interests of the native popula
tion?
lt appears tome that the wider interpretation should be adopted.
Paragraphs I and 2 of Article 22 have indicated the spirit which
should inspire those who are entrusted with administering peoples
not yet capable of goveming themselves, and have determined that
this tutelage should be exercised by the State in question as manda
toriesand in the name of the League. The annual report stipulated
for in Article 7 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 Nations Council, P.V.
20/29/14, 8th Sess., p. 187.)
lt will be noted that no reference is made in the Hymans report,
any more than reference is made to any proceedings of which the Ap
plicants are aware that took place during the formation of the Covenant
or of the mandates system, to purpose, motive, intent or good faith or
bad faith goveming Respondent's officiais in discharging their trust.
As was logical to expect, in the light of the purposes and nature of the
sacred trust, the Council was concerned, in the words of Mr. Hymans in
the report unanimously adopted by the Council, "whether the administra
tion has conformed to the interests of the native population", which in
all respects is quite a differentandard than to say orto ask whether the
interests of the "Native" population have been served according to the
best judgment or good faith of the Mandatory. The covenant, as Mr.
Hymans said, indicated the spirit which should inspire the Mandatory;
good faith of course was axiomatic, it was presumed to be an axiomatic
condition. It would be inconceivable that the authors of the Mandate
would have reposed such responsibilities in the hands of governments
which were thought to be capable of bad faith. The Mandate was to be
discharged in a manner conformable to the interests of the population, SOUTH WEST AFRICA
objectively determined. \Vhat was for examination was, in the words
of Mr. Hymans, the question of the whole administration, not the con
science of the administrator.
As 1 have noted, Respondent, in the Rejoinder, elaborates upon a
distinction between norms and standards. In Respondent's analysis
norms and standards differ not in their content but in their legal effect,
if the Applicants understand the discussion in the Rejoinder, particu
larly at V, page r67. Thus, while norms are legal rules which in objective
terms define Respondent's obligations under the Mandate, standards,
in so far as they "refer only to practices, policies or theories of govern
ments applied by States, or advanced or propagated by politicians,
experts, authorities, scientists, moralists, etc." are not legal rules ob
jectively enforceable against Respondent and "cannot perse and in the
absence of consent on Respondent's part, render such standards legally
binding upon Respondent". And as is to be expected in the light of
Respondent's basic contention with regard to the good faith test, Re
spondent treats such standards, as defined by it, as relevant only in so
far as they provide a basis for judging Respondent's good or bad faith.
(V, p. 167.)
Respondent's distinction thus drawn appears to the Applicants to be
quite unrealistic, as the Applicants have endeavoured to show. Legal
principles and norms, as has been said, are of course derived from and
reflect generally accepted standards of social behaviour. As 1 have said,
experience is the !ife of the law. Standards are the sources from which
the law derives its application to the human condition.
Although, of course, it is true that sorne sources of the law are looked
toby judicial tribunals and accorded greater weight than others, it is true
likewise that a court of law will look to any appropriate source relevant
to the purpose of interpreting and applying a legal obligation, whether
generally formulated or not. It is not in the nature of the judicial process
that courts make a conceptual distinction between legal norms on the
one hand and standards on the other, from which such legal norms are
derived and which they reflect.
In the Reply, at IV, pages 485 and following, the Applicants refer to
judicial decisions in which concepts of the sort described by Respondent
as standards have been applied not for the purpose of showing good or
bad faith, but rather for the purpose of measuring and limiting the dis
cretionary powers of govemmental authorities on the basis of objectively
ascertained and determinable standards.
Thus, in the Corfu Channel case this honourable Court held that the
obligations incumbent upon the Albanian Govemment were based "on
certain general and well-recognized principles, namely elementary con
siderations of humanity" (I.C.J. Reports I949, p. 4). And in a separate
opinion Judge Alvarez stated that the "characteristics of an international
deliquency are that it is an act contrary to the sentiments of humanity"
(ibid., p. 45). These are standards.
The leamed and late distinguished Justice of the United States Su
preme Court, Felix Frankfurter, concurring in a celebrated opinion
entitled Louisiana ex rel. Francis v. Resweber, commented that-
"... aState may be found to deny a persan due process by treating
even one guilty of crime in a manner that violates standards of
decency more or Jess universally accepted". ARGUMENT OF MR. GROSS 259
He commented further-
..... the application of standards of fairness and justice are very
broadly conceived [and these are relevant to the issue of cruel and
unusual punishment, which was the constitutional question involved
in that case]. They are not the application of merely persona! stan
dards ·but the impersonal standards of society which atone judges, as
the organs oj Law, are empowered to enforce." (IV, p. 487.)
The use of standards in the sense in which Applicants have viewed that
concept, for purposes of measuring legallimits upon discretionary powers,
in objectively determinable ways, rather than for the purpose of Judging
good or bad faith, also is fotind further in the deniai of justice cases to
which I have referred in principle. To give but one example, in United
States (Roberts Claim) v. Mexico, the General Claims Commission held
that-
"Facts with respect to equality of treatment of aliens and nationals
may be important in determining the merits of a complaint of
mistreatment of an alien. But such equality is not the ultimate
test of the propriety of the acts of authorities in the light of inter
national law. That test is, broadly speaking, whether aliens are
treated in accordance with ordinary standards of civilization."
(Opinions of Commissioners (r927), p.roo.)
It is pertinent also to cite the comment of Alwyn Freeman, a scholar
of the United States, who in his study on the International Responsibility
of States comments as follows:
"The doctrine of standards is essentially one of the reasonable
activity fairly to be demanded of a civilized State, and whatever
vagueness or indefiniteness may be said to surround it proceeds
from this fact. Y et neither this vagueness, nor the possibility that
the notion of 'international standards' may vary with deciding
agencies constitutes a juridical defect, since even in municipal
legal systems liability is frequently made to depend upon concepts
which are equally vague and variable. An illustration iri point is the
concept of the ordinary, prudent man in the Anglo-Saxon conimon
law of negligence. Such uncertainty is always present in dynamic,
living phases of the law and is especially noticeable in the unplowed
soil ofthe international standard." (P. 56g.)
For all of the foregoing reasons, Mr. President, it is respectfully sub
mitted that the distinction sought to be drawn, in terms used by the
Respondent, between norms and standards, is in this context based
upon a misapprehension on the role of standards in the judicial process
in accordance with its true nature.
On the other side of the equation between. norms and standards-we
have been discussing standards up till now-the legal norms upon which
Applicants rely are not to be distinguished from standards upon the
basis of an artificial conceptual basis. It is our submission, Mr. President,
that Respondent's legal obligations under Article 2, paragraph 2, of the
Mandate, are to be measured by legal norms which are derived, inter
alia, from political, social and scientific sources and standards. This is
the correct relationship of the concepts of standard and norm, in the
appreciation of the Applicants.
Among suc~ sources of legal norms are the standards established by 260 SOUTH WEST AFRICA
competent organs of the United Nations and by the International La
bour Organisation.
As 1 have pointed out, the Applicants likewise rely upon the views of
authorities, including those of governments, of social and political
scientists and other experts, as and among the sources contributing to
and illuminative of the generally' accepted international human rights
norm, defined by the Applicants in their Reply at IV, page 493, and
which prohibits the official allotment of rights, privileges and burdens
upon the basis of membership in a group or race, rather than on the
basis of individual quality or capacity.
I should now like with your permission, Mr. President, to consider
more specifically the minimum international standard of non-discrimina
tion or non-separation.
Mr. President, having shawn that the founders of the mandates sys
tem intended to bestow upon the Permanent Court of International
Justice the power of judicial review over governmental policy carried
out under obligations such as those contained in Article 2,paragraph 2,
and having shown that Resl?ondent's discretionary powers in the Man
dated Territory are not limited by good faith, but rather by minimum
international standards, it remains to discuss the nature of the minimum
standards upon which the Applicants rely as sources of the legal norms
which the Applicants contend exist and are applicable in these proceed
ings.
As shawn in the Reply, at IV, pages 493 and following, there has
evolved over the years and now exists a generally accepted international
human rights legal norm of non-discrimination or non-separation on
the basis of membership in a group, class or race. As also is shown in the
Reply, such a norm which, as 1 have said, the Applicants have chosen to
describe as a norm of non-discrimination or non-separation, is a basic
minimum norm, and that to fall short of such a minimum is a fortiori
to fall short of the more demanding obligation to promote to the utmost
the welfare and progress of the inhabitants of the Territory of South
West Africa.
Notwithstanding universal acceptance, save by Respondent itself
alone, so far as Applicants are aware, of such a minimum international
norm of governmental conduct, Respondent contends that the Mandate
must be interpreted in accordance with Respondent's intentions of 1920,
and that a contemporary norm is, in the absence of new agreement
by Respondent, not capable of what it calls "subsequent insertion"
into the terms of Article 2, paragraph 2. (V, p.123.)
Respondent seeks to support its contention by reference to the prin
ciple of contemporaneity and by a somewhat obscure distinction between
the interpretation and the application of documents. In the Applicants'
view, for reasons which have already been elaborated in the regard
to sound application of relevant principles of treaty interpretation to
the "novel international institution" which is the Mandate, Respondent's
arguments are untenable.
In view of the widely accepted, if not universally acclaimed, present
international rules with respect to non-discrimination, set out in Chapter
V of the Reply at IV, pages 493 to 512, it is not necessary to comment
further upon Respondent's conclusion that:
"The only basis upon which interpretation of the relevant texts
could produce a result whereby current norms govern the content of ARGUMENT OF MR. GROSS 261
the Mandate, would be if Article 2 was ab initt'osubject to sorne
qualification such as:
'The Mandatory shall, when exercising its full power of ad
ministration and legislation, give effect to such standards or
norms as may at the time of such exercise be generally applied
by other States'." (V, p. 140.)
Respondent characterizes such a "qualification" as being "an obligation
of uncertain content, posing ... many difficulties of application and
giving rise to the possibility of interminable dispute". Mr. President,
the Applicants submit that the legal dispute now presented to this hon
ourable Court is occasioned, %'ntearlia,precisely by Respondent's failure
to apply currently accepted norms and standards to its administration
of the Territory.
Respondent's contention that when it accepted the Mandate it would
never be bound or prepared to accept the authority of the clearly ex
pressed view of the civilized community with respect to elemental
aspects ofadministration of the Territory in terms of Article 2,paragraph
2,would in itself effect a decisivè alteration of the nature and purpose of
Article 22 of the Covenant and of Article 2,paragraph 2, of the Mandate.
It should be noted that Respondent has conceded that this basic and
minimum international standard "would, if it existed, provide an ob
jective criterion for measuring Respondent's policies" (V, p. 165). It
also is conceded by Respondent that if the Mandate contains such a
minimum basic standard, then, again in Respondent's words, "Respon
dent's admitted policies of differentiation would constitute a contraven
tion of the Mandate". (V, p. ng.)
Further, although Respondent refers to this basic minimum standard
as a "so-called" or as an "alleged" norm, no serious attempt is made by
Respondent to deny the existence per se of the standards relied upon by
Applicants. Rather, Respondent appears to content itself with attempt
ing to demonstrate that the norm which we have labelled non-discrimi
nation or non-separation does not exist as part of the M an.date.lndeed,
Respondent states explicity that "... 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". (V, p. ng.) Indeed, Respondent's arguments
with regard to the basic minimum standard, set out at V, pages ng to
141 of the Rejoinder, seek to demonstrate that the standard referred to
does not exist as an element of Article 2,paragraph 2, of the Mandate.
Respondent commences its discussion of the meaning of Article 2,
paragraph 2, with the comment that the generally accepted standard of
non-discrimination or non-separation was not "contained t'nArticle 2 of
the Mandate as at the date of its execution". (V, p. 123.) Applicants, of
course, have never contended otherwise; the issue is its interpretation,
not its language.
Referring to the severa! rninorities treaties following the First World
War, Respondent correct!y states that it was "completely contrary to the
spirit of the times to sanction any measures directed at destroying
national or cultural groups by their forced absorption into larger or
stronger groups". Respondent deduces that, inasmuch as the minorities
treaties were designed to protect the existence of separate national
groups, they "necessarily involve a ditferentiation in the treatment of
these respective groups ... ". (V, p. 124-) SOUTH WEST AFRICA
In the Applicants' respectful submission, Respondent's contention is
completely wide of the mark. The minorities system was designed to
provide a free choice to members of minority groups; that is to say, such
people could, if they wished, become assimilated into larger, or stronger,
groups. If they did not so wish, they could look to the minorities treaties
to "protect their existence as separa te groups". Such a concept is the
very antithesis of Respondent's policy, which is the subject of these
proceedings in terms of Article 2, paragraph 2. Respondent's policies
eliminate any such, or tend to eliminate any such, element of free choice
-the inhabitants of the mandated territory are allotted rights, burdens,
privileges and status on the basis of their membership in a group, class,
or race, without regard to their individual quality, capacity, or merit.
Respondent, in an attempt to demonstrate that a generally accepted
norm of non-discrimination or non-separation was not regarded as
binding at the period of the inception of the mandates system, contends
that the princip1e of "protecting the identity of national groups ... was
also basic to the mandate system". (V, p. 125.) Respondent elaborates
what appears to be an irrelevant argument designed to demonstrate
that various degrees of group differentiation were approved by the
Permanent Mandates Commission, that other Mandatory Powers "also
applied policies involving varions forms and degrees of differentiation",
and that the policy of indirect rule, as it was known, necessarily involved
such differentiation. Such considerations, however, appear irrelevant to
the question at issue here. The question of differentiation as such does
not arise; if it did, the minorities treaties themselves would be subject
of attack, which they clearly cannat be. What is at issue here is, as has
been said, the official govemmental policy of allotting rights, duties,
burdens, etc., upon the basis of membership in groups. Neither the
League of Nations, nor other Mandatory Powers, nor govemmental
authorities generally, have approved a policy which protects the identity
of "national groups" by a policy of compulsory separation of such groups,
and the allocation to individual members thereof of status, rights, burdens
and privileges on the basis of their membership of such a group, and
without regard to the wishes, merits, or needs of the individuals.
During that period there were, moreover, "fore-runners" of the now
generally accepted norm, and 1 speak now in a positive sense, prohibiting
official discrimination or separation on the basis of group or race. The
Applicants, in their Reply, have referred to severa! examples.
Among these is Article 4 of the Albanian Agreement of 2 October rgzr:
"Ali Albanian nationals shall be equal before the law, and shaH enjoy
the same civil and political rights without distinction asto race, language
or religion ... " (IV, p. 496.)
Similarly, in 1929 the Institut de Droit International adopted a Dec
laration of International Rights of Man, which included provisions in
regard to the equal right of every individual to life, liberty and property,
"without distinction asto nationality, sex, race, language, or religion",
and which stated, inter alia,that:
"No motive based, directly or indirectly, on distinctions of sex,
race, language, or religion empowers States to refuse to any of their
nationals priva teand public rights, especially admission to establish
ments of public instruction, and the exercise of different economie
activitiesand of professions and industries." ARGUMENT OF MR. GROSS
And as will be shown in the discussion of the policies and practices at
issue here, the quoted statement is directly relevant and applicable.
But the point relevant in the context of the discussion at this moment,
Mr. President, ishat although the concept of genuine "group protection"
for those who desired and required it~protec tsiditinguished from
coercion~w widely accepted, as it is today, such a concept has, in the
process of evolution, now become a generally accepted, basic, interna
tional,human rights norm, which is described by the Applicants as a
norm of non-discrimination or non-separation. Such a norm, needless
to say, far from being inconsistent with the concept of "group protec
tion", is complementary thereto, both in purpose and in effect.
In their Reply, the Applicants have set out relevant instruments, dec
larations,agreements and resolutions of international bodies which
establishthe existence of such a legal norm of non-discrimination or
non-separation in the sense of these terms employed by the Applicants
in their written pleadings, specifically in the Reply, at IV, page 493·
That definition, or description, the Court may be pleased to recall, is:
."... stated negatively [non-discrimination and non-separation],
refer to the absence of governmental polides or actions which allot
status, rights, duties, privileges or burdens on the basis of member
ship in a group, classor race rather than on the basis of individual
merit, capacity or potential:stated affirmatively, the terms refer
to governmental policies and actions the objective of which is to
protect equality of opportunity and equal protection of the laws
to individual persans as such".
This is our description of the legal norm.
Applicants further stated in their Reply thatthe~
"... generally accepted international human rights norm of non
discrimination or non-separation ... is evidenced by international
undertakings in the form of treaties, conventions and declarations,
by judicial decisions, the practice of States and constitutional and
statutory provisions by which such a norm is incorporated into the
body of laws of States". (IV, p. 493.)
Numerous sources for the norm of non-discrimination and non-separa-'
tian are set out in enumerated sections in the Reply, at IV, pages 493 to
510. These, it is submitted, demonstrate the existence and wide accep
tance of an international legal norm of non-discrimination applicable to
the interpretation of Article 2, paragraph 2, of the Mandate, and give
to that Article "a concrete and objective content" which is justiciable.
First, during the League of Nations period-this is covered in the
Reply at IV, pages 493 to 497-the substantive content of the practice
of the Permanent Mandates Commission recognized and applied the
principles of "equal and regular justice to all" and of the protection of
fundamental human rights. This was consistent with the status of the
mandates themselves as "human rights documents". Likewise the
protective provisions of the several minorities treaties to which 1 have
referred established international rules for the protection of fundamental
human rights, without distinction as to race, and for equality of all
persans before the law, Further, private bodies during this period gave
expression to the norm of non-discrimination or non-separation. 1 have
referred to the 1929 Declaration of International Rights of Man by_the
Institut de Droit International,and the Declaration on the Foundatwns SOUTH WEST AFRICA
and Leading Principles of Modem International Law, as approved by the
International Law Association, the Académie Diplomatique Interna
tionale and the Union Juridique Internationale in I936, which are
both referred to in the Reply as weiL Both these Declarations prohibit
discrimination on account of race.
Second, we cite the United Nations Charter at pages 497 to SOI of the
Reply (IV). The norm of non-discrimination is clearly enunciated in four
Articles of theCharter, namely Article I (3),Article13 (b), Article 55 (c)
and Article 76 (c). Furthermore, Article 56 provides that ali Members
are pledged ''to take joint and separate action in co-operation with the
Organization for the achievement of the purposes set forth in Article 55",
and one of the purposes of Article 55 is that of promoting-
"... universai respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex,
language, or religion".
The legally binding character of the human rights provisions of the
United Nations Charter has been adverted to and confi.rmed by the
highest scholarly authority, which the Applicants point out in their
Reply from IV, pages 498 to 500. Such authorities include, for example,
Judge Spiropoulos and Judge Jessup of this honourable Court, Professor
Quincy Wright, Paul Guggenheim, Dr. C. Wilfred Jenks and Professor
James Brierly. Furthermore, the Applicants have referred to two deci
sions of United States high courts-Oyama v. California and Fujii v.
California-which have upheld the proposition that the aforementioned
provisions of the United Nations Charter "contain legally binding com
mitments prohibiting Member States from discriminating or distinguish
ing on the basis of race".
Then the Applicants refer to the Universal Declaration of Human
Rights, at page SOI of the Reply(IV). Adopted by the General Assembly
of the United Nations in 1948. the Declaration states in its Article 2:
"Everyone is entitled to ali the rights and freedoms set forth in
this Declaration, without distinction of any kind, such as race.
colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status ... "
Then theApplicants refer to theDraft Declaration on Rights andDuties
of States, cited at page sor of the Reply; the Declaration was adopted
by the International Law Commission in I949. and provides in its Article
6 that-
"Every State has the duty to treat ali persons under its juris
diction with respect for human rights and fundamental freedoms,
without distinction asto race, sex, language, or religion."
Also, Mr. President, we cite the Trust Territories Agreements at pages
sor to 502 of the Reply (IV). Each of the II Trust Territories Agreements
contains or contained provisions recognizing and accepting the univer
sally adopted norm of non-discrimination or non-separation. The several
provisions are all worded with reference to Article 76 (c) of the United
Nations Charter, which states that one of the basic objectives of the
trusteeship system is "to encourage respect for human rights and for
fundamental freedoms for ail without distinction as to race, sex, lan
guage or religion".
Resolutions of the General Assembly of the United Nations are referred ARGUMENT OF MR. GROSS
to at pages soz to S03 of the Reply. The Applicants have ventured to
list 33 resolutions of the General Assembly of the United Nations,
ali of whlch specifically condemn racial segregation or discrimination.
Almost ail of these resolutions expressly state that racial discrimination,
including the policy of apartheid, is in violation of the United Nations
Charter. Futher, most of the resolutions relating to the Territory of
South West Africa state that the policies of racial segregation or apartheid
are in violation of the mandate agreement itself.
And then, Mr. President, resolutions of the United Nations Security
Council are referred to at pages S03 to S04of the Reply (IV). The Security
Council has on three occasions expressed the view that apartheid is in .
violation of the United Nations Charter. In the resolution of 4 December
1963, the Security Council expressed "the jirm conviction that the policies
of apartheid and racial discrimination ... are abhorrent to the conscience
of mankind ... ", and the Council urgently requested the Respondent,
with respect to South Africa itself, to cease the application of its policies
which, in the words of the Council resolution-
" ... are contrary to the principles and purposes of the Charter and
which are in violation of its obligations as a Member of the United
Nations and of the provisions of the Universal Declaration of Hu
man Rights ... ".
And then, Mr. President, we cite the Human Rights Covenants at
pages S04 to sos of the Reply (IV). The Third Committee of the General
Assembly has, by overwhelming majorities, approved the relevant Ar
ticles of the Draft Covenant on Civil and Political Rights and of the
Draft Covenant on Economie, Social and Cultural Rights. These Articles
are referred to at pages S04 to sos of the Reply, and clearly refiect and
reinforce the international norm of non separation or non-discrimination
on account of race or colour.
\Ve come to the United Nations Declaration on the Elimination of
Ail Forms of Racial Discrimination, which is referred to at pages sos to
S07 of the Reply (IV). The 18th Session of the General Assembly adopted,
by unanimous vote, the Declaration on the Elimination of Ali Forrns of
Racial Discrimination in November of 1963. The first seven operative
articles ofthe Declaration are set forth on pages sos to so6 of the Reply.
They include Article 2, paragraph J, which specifically prohibits the
justification of racial segregation by the implementation of special mea
sures to develop it, and Article s. which expressly condemns apartheid
and "aU forms of racial discrimination and separation" resulting there
from.
And then, Mr. President, the International Convention on the Elimina
tion of Ail Forms of Racial Discrimination is referred to at pages S07 to
soS of the Reply. The General As<>emblyin 1963 requested the United
Nations Commission on Human Rights to give what it termed "absolu te
priority" to the preparation of a draft international convention on the
elimination of ali forms of racial discrimination. A draft convention had
been adopted by the Human Rights Commission, and was to be con
sidered by the General Assembly in its Igth Session. The approved Draft
Convention condemns in expressis verbis "policies of apartheid", and
refiects with clarity the intemationally accepted human rights norm of
non-discrimination or non-separation on·the ground of race or colour.
It also reftects, in its Article I, paragraph 2, the illegality of officialz66 SOUTH WEST AFRICA
sanction or imposition of measures of development which "lead to the
maintenance of separate rights for different racial groups", a concem
which was also refiected in the Declaration on the Elimination of Ali
Forms of Racial Discrimination which 1 have just discussed.
With regard to United Nations standards and findings, in their written
pleadings the Applicants have summarized certain findings of United
Nations organs or agencies wlùch deal with the adverse effects of the
policy and practice of racial separation in education, inter alia, in depen
dent terri tories; these a.recited in the Reply at IV, page 398 and following.
As is noted in the Reply, the conclusion has been reached by United
Nations organs that segregation on the basis of race, as a matter of prin
ciple, is incompatible with (a) the broad goals of education, (b) the
basic meaning of education, (c) the principle of equal opportunity, and
(d) the goal of unification of dependent territories. Respondent includes
in its reply to these conclusions of the United Nations the irrelevant
comment that it "is in no way obliged to comply wHh the said 'require
ments' in the case of South West Africa"; this is the characterization in
the Rejoinder, VI, p. 161. The implication that Respondent has adduced
seems to be that the United Nations findings or conclusions to which 1
have referred are asserted by the Applicants to impose specifie legal
requirements. This is gratuitous interpretation on Respondent's part.
The Reply makes it explicitly clear that the conclusions of the United
Nations agencies are referred to as indicative of "the purposes and prin
ciples of administration of dependent territories". Respondent, 1 sub
mit, distorts even more the Applicants' reason for adducing the con
clusions of the United Nations agencies on these matters by the protes
tation by Respondent that the propriety, on the part of the Court, of-
"... inquiry by it as to compliance or otherwise by other Govem
ments with 'requirements' or 'standards' which have been laid clown
by United Nations organs in respect of territories administered by
such Governments must be open to serious doubt". (VI, p. r61.)
Respondent thus protests the "propriety" of an "inquiry" "asto com
pliance or otherwise by other Govemments with 'requirements' or 'stan
dards' which have been laid clown .. .'', etc. The Applicants fully concur
that this honourable Court may not appropriately be requested to con
sider or pass upon, or enquire into, policies or practices regulating the
affairs of any State, territory or society other than the territory in
question in this proceeding. It has not been, and it is not now, the inten
tion of the Applicants to suggest otherwise, and that of course was not
the purpose for which reference was made in the Reply to the findings of
the United Nations agencies.
Respondent, in its written pleadings, quarrels with the application by
United Nations organs of their conclusions in respect of particular areas
(VI,pp.161-r63). Respondent's comments here seemto be wide ofthe mark.
The pointis that these purposes and principles, which are set forth in
the Reply at IV, page 398 are embodied in constitutions of agencies of
the international organization legally vested with supervisory functions
over the Mandate. They are clearly relevant and, indeed, persuasive, as
sources, along with others, which evidence the existence of a widely
and, in this case, officially accepted standard, irreconcilabie with govem
rnentally enforced separation on the basis of membership of a race or
group, without regard to individual merit, quality or capacity. ARGUMENT OF MR, GROSS
Then the Applicants cite the International Labour Organisation Con
stitution and Conventions, at pages soS to 509 of the Reply (IV). The
Declaration of Philadelphia was adopted by the International Labour
Conference in 1944 and was incorporated into the Constitution of the
International Labour Organisation. lt contains an unequivocal recogni
tion of the principle of equality of opportunity and treatment, without
regard to race-a principle enunciated in greater detail by the Conven
tion concerning Discrimination in Respect of Employment and Occupa
tion-which was adopted by the International Labour Conference in
1958-and expressed with complete specificity in the Convention con
cerning Social Policy in Non-Metropolitan Territories of 1947. The
relevant provisions of these Conventions likewise are set forth in the
Reply, at IV, pages soS to 509.
Then, Mr. President, regional treaties and declarations are cited at
pages 509 to 510 of the Reply. In further exposition of international legal
instruments, embodying and expressing the norm of non-discrimination
and non-separation on account of race, Applicants have set forth the
relevant, and unequivocal, provisions of the European Convention for
the Protection of Human Rights and Fundamental Freedoms, the Charter
of Organization of American States, and the American Declaration of
the Rights and Duties of Man-adopted at the Ninth International Con
ference of American States. These are cited at pages 509 to 510 of the
Reply.
That the norm of non-discrimination, or non-separation,should have
been codified as a fundamental minimum standard by regional associa
tions of States of the world, serves again to confirm lts character as an
internationally recognized minimum of conduct and of obligation in the
interpretation and application of international undertakings, including
the Mandate, of a human rights character.
The Applicants respectfully submit, on the basis of the foregoing in
struments, declarations, agreements and resolutions of international
bodies to which I have referred, that:
(a) an international legal norm does exist which may fairly be described
as a norm prohibiting official governmental allocatiOn of status,
rights, dutiesand privileges upon the basis of membership of a group
class or race, without regard to individual merit, capacity or quality;
(b) that such legal norm is applicable to, and determinative of, Respon
dent's obligations in terms of Article 2,paragraph 2,of the Mandate;
and
(c) that this honourable Court should apply such legal norrn in the light
of the standards, which have been referred to, in adjudicating the
legal dispute which the Court has held to exist between Applicants
and Respondent, in respect of the interpretation and application
of Article 2, para.graph 2, of the Mandate.
ln conclusion of this Part D, Mr. President, therefore, the Applicants
respectfully submit, for the reasons set forth in the Applicants' Memo
rials and in their Reply, as weil as those adduced, and to be adduced,
in the Oral Procecdings, and on the basis of the norms relevant to a
determination of Respondent's obligations as stated in Article 2, para
grap,h 2,of the Mandate, that Respondent's conduct has been, and is,
in violation of these obligations. SOUTH WEST AFRICA
ln Applicants' submission the policy and practice of apartheid is ipso
factoa violation of intemationallaw, in terms of Article 38, paragraphsI
(b) and (c),of the Statute of this honourable Court.
The international custom outlawing discrimination and separation,
to~eth wirh the wide introduction of such a norm into the general
pnnciples of law recognized by civilized nations, warrants a determina
tion that the policy of apartheid, as defined in the pleadings of the Ap
plicants, strikesat the heart of the Mandate and Article 22 of the Cave
nant of the League of Nations, and is a violation of international law.
Even in the absence of such a determination, however, Mr. President,
it is submitted that the policy and practice of apartheid or separate devel
opment, as defmed and analysed in the Memorials and in the Reply,
violates Respondent's obligations, as s~at n Article 22 of the Covenant
and Article 2, paragraph 2,of the Mandate, as measured by the relevant
and generally accepted legal norms and standards described in the Me
marials, the Reply and these Oral Proceedings.
Having concluded the Applicants' presentation of Parts A, B, C and D,
of this phase of the Oral Proceedings, the Applicants would, with the
permission of the President, state their submissions upon the basis of
the relevant allegations of fact and statements of law set out in the
written pleadings and in the Oral Proceedings herein, and supplemented
by such other statements of fact and law as hereinafter may be made.
May it please this honourable Court to adjudge and declare that:
r. South West Africa is a Territory under the Mandate conferred upon
His Britannic Majesty by the Principal A!lied and Associated Powers, to
be exercised on his behalf by the Government of the Union of South
Africa: accepted by His Britannic Majesty for and on behalf of the Gov
ernment of the Union of South Africa, and confirmed by the Council of
the League of Nations on 17 December 1920.
2. The Republic of South Africa continues to have the international
obligations stated in Article22 of the Covenant of the League of Nations
and in the Mandate for South West Africa as well as the obligation to
transmit petitions 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.
5· The Republic of South Africa, by word and by action, in the respect
set forth in Chapter VIII in the Memorials, has treated the Terri tory in a
manner inconsistent with the international status of the Territory, and
has thereby impeded opportunities for self-determination by the in
habitants of the Terri tory; that such treatment is in violation of the
obligations of the Republic of South Africa as stated in the first para
graph of Article 2 of the Mandate and Article 22 of the Covenant; that
the Republic of South Africa bas the duty forthwith to cease the actions
summarized in section C of Chapter VIII of the Memorials and to refrain
from similar actions in the future; and that the Republic of South Africa
has the duty to accord full faith and respect to the mternational status of
the Territory.
Next submission:
The Republic of South Africa has failed to render to the General
Assembly of the United Nations annual reports containing information
with regard to the Territory and indicating the measures it has taken to
carry out its obligations under the Mandate; that such failure is a viola
tion of its obligations as stated in Article 6 of the Mandate; and that the ARGUMENT OF MR. GROSS
Republic of South Africa has the duty forthwith to render such annual
reports to the General Assembly.
Next submission, Mr. President.
8. The Republic of South Africa has failed to transmit to the General
Assembly of the United Nations petitions from the Territory's inhabi
tants addressed to the General Assembly; that such failure is a violation
of its obligation as Mandatory; and that the Republic of South Africa
has the duty to transmit such petitions to the General Assembly.
· ·Finally.
g. The Republic of South Africa, by virtue of the acts described in
Chapters V, VI, VII and VIII of the Memorials, coupled with its intent,
as recounted therein, has attempted 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 Article 7 of 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 the Republic of South Africa directly or indirect! y to modify
the terms of the Mandate.
· The Applicants respectfully reserve the right to request the Court to
declare and adjudge in respect of events which may occur subsequent to
this phase of the Oral Proceedings, including any event by wh1ch con
stitutional or juridical relationships now existing may be changed if, and
to the extent that, relevant to the issues herein.
In conclusion, Mr. President, with my profound gratitude to the Court
for the patience it has shown in this rather lengthy discursive exposition,
I terminate, on behalf of the Applicants, the first phase of these Oral
Proceedings, and reserve to the subsequent phase a fuller discussion of
issues involved in Article 2, paragraph 2,of the Mandate, including the
legal issues there involved and the submissions relevant thereto, which
1 have not now presented to the Court, and ali other issues and prayers
for relief which may seem to the honourable Court to be appropriate to
grant.
Thank you, Mr. President. 6. ARGUMENT OF MR. DE VILLIERS
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA AT THE PUBLIC
HEARINGS OF JO MARCH TO I4 APRIL 1965
Mr. President and honourable Members of this Court, it is hardly
necessary for me to say that this case raises issues of the greatest im
portance, not only for the govemments involved, but also, and in par
ticular, forthe very large number of human beings whose very lives
may be affected by the outcome.
At the heart of these proceedings there lies the Applicants' charge
that the Govemment of the Republic of South Africa has violated its
fundamental sacred trust obligation under the Mandate, that is the
obligation to promote to the utmost the material and moral well-being
and the social progress of the inhabitants of the Territory of South
West Africa. Ali other issues and aspects of this case are subservient to
this particular one, at any rate as far as their practical significance is
concemed. That this is so, Mr. President, is apparent first of ali from
the antecedent histoty leading up to this litigation. That is a subject on
which I shall have sorne rnore-to say at a later stage. Secondly, it emer
ges from the written pleadings which have been filed, about which 1
shall also have sorne more to say at a later stage. But most important,
Mr. President, it emerges also from the oral addresses of the Applicants'
representatives to which we listened last week and the week before, al
though these addresses were, in the main, intended to be confined to
the legal issues between the Parties.
At the very opening· of his address on Thursday, the r8th of this
rnonth, my leamed friend, Mr; Gross, stated as follows:
"... seldom in the history of judicial administration can th.ere
have been involved legal issues, the determination of which more
profoundly will affect the 'material moral well-being and the social
progress' of a multitude of individual human persans". (P. ro7,
supra.)
Mr. President, at !east in that one respect, if in no others that 1 can
see for the moment, there seems to be agreement between my learned
friend and myself. He added, very shortly afterwards, on the same
page of the record:
"The Applicants have not sought judicial recourse in arder to
requite a narrow rnaterial or selfish interest peculiar to themselves.
[1 skip somewhat] The Applicants' legal interest encornpasses
nothing less than observance by the Respondent of the totality of
its legal obligations under the 'sacred trust' of the Mandate."
That, then, Mr. President, is the fundamental issue-alleged violation
by the Respondent of the sacred trust regarding the well-being and
progress of the inhabitants of South West Africa. There are of course
certain legal issues to be dealt with before this fundamental, crucial
issue is reached. Depending on the outcome of those legal questions,
itmay be that this particular charge may not arise for decision at ali. ARGUMENT OF lllR. DE" VILLIERS 271
But, Mr. President, there can be no doubt about it that that is the
piècede résistance at .which the Applicants have set .their targets.
My leamed friend, Mr. Gross, in his opening oral address summarized
this charge concisely in these words-"The policy of apartheid, as prac
tised in South West Africa, is repugnant to the Mandate''. (P. II], supra.)
I repeat, Mr. President, "The policy of apartheid, as practised in South
West Africa"-a fundamental, factual question that is alleged to be
"repugnant to the Mandate". .
My leamed friend proceeded to refer to criteria on which he submit
ted that this charge was legally detenninable. I shall deal with those
criteria in the course of our legal argument which we also intend to
present before dealing with the factual considerations involved in the
issues on the merits, in terms of the general arrangement at which we
have arrived. ·
.But, Mr. President, there is one respect in which I should like to
depart from that general scheme of things. There is one aspect of the
canvassing of the factual side of this case to which I would like to refer
straight away because of the effect it may have on practical arrangements
for the further conduct of these proceedings-arrangements which may
have to be made well in advance in order to serve their purpose and in
order to avoid unnecessary delay. I refer, Mr. President, to the possibility
of an inspection in loco as a means of assisting this Court in coming to
a just conclusion on .the factual aspects of the case. The Court will no
doubt be aware that we were desirons of raising this matter at the very
outset of the proceedings, even before the presentation of the Applicants'
case, but, in view of the fact ihat the necessary agreement could not be
reached in that regard, we have had to await our normal turn, which
has now arrived. We have considered waiting with this application until
after disposai of the legal arguments, but that would appear to involve
a further delay of possibly sorne weeks and consequently, Mr. President,
in view of the time factor 1 have mentioned, we have considered it best
not to delay the matter any further but to raise it straight away.
On Saturday morning, during the Court's recess, we advised the rep
resentatives of the Applicants that we would raise this matter this
morning and we also advised them that we would add in one respect to
the proposai as previously cornmunicated to them. We also informed
them that we would have no objection to a deviation from normal pro
cedure so as to enable them to reply at once to this proposai, if they
should wish to do so, ocas saon afterwards as it might suit them, even
if that should mean breaking into our legal argument. But that, of
course, Mr. President, is a point on which they will have to please them
selves, subject of course to the wishes of the Court. Our respectful sug
gestion is that this is a matter which should not be delayed unduly.
Now, Mr. President, before 1 put the exact content of the proposai
to the Court, may 1 be permitted sorne brief observations as a back
ground thereto, and in support thereof.
In their pleadings, the Applicants go so far asto assert that, in regard
to the Native inhabitants of the Territory of South West Africa, the
South African Government has not only failed to promote their well
being and progress to the utmost but that it has failed to do so to any
significantdegreewhatever. Those words which 1 have stressed 1 quote
from the Memorials, 1, at pages 108 and r62. The Applicants proceed to
allege that Respondent's efforts have in jact beendirectedto the opposite272 SOUTH WEST AFRICA
end. That we find in the Memorials, 1, at page roS. Now these charges
are, of course, strenuously denied by us. In the pleadings that have been
filed we have dealt at sorne considerable length with the efforts and the
progress that have actually been made in pursuit of the civilizing mis
sion undertaken by the Respondent Govemment, especially as regards
the Native inhabitants of South West Africa.
With special reference to the practical realities of the situation in
South West Africa, Mr. President, the South African Govemment has
attempted to demonstrate why it is sincerely convinced that its much
maligned policies are in fact those best suited to the ideals of the sacred
trust. In these expositions we have not spared any effort whatsoever to
give the Court the fullest measure of information possible, in presenting
alithe relevant facts that the Court might consider helpful in coming to
a decision. And, Mr. President, we are not leaving the matter at that
at the presentation of the written material to the Court. As we have
already notified the Court, we intend presenting the testimony of wit
nesses and experts, testimony that can be tested by the ordinary proces
ses of cross-examination and the like, in order to assist the Court in
coming to a just conclusion.
But, Mr. President, in aU these expositions, as weil as in the issues
with Ethiopia and Liberia whlch have emerged therefrom, one factor
has arisen constantly, a factor with which it is almost impossible to deal
adequately on paper or in speech, and that factor, Mr. President, is the
question of difference between African circumstances, African realities
and African standards and those pertaining to, say, American, European
or Asian countries and peoples. These differences, in so far as they are
relevant to the present proceedings, are, in sorne respects, of very great
signifi.cance-in sorne respects they are of lesser importance; in part,
they are readily apparent to the searcher after truth, but in part, Mr.
President, they are extremely subtle. And in our submission it is quite
clear that, in view of its very nature, African reality is something which
cannot be conveyed properly and adequately merely by the spoken
and the written word. African reality requires to be seen in order to
be appreciated properly and effectively. And that, Mr. President, is a
fundamental aspect, a fundamental reason, in support of this applica
tion which I am putting to the Court.
It is, in our submission, no doubt important in any law suit that the
court is to be infonned as fully and as adequately as possible of aU
relevant facts which could have a bearing on each decision. But, Mr.
President, that truism can hardly be demonstrated in a more vivid
perspective than in the present case because this is no ordinary case.
The issues involved in this case, and the decision which the Court is
called upon to make, have implications which extend very far beyond
ordinary limits.
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 persistently in the
international political arena, particularly in the United Nations. The
leaders of that campaign, who are represented herein by the Applicant
States, like to portray that campaign as something in the nature of
a holy crusade of modem times-as something required to liberate fel
Jow human beings from conditions which are said to be worse than sla
very. That is the way in which this campaign is portrayed from the ARGUMENT OF MR. DE VILLIERS 273
side of the adversaries of the South African Govemment in this respect.
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 of the Territory of South West Africa, or the
real interests and needs of the population of that Territory. I know,
Mr. President, that that is a point on which my learned friends are par
ticularly sensitive and I fully expect protestations to high heaven about
this. But protestations or no protestations, this is what we are going
to demonstrate. The record is, in our submission, particularly clear on
that point. I do not want to elaborate it now. I shall do soin the presen
tation to the Court of our case on the merits. At this particular stage
my only concem is to point out to the Court the extraordinary implica
tions of this dispute of which a phase is now being conducted in this Court
in the present proceedings.
Mr. President, in regard to this campaign, moreover, we also point
out in the pleadings that the South African Govemment has hardly ever
had a proper opportunity of defending itself. The reason for that Is that
the campaign was waged in organs of the United Nations under circum
stances where there was a dispute about the fact whether those organs
had any supervisory jurisdiction in respect of South West Africa at ail.
The South African Govemment was put in this difficult position that it
bad to guard itself against what it regarded as an assumption of juris
diction on the part of organs that did not have such jurisdiction, and
an assumption moreover of power which could be extremely dangerous
in the circumstances.
Those were the conditions under which South Africa had to defend
itself, if at ail, against the merits of these attacks made upon it, and
those are the circumstances under which, as I have said, it was hampered
in the presentation of its case on the merits.
Mr. President, it is not only in regard to these antecedents of the case
and in regard to the motivation ·behind it that there is such an extreme
divergence between the attitudes of the Parties. When we come to the
merits on the policy aspects, when we come to the policies which are
suggested should be pursued by the South Airican Govemment in pur
suit of the sacred trust, we find an equal if not a greater, divergence
between the Parties.
We find that the Applicants advance that a multitude of people is
suffering as a result of a policy which they allege to be oppressive and
tyrannical. On the other band, the Respondent denies these allegations.
The Respondent says that its policies are aimed at the upliftment of all
the peoples concemed,'at making it possible for all of them to live together
in circumstances of friendship, harmony and co-operation, on the basis
of full recognition ofthe human dignity of all of them. The Respondent
says also, Mr. President, that although the situation and the problems
attaching to it are admittedly very difficult, and although no solution
can be said to be perfect, very real, steady and substantial progress is
in fact being made in the Territory with the people concerned in pursuit
of these ideals and in pursuance of the policies of the Respondent.
The Respondent goes further, Mr. President; it points to the alter
native policy which the Applicants very clearly suggest in the pleadings
as the one that ought to be adopted and pursued by the South African
Govemment in South West Africa. That is a policy of attempting to274 SOUTH WEST AFRICA
.treat all the peoples of South West Africa as an integrated political unit
with universal adult suffrage. Respondent states, Mr. President, as its
finn conviction, that this alternative is Iikely to lead to untold misery
and strife to the probable extent of violence, bloodshed and chaos, of a
nature similar to what is unfortunately experienced in other parts of
Africa.
In Respondent's view, Mr. President, this would be a situation that
might be pleasing to revolutionaries and their associates, but hardly
to anybody else. And, Mr. President, Respondent points out that this
campaign, of which these proceedings form part, is quite openly aimed
not only at conditions in South West Africa, but also at conditions over
the whole of southern Africa, with the same implications and prospects
for aUof the peoples concerned. When we take those factors into account,
Mr. President,-these crucial issues and their practical signifi.cance
then it becomes evident, in our submission, that this case can indeed,
in my leamed friend's words, be said "profoundly to affect the well
being and progress of a multitude of individual human persons", in a
much Iarger sense than the representatives of the Applicants are appar
ently prepared to acknowledge.
It is hardly necessary to add, Mr. President, that in these circumstan
.cesit is, in our respect fui submission, imperative in a particularly mean
ingful sense that no stone should be left unturned to place at the Court's
disposai every possible means of enlightenment in order to enable it to
come to a just conclusion on these issues with these implications I have
mentioned.
Mr. President, in making these comments we realize full well that the
Applicants have indicated a certain attitude in regard to the facts on
the record which may in a sense be said to tend towards curtailing the
issues of facts to the minimum. They have, as the Court is aware, indi
cated that, subje co~argument asto relevance, they do not dispute any
of the facts, as distinct from inferences from facts, which are set out in
the Respondent's pleadings, save in so far as they may indicate other
wise in their pleadings or in their presentation of their case to the Court.
But as 1 have just pointed out, Mr. President, the Parties have arrived
at tremendous extremes of divergence as to the evaluation of these facts;
asto the conclusion at which the Court is to arrive in regard to policies
to be applied with a view to promoting the well-being and progress of
the inhabitants of the Territory. This very extreme divergence makes it
evident, in our submission, that the major sphere of contention between
us relatesto the meaning, to the value and to the weight to be attached
to the facts in coming to a conclusion about policies.
Mr. President, it is self-evidenthat for the purposes of deciding such
an issue the tacts have to be properly known; they have to be properly
understood and they have to be viewed in proper perspective in relation
to one another and to policies, theories and principles that may be raised
for consideration. Only then, in our submission, can proper weîght and
value be attached to the facts, and it is, amongst others, this whole
process of weighing, of analysing and understanding in perspective
that we refer to under the term "evaluation and adjudication". It seems
to us to be a task on which any court would welcome any assistance it
could get, and it is mainly for this very important purpose, Mr. President,
that we intend to call witnesses and experts and for which we are pro
·posing this inspection in loco. ARGUMENT OF MR.' DE VILLIERS 275
It may also be desirable for me, Mr. President, to refer very briefly to
the different attitudes taken by the Parties in regard to the basis upon
which there can be adjudication of the charge regarding alleged violation
of Article 2 of the Mandate-regarding the well-being and progress of
the inhabitants. As the Court knows, our first contention in that regard,
asto the basis or criterion for adjudication, is that on a proper construc
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
ali. Of course, if that proposition is to be accepted then no further ques
tion as to a decision of disputcd facts, or of evaluating those facts, or
of apply1ng policies to those facts, .would arise for this Court.
But, Mr. President, our alternative is that if the Court finds there is a
basis upon which it can adjudicate, that basis is, in our submission,
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, orwhether 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 the nature which appears to be suggested in the Appli
cants' 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 promoting well-being and pro
gress of the inhabitants, and that that power is now being abused and
applied with a different purpose, namely the purpose of oppressing
certain ofthe inhabitants of the Terri tory for the benefit of other inhab
itants.
That is the nature of the charge as we understand it, as it was brought
against ·us in the Memorials of the Applicants; that is the way in which
we have analysed it; that is what we suggest as a matter of law to be
the only possible basis upon which thcre 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.
Now my leamed friend M.r. Gross, suggested that if that basis were
to be adopted for adjudication, then that also would be equivalent to
no adjudication at ali. 1 must frank!y say that I do not understand that
suggestion at aiL The question whether, in the sense I have described,
a governmental power is imbued with good faith directed at the autho
rized objective of the powers given to it, or whether it is imbued with
bad faith directed at an unauthorized objective, that surely, Mr. Presi
dent, must under all circumstances be a question of fact. It is a question
of the type which arises regularlv in municipal systems where there is
an exercise of a power of review on the part of a court of the very ques
tion whether there has been a violation of a discretionary power or duty
by sorne authority, sorne body, sorne individual person, sorne incumbent
of an office.
In sorne legal systems, as far as we know, there are special courts
which deal with this type of case-in deciding whether there has been
an abuse of power on the basis of the type of principle I have men
tioned-and particularly, in an appropriatc case, on the basis of good
or bad faith of the person or body concerned. •
In sorne cases, ordinary courts of the land-the superior courts-fulfil
that function and decide cases on the basis of this criterion. But, Mr. SOUTH WEST AFRICA
President, the point 1 want to stress is this, that in ail those instances
the enquiry is one of fact. It caUs for the determination of disputed
issues of fact, where necessary. It caUs also, and under ail circumstances,
for a proper understanding, for a proper evaluation, for a proper assess
ment, of all the facts involved in a given situation. Now, that is particu
larly the case where the allegation of the party alleging bad faith takes
a particular form, which it very often does in proceedings of such a
nature. The form of the allegation is very often this, that the action, 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 toits conclusion;
that as a matter of inference there must have been something of the
nature of bad faith, or an ulterior motive on the part of such an authority
or person. That is the form that an allegation of this type very often
takes.
It appeared to us to be the form of the charge which was brought
against us also by the Applicants in the Memorials (1), where they
said, Mr. President, at page 104 thereof, that the issues regarding Article
2 "do not involve conjecture"-those are their words-so that "differ
ences of opinion could arise" about them. They say that is not the type
of situation that we have here at ali, where there could be conjecture or
differences of opinion. Their allegation is, as stated in the Memorials,
that Respondent's violation of duty regarding the well-being and pro
gress of the inhabitants is "beyond argument"-those were their words.
Mr. President, it is hardly necessary to stress how important evaluation
of the facts is with a view to adjudication upon such an averment and
an enquiry along those !ines.
Now it is true, Mr. President, that in their Reply the Applicants indi
cate a different line of attack. They say that the criteria for adjudication
on the issue relating to well-being and progress are to be objective orres
objective criteria-for determining the question whether Respondent's
policy and conduct are, or are not, in violation of its obligations under
the Mandate. And they introduce for this purpose of objective evalua
tion so-called universally accepted norms and standards, as applied
by civilized governments in the government of their peoples and terri
tories. And they say, in effect, Mr. President, that South Africa is not
complying with the minimum standards involved in these universallv
accepted practices. •
Now our answer to that, Mr. President, is that the Applicants are,
to a very large extent, confusing in their submission a question of
method with a question of principle; the principle being the factor
that relates to standards, the method bemg something completely
different.
We are dealing with the problem of a number of different peoples,
with different cultures, with distinct identities, living in one geographi
cal territory. The principle involved, the objective, the standard or the
norm-if you like-is the ideal of promoting the well-being and progress
of everybody concemed; of making it possible for them to live in happi
ness, in harmony and full self-realization. That is the principle. The
method is the question "How does one set about that?"-"How does
one set about achieving that principle?" Does one set about it by at
tempted integration, as is suggested in this particular case by the Appli
cants, or does one set about it on the basis of recognizing the separate ARGUME~T OF MR, DE VILLIERS
identity of the various urùts comprising the whole, of respecting that
separa te identity, of developing upon that basis in order to fmd a sound
method of future co-operation between the various peoples concerned.
That is the question of method, as distinct from standard.
Mr. President, in all cases where there are plural societies of this na
ture, the answer to be arrived at on the question of method is not neces
sarily the same.
We find, Mr. President, that in regard to the situation in Ceylon, for
ip.stance, the Tamils have been, to a large extent, repatriated to the
lndian continent. That is the method for a solution sought for the par~
ticular problern existing on that island.
In the case of Cyprus a different solution is being attempted, in the
tragic circurnstances that apply there. Whether that is the correct soiu~
tion, whether it will prove to be the correct one in the course of time,
Iam unable to say. I do not suggest that 1 know enough of the circum
stances there to be able to suggest an answer to that question, but the
point I wish to make, Mr. President, is that the solution to be found to
a problern of this nature depends upon the merits of each particular
case. The very point I wish to make is that one is not to judge, or to
prejudge, a problem of that kind without knowing all aspects of the
facts involved in the particular situation.
It is, in our respectfui submission, complete nonsense to say that there
is a universally accepted standard applicable to the method to be ap~
plied in ali circumstances where a problem of this kind arises. That is a
complete confusion between the question of method and the question
of standard or principle.
In so far, Mr. President, as these suggested universally accepted norms
and standards do involve principles at ali, they are indeed principles
of a somewhat elernentary character which are, in fact, universally
accepted, such as principles to the effcct that there is to be no oppression.
Then, Mr. President, the only question involved is whether, in a partic
ular situation, where a particular problem arises, the attempts at a
solution for that problern are to be viewed as involving oppression or
as involving avoidance of oppression. 1 am just using the example of
oppression; there are other elementary norms of good conduct, of ideals,
that one puts in that regard, which also, indeed, are accepted, not the
least by the Respondent Government. 1 emphasize, however, that when
it cornes to a problem of finding a basis for different peoples to live in
harmony with one another, then it becomes a question of method. If
one thinks of standards in this regard at aU, one has to investigate the
facts of the particular situation very clearly in order to see whether there
is indeed any violation of generally accepted standards, or whether there
is full compliancewith them and a mere difference of opinion as to what
would be the best method of compliance with them.
So that, Mr. President, 1ernphasize that in whichever way the question
of adjudication on the rnerits of the complaint regarding Article 2-well
being and progress-is considered, on whatever basis one approaches
that adjudication, the one suggested by my learned friends on behalf of
the Applicants, or the one we suggest, it cornes back to the same theme
every time, and that is that ali facets of the factual situation are to be
properly understood and seen in their perspective. Mr. President, it is
against this background, and for these reasons which 1 have mentioned,
that we propose this inspection. It is against the background of the SOUTH WEST AFRICA
extraorclinarily wide divergence between the Parties, both in respect of
the motivation behind these proceedings and in respect of the merits of
the solution to be arrived at as regards policy. It is also because of the
importance of appreciating ail aspects of the facts, and particularly the
factor which 1mentioned earlier, the importance of seeing African reality,
as distinct from just reading or hearing aboutit.
Mr. President, we submit respectfully, for these reasons, that an in
spe<;:tionof a certain minimum number of African territories is absolutely
essential for a just and proper adjudication upon the factual aspects of
the crucial issues regarding the promotion of well-being and progress.
We contend further, Mr. President, that if the purposes which 1 have
mentioned are to be properly served, then various categories of States
or territories ought to be included in the operation. \Ve submit that,
apart from South West Africa, and portions of the Republic of South
Africa, there ought to be included African States falling both in the
category of the Applicant States which have for a long time been in
dependent, and, Mr. President, in the category of newly independent
States which were until recently under colonial rule or trusteeship ad
ministration. It seems evident that considerations pertaining to these
categories of States-long-independent ones or newly independent
ones-would not necessarily be the same. ·
Mr. President, on the specifie authority of the South African Govern
ment, 1 hereby propose that such an inspection be undertaken, either
by the Court, or by a committee of the Court, whichever may be pre
ferred, and at an opportune time to be decided by the Court, after con
sultation with both Parties. Likewise on specifie authority, Mr. Presi
dent, 1 hereby offer every practical assistance and co-operation at the
command of the South African Government with a view to putting this
proposai into practical effect.
To be more specifie and to clarify the proposai fully, I emphasize that
it falls into three parts, the first of these parts being itself sub-divided
into two sub-parts-if 1 may cali them that.
Firstly, we propose and offer to the Court, orto its committee, as may
be decided, an inspection of the Territory of South West Africa. Wc do
not wish to impose any restrictions in that regard. In addition to
matters to which the Respondent itself would wish to draw the attention
of the Court, or the inspecting committee, this part of the inspection
made in the Territory may include anything which the inspecting body
itselfmay wish to see, or which the Applicants may wish to bring to its
attention.
Mr. President, while the South African Government does not lay any
daim to perfection-no earthly government could do that-it certainly
considers that in relation to the issues in this case it has a great deal
which it would like to show to such an inspecting committee in South
West Africa, and nothing to hide from it. The invitation naturally in
eludes provision for representatives of both Parties to accompany the
inspecting body. Practical details about itinerary, the size of the travel
ling group and soforth could be arranged by discussion, or by such other
means as the Court may think fit.
In addition to such an inspection of South West Africa, this part of
our proposai encompasses, as a distinct sub-part thereof, 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 South West ARGUMENT OF MR. DE VILLIERS 279
Africa. As the Court will readily appreciate, there are reasons of principle
and relevancy why this part of the proposai caru10t be so completely
unlimited and unqualified as in respect of South West Africa itself.
The Court is asked in this case to adjudicate regarding policy and con
duct in respect of South West Africa, not South Africa. Apart, therefore,
from precepts of relevancy which the Court itself would no doubt wish
to impose and observe for that reason, the South African Government
considersthat it has a special responsibility itself in this regard, namely
to guard against the danger that an act of courtesy on its part may be
misconstrued as submission of its domestic affairs to adjudication in
proceedings such as the present-something which of course would be
wholly inappropriate and bas never been intended. At the same time,
Mr. President, as the pleadings show, there are matters within the
Republic which, within a limited sphere, are relevant to the adjudication
in respect ofSouth West Africa. In the circumstances our proposai is
that the extent and particulars of a visit to the Republic be determined
in consultation withthe South African Govemment, with due regard to
any wishes that the Court and any of the Applicants may express in
respect thereof. What applies to the Republic applies also to the area
of Walvis Bay, which is part of the Republic and not part of the Territory
of South West Africa.
Secondly, Mr. President, we propose that a visit to the Applicant States
Ethiopia and Liberia be included, for the purpose, and to a sufficient
extent, to enable the Court or its committee to forma general impression
of comparable conditions and standards of the ma~er inadlmoral well
being and social progress of the inhabitants concerned; a limited pur
pose, limited to what I have just mentioned. The South African Govem
ment is fully aware of the fact that it is its own policies and achievements
in South West Africa that stand indicted, and not those of the Applicant
Governments in their own countries. Nevertheless, Mr. President, in our
submission a visit to these countries would yield information very highly
relevant to the particular purpose, though a limited one, which I have
mentioned. For the reasons I gave before, it is almost impossible for visi
tors from outside Africa to view and evaluate well-being and progress in
an African territory like South West Africa fairly and in a proper per
spective unless they have bad an opportunity of observing comparable
standards and conditions in other parts of Africa. In the absence of such
an opportunity it stands to reason that there is a very great danger of
perspective becoming warped, quite unconsciously, by the introduction
of European, or American, or Asian standards into an African context.
The Applicant States are the only sub-Saharan African States which
have not to any extensive degree been subject to colonial, mandatory
or trusteeship administration. Mr. President, on account of their avowed
interest inthe material and moral well-being and the social progress of
the inhabitants of South West Africa, their Governments would no doubt
.be similarly concerned about the pursuit of these same objectives in
their own countries relative to their own populations. We submit, there
fore, that inspection by the Court, or its committee, of practical attempts,
achievements, standards and conditions in the Applicant States, partic
ularly as regards the large masses of the population, could therefore be
of considerable assistance to the Court in evaluating the policies and
.practices of the South African Government in South West Africa. This
is not a matter of introducing policies and their application in the African280 SOUTH WEST AFRICA
States for adjudication by tlùs Court; it is a matter of assisting the Court
in properly fulfilling its task in regard to adjudication and evaluation of
the policies applied in South West Africa. 1t seems highly reasonable there
fore, Mr. President, in our submission, to expect of the Applicant Govem
ments, which are askinS'the Court to make tlùs adjudication, that they
should render such assistance to the Court by making possible such a
visit to their territories.
Tlùtdly, Mr. President, we propose that a visit should be included to
one or two additional 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 I have just mentioned in regard to the
Applicant States. \\'hile we do not wish to limit the Court's choice in
a11yway, we would respectfully suggest that, by way of contrast, at least
one of these tenitories should be a former mandated and trusteeship
territory. It is in our submission quite obvious from the record that the
Applicants are in these proceedings acting as the representatives of ail
independent African States. Consequently, in our submission, they ought
to have no difficulty at ail about obtaining, at the Court's request, the
necessary invitations for an inspecting group to visit one or two of such
territories, or in assistinghe Court, as far as may be necessary, to obtain
the necessary co-operation of the governments concemed.
That then, Mr. President, is the proposai which we respectfully make
for the consideration of the Court. We shall await the Applicants' reaction
to that with interest. Perhaps I should first, Mr. President, with your
leave, give my learned hiend an opportunity of indicating now whether
he would like to teply now or at a later stage. I thank you.
Mr. President, I shall proceed now to deal with the legal issues which
form the subject-matter of, shall 1say, this first phase of the proceedings.
The broad scheme in which we intend to deal with the various questions
may be indîcated shortly as follows. Firstly, we shall deal with the legal
issues underlying the Applicants' Submissions Nos. r, 2, 7 and 8-I refer
to the numbers given to the submissions in their Memorials (1), at pages
197-198. Mr. President, these legal issues are whether the Mandate is
still in force, and, if so, whether Respondent is obliged to report and ac
count in respect thereof to the General Assembly of the United Nations,
as it was obliged to report formerly to the Council of the League, and
whether it is obliged for that purpose also to transmit petitions from in
habitants of the Territory to the General Assembly. There is, as we in
dicate in the pleadings, no dispute about the fact that the Respondent
Government has refused to render reports and to transmit petitions to the
General Assembly, as it was previously obliged to do to the organs of the
League. The dispute therefore turns on a question of law-a question
whether there is any legal obligation to render such reports and to trans
mit such petitions. That is the first part of the legal argument with wlùch
we shaIl deal.
The second part comprises the legal issues as distinct from the factual
disputes concerning Applicants' Submissions 3 and 4, that is, regarding
the charge of violation of Article z, paragraph z,of the Mandate, i.e.,
failure to promote to the utmost material and moral well-being and
social progress. The legal issues, Mr. President, concern the questions
whether the factual disputes in tlùs regard as they have now emerged,
are in law justiciable by this Court at ali, and if so, on what basis or on
what criterion. ARGUMENT OF MR. DE VILLIERS
Thirdly, Mr. President, we shall make brief reference to sorne of the
legal questions pertaining to Applicants' Submissions 5 and g, that is,
regarding alleged violation ofthe Territory's separate international status
and alleged attempts at unilateral modification of the terms of the Man
date. I have said "brief reference to sorne of the legal questions", Mr.
President, because it seems to us that ali the legal questions arising in.
this regard cannot appropriately be dealt with in full by us now, since
sorne of them are intertwined with facts and with detailed aspects of the
Applica.nts' charges which have not been elaborated by them at ali in
these Oral Proceedings. And we shaH have to wait for a full elaboration
in that regard in order to know exactly what case it is that we now have
to meet in that regard.
Those are the three broad headings under which our treatment of
the legal issues will fall, and 1 shall proceed now to deal with the first
one, namely the issues underlying Submissions r, 2,7 and 8-the ques
tion whether the Mandate is still in force, and, if so, whether there is an
obligation of accountability to the General Assembly of the United
Nations.
The Court will recall that we deal with these legal questions in the
Counter-Memorial, Book II. The whole of Book II is devoted to this
topic, and we deal with it further in the Rejoinder, in answer to the Ap
plicants' Reply (V, pp. r3-99).
Mr. President, the arguments relating to existence or non-existence of
the Mandate and to existence or non-existence of an obligation of ac
countability to the General Assembly of the United Nations are to a
considerable extent inter-related, and catmot be separated completely
into watertight compartments. But, Mr. President, the conclusions on
the two questions do not necessarily go band in band. If one concludes
that the Mandate is stilllegally in existence, it does not follow, as a matter
of course, that accountability must necessarily be in existence-account
ability to the General Assembly of the United Nations. Vice versa, if
one concludes that accountability is no longer in force, it does not neces
sarily mean that the Mandate is no longer in force. There is a possibility
of divergent conclusions about these two questions-they do not neces
sarily go band in band. There are contentions before the Court, of course,
that they ought to go band in band; we are not dealing with the merits
of those at the moment. I am just pointing out that there is the possibility
of diverging conclusions, and, therefore, the argument relatmg to the
two questions is not entirely one integral whole-there are certain con
siderations which pertain to both questions, but there are also certain
considerations which pertain separately to one and separately to the
other. In so far as that kind of separation is possible and is desirable
it is desirable in our submission-1 shall follow the same order as we did
on the pleadings, and that is to deal first with the question of accountabil
ity and thereafter with the question of the existence or otherwise of the
Mandate itself.
The reason for that is, Mr. President, the nature of our contention in
this regard. Our contention is that accountability lapsed with the dis
solution of the League, and that as a result of the lapse of accountability
the further question arises, namely whether under those circumstances
the rest of the Mandate could, in accordance with the intentions of its
founders, survive, that is, without accountability. That is therefore the
sequence in which the questions in this regard arise, in our submission, SOUTH WEST AFRICA
on a proper approach to the question. Our first and main contention is
that accountability lapsed.
Mr. President, it is first necessary togo to the foundations and to in
dicate as plainly as possible how these two questions arise. They emerge,
of course, firstly from the terms of the compromise agreement which was
arrived at between the interested parties at the peace settlements follow
ing on the First World War; and secondly they arise from the manner
in which those terms-the terms of the compromise-were affected by
new settlements which were made after the Second World War.
The original compromise agreement after the First World War con
cerned the disposai of certain conquered tcrritories which were, in terms
of the agreement, to become mandated territories. The agreement was
set out in Article 22 of the Covenant of the League and was in conse
quential respects elaborated in the actual mandate instrument issued in
pursuance thereof.
The terms of the compromise agreement are weil known-the terms
of Article 22-and of the mandate agreement. 1 merely want to stress,
for purposes of the present argument, certain aspects thereof. In para
graph I of Article 22 of the Covenant of the League there is cited the
agreement of the interested parties, viz., that ta the colonies, territories
and the peoples in question "there should be applied the principle that
the well-being and development of such peoplcs form a sacred trust of
civilization and that securities for the performance of this trust should
be embodied in this Covenant".
Paragraph 2 of Article 22 tells us sorne more about the method by
which effect is to be given to this principle. It says that:
"The best method of giving practical effect to this principle is
that the tutelage of such peoples should be entrusted to advanced
nations who ... can best undertake this responsibility, and who
are willing to accept it, and that this tutelage should be exercised
by them as Mandatories on behalf of the League."
So we find the principle of a sacred trust; we find the method of giving
effect toit is a tutelage, a guardianship, by an advanced nation, and that
that guardianship, that trust function, is to be exercised by the advanced
nation concerned as a Mandatory on behalf of the League. That is the
basic concept.
Now, Mr. President, paragraphs 3 to 6 of Article 22 proceed to indicate
what different kinds of mandates there should be, the differentiation
between them, and different substantive provisions and safeguards which
are to be imposed in the various mandates. I skip those for present pur
poses, and 1 pass on to paragraph 7, which provides that: "ln every case
of mandate, the Mandatory shall render to the Council an annual report
in reference to the territory committed to its charge." Here then, the
idea of an advanced nation, acting in a fiduciary capacity as a trustee or
a guardian, and doing so as a Mandatory on behalf of the League; and
in consonance with this conception of a Mandatory on behalf of the
League-that particular Organization, the League of Nations-the
Mandatory is to make a report to the Council of the League, a particular
organ of that Organization specifically mentioned by name.
In paragraph g provision is made for the constitution of a Permanent
Mandates Commission "to receive and examine the annual reports of the
Mandatories and to advise the Council on ali matters relating to the
observance of the mandates". ARGUMENT OF MR. DE VILLIERS
Now, Mr. President, we tum to the Mandate for German South West
Africa, which was one of the mandate instruments issued in pursuance
of Article 22 of the Covenant of the League. We find again, in the third
preamble, that the fact is stated that the Mandatory "has agreed to
accept the l\landate in respect of the said territory and has undertaken
to exercise iton behalf of the League of Nations ... ". That element is
then finnly introduced into the Mandate itself.
In Articles r to 5 of the Mandate-! am not going ta deal with them
now-thcre are set out substantive powers, substantive obligations, to
be imposed upon the Mandatory-substantivc powers conferred, sub
stantive obligations imposed. Article 6 provides: "The Mandatory shall
make to the Council of the League of Nations an annual report to the
satisfaction of the Council, containing full information with regard to
the territory, and indicating the measures taken to carry out the obliga
tions assumed under Articles 2, 3, 4 and s."
We find then, Mr. President, this concept of a Mandatory on behalf
of the League, this specifie international organization whose constitution,
composition, conditions for membership, manner of operation and so
forth, are ali set out and detennined in the very same instrument of
which Article 22 fonns a part.
In keeping with this concept of a manda tory on behalf of this particular
Organization, we find an obligation to report and account to a specifie
organ of that Organization, viz., the Council of the League, taits satisfac
tion.More specifie it could hardly have been-with a provision that that
organ is to be assisted by another specifie one, the Permanent Mandates
Commission.
Now, Mr. President, following on the Second World War, we know
that the League was dissolved and that there was no longer a Council of
the League or a Permanent Mandates Commission, and now the question
arises, firstly,ust that obligation to report and account not now be
regarded as having lapsed? The obligation is defined in respect of its
very content, as relating to a specifie body, a specifie organ of a specifie
organization, the powers, constitution, and manner of operation which
are described in the very same instrument. That Organization falls away,
the organs fall away. On an application of ordinary legal principle, that
obligation would become incapable of performance and would lapse.
That is the first question that arises, and the second question is, if it then
did lapse, can the rest of the mandate be regarded as having survived
in law? ·
Now, Mr. President, consideration of these questions, and particularly
the first one, whether there was a lapse of the obligation of accountability,
is of course affected by the fact that a new international organization,
viz.,the United Nations was brought into existence at the conclusion of
the Second World \Var. It was actually brought into existence sorne nine
months before the dissolution of the League and it existed contempora
neously with the League for that period. That was a new international
organization and we have the submission beforc the Court that, whereas
the obligation of accountability was previously owed to the organs of the
League of Nations, which 1 have mentioned, that obligation is now owed
to a new supervisory authority, namely the General Assembly of the
United Nations.
The fundamental question is, Mr. President, whether by sorne process
or principle of law a substitution of supervisory organ has bcen effected in SOUTH WEST AFRICA
sucha wayas t? ?e bindi n law on the mandatory; in such a way asto
couvert the ongmal obligation of the mandatory to report to organ A
into a new obligation now to report to organ B. That is the fundamen
tal question. The Respondent's submission is that there has been no
such substitution of the supervisory organ. The Applicants say 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 of my
argument.
Now, Mr. President, where one party avers a positive, as the Applicants
do in respect of thisissue-they make the positive averment that there
has been this substitution of the supervisory organ-and the other party
makes a negative averment, or, shall we say, denies the positive averment,
as we do in this instance, then it is customary to have regard first to the
grounds advanced by the party making the positive averment, so asto
see what are the grounds upon which he seeks to come to his conclusion,
to analyse those grounds to see to what extent they are sound or not, and
then to consider in relatîon to the case which has been made out, the
case for the other side, the case which is to the effect that such a positive
has not been established.
In this instance, Mr. President, in so far as this initial exposition of the
broad issue between the Parties is concemed, 1 am going to invert that
order, and 1 am going to do it for an elementary practical reason. The
reason is that the statement of the Respondent's attitude in this regard,
which we are now going to present first, is a simple, elementary one which
can be set out concisely and clearly without any difficulty at all. On the
other hand, if l am to state now to the Court, even broadly, what the
Applicants' attitude is in that 1egard, then 1will have togo into a good
deal of analysis, of dissection, of reconstruction amounting in sorne re
spects almost to guesswork, in orderto find out what exactly is the gist of
the Applicants' present attitude. And 1 stress "present attitude" in that
regard, Mr. President, because the matter does not stop there. 1, unfortu
nately, have to point out also, and in advance, that the Applicants' case
in this regard through the various stages of these proceedings has under
gone very marked changes, very marked shifting of ground, and at the
vatious phases of these proceedings the case, this positive case on behalf
of the Applicants which we are called upon to meet, has changed, so that
it is very difficult to know from time to time exactly what the case is
now and what we have to meet.
I do not say this in any derogatory sense, Mr. President, or in order
to be facetious about it. I say it because1 submit that this factor has a
strong bearing, although an indirect one, on the merits of the respective
contentions. I submit that that reflects the difficulty of the Applicants in
being able to submit to the Court a cogent and coherent case in this
respect. They are clear about one thing, and that is the result at which
they wish to arrive. They are anything but clear about the grounds upon
which they wish to arrive at that result.
1can now put the Respondent's case to the Court very broadly. 1shall
deal with the various details at a later stage when it cornes to weighing
the Respondent's case against that of the Applicants.
The Respondent's case can be put by way of the following propositions.
Firstly, Mr. President, there is this very basic fundamental principle
relating to international obligations. \Vhat we are concemed with here is
an obligation-an alleged obligation to report and account, in respect of ARGUMENT OF MR, DE VILLIERS
administration over a territory, to an international supervisory organiza
tion. From its very nature, Mr. President, that obligation is one which
could not have derived from ordinary principles of civilized law, as
applicable in various States, and as may have been seen to be incorpo
rated in international law. There are, as far as 1 am awarc, no principles
of general law which oblige anyone to submit to supervision by any
organization, unless there is specifie provision to that effect. And specifie
provision in the international law context in this regard can only be an
obligation incurred with the consent of the party on whom it is sought to
impose this obligation. It can only be an obligation of the nature of a
treaty obligation, something which has acquired the consent of the party
said to be obliged.
Mr. President, 1 had begun with a very broad exposition of what our
case is in regard to Article 6 of the Mandate, the obligation of account
ability.The first point which 1 was emphasizing at the time of the
adjoumment was that the obligation is of such a nature that it could
only have arisen from the actual consent on the part of the Mandatory
in thiscase-on the part of the State upon whom it is sought to impose
this obligation. When I say an obligation of the nature of a treaty obliga
tion, it does not of course necessarilyean that the mandate instrument
itself iso be viewed as a treaty or convention. The Court knows of the
difference of opinion which was expressed in that regard in the rg62
proceedings on the preliminary objections, on the question whether the
mandate instrument is not to be viewed as an international agreement
or treaty in itself. The view is nevertheless that it proceeded from a treaty
or convention, namely the Covenant of the League, that it was an instru
ment created in pursuance of powers granted in a treaty or convention
and that it therefore possessed a "certain background of consent"-if 1
might borrow that phrase from the dissenting opinion of the honourable
President of the Court and Sir Gerald Fitzmaurice. The view, as far as
that pointis concerned, is that it is completely immaterial whether one
views the mandate instrument as being in itself a treaty. The fact is,
however, that this obligation of reporting and accountability could not
have arisen save in the manner of a treaty obligation, that is from the
consent of the State concerned.
That is a fundamental consideration. 1 shall endeavour, in analysing
the Applicants' case, when 1 come to that at a later stage, to point out
the vagueness that exists in that respect, because this after ali is the most
important part of this particular aspect of the controversy, viz., whether
there is an obligation arising from consent on the part of the Respondent,
or whether it is sought now to impose an obligation upon the Respondent
irrespective of its consent. And 1 submit that at certain phases of the
presentation of Applicants' case in this regard, it has assumed the charac
ter of, in effect, wanting to impose an obligation upon Respondent
independently of its consent, but 1 know of no principle of international
law which would make such a resulta possible one. That would destroy
the very basis upon which the relationship between States works in
international society-in international law.
The next important step in our reasoning, Mr. President, is the one
which 1 have already foreshadowed, namely that in its wording and in its
probable intent, when regard is had to the circumstances under which the
mandate system was brought into existence, it seems quite clear that the
obligation in its initial form related to a specifie body, a particular organ 286 SOUTH WEST AFRICA
of a particular organization, and that the reporting and accounting had
to be to its satisfaction.
This is so, Mr. President, in our submission. not only in a narrow or
teclmical or formai sense. My learned friend, Mr. ;\loore, on behalf of the
Applicants, suggested that the Respondent is incurring difficulties
because of a narrow, formalistic approach. Our submission is that our
approach is anything but narrow or formalistic, as far as this is concerned.
When we look at the wording of the particular obligation, in the places
where we find it-the only places where we find it-in Article 22 and in
the mandate instrument, we do not divorce it from its context, we read
.it in its context as part of the document of which it forms a part-part of
the whole system of the concept of a mandatory on behalf of the League.
We look at .the wording. We do not prefer any particular meaning to any
other particular meaning. It is not a matter of applying the rule that the
natural construction of the natural meaning of the words in the context
is to be preferred to any other meaning of which the words may be
capable, because the mere application of that principle presupposes that
the words are capable of more than one meaning. Here there is nothing of
the kind. It is not a matter of preferring one meaning to another; it is
giving effectto the only meaning which the words are capable of bearing.
·The words can only mean that particular body to whose satisfaction the
report was to be made. It does not speak of international supervision in
general. 1t does not speak of accountability to an organized international
community orto a similar vague concept. lt speaks only of this particular
concept and there is no question of difficulty of interpretation--of
preferring one meaning to another. As a matter of interpretation it can
mean only one thing.
Then, Mr. President, as a matter of probable, practical intent, again it
can mean only one thing. I am not going to deal with this aspect of the
argument fuHy now-1 shaH elaborate it later in weighing our argument
against that of the Applicants, but 1 do want to point out broadly that
there were practical considerations in the League's system which per
tained to the constitution and to the manner of functioning of the
supervisory body, the Council of the League. And those considerations
operated to protect a mandatory against the possibility of an abuse of the
supervisory power or against the possibility of unfair interference with
mandatory administration. There were very carefully devised checks and
balances in the whole system so asto prevent abuse or to prevent unfair
interference with mandatory administration.
The history shows, as we shall demonstrate later, that, in the negotia
tions which preceded the compromise agreement which went into Article
22 of the Covenant, very material weight was placed by certain of the
Mandatories, including Respondent's representatives, upon the fact that
the supervisory organ would consist of certain States, or representatives
of certain particular States. The history of the negotiations shows,
further, that marked weight was attached to the fact that, before there
could be final consent on the part of the parties concerned--on the part
of the mandatory States-to submit the particular territories in their
possession to the mandatory system, they should know how this whole
system-the whole League system-was going to work, and, therefore,
there could not be any definite agreement upon that point until the
whole League system and the manner of voting, the manner of func
tioning, was finally devised, ali of which, in our submission, goes to show ARGUMENT OF MR. DE VILLIERS
and to emphasize that as a matter of practical importance, not as a
matter of technicality, the obligation related to particular supervisory
machinerv and to none other.
Consequently, our submîssion is that consent on the Mandatory's part
to supervision by that particular body cannat imply any consent on its
part to supervision by any other international body. Supervision by any
other international body would bring about an obligation of a different
content to the one originally consented toby the mandatory power, and
inasmuch as that would then be in essence and in substance a different
obligation, therefore, a fresh consent onthe Mandatory's part would be
required in arder to rnake it liable to such an obligation.
It is against this background that one has to view the events of the
years 1945 and 1946-the end ot the Second World War-and what
further emerged therefrom. The United Nations, in our submission, and
it seems to be entirely common cause, was not in any sense a general
successor in law tothe League of Nations or a continuation of the League
of Nations. In fact there were political reasons, stressed by sorne of the
leading founders of the United Nations Organization, why they preferred
not to have any notion of a general successorship or of the United Nations
being merely a continuation of the League of Nations. It was a distinct
international society.
To a large extent there was overlapping as far as membership was
concerned, the same States being Members of the United Nations and of
the League of Nations at the time of its dissolution, but that was so only
to sorne extent-it was not completely so. There were a number of States
which were founder Members of the United Nations and were not at the
time Members of the League of Nations. Conversely, there were a number
of States that were still Members of the League of Nations at the time of
its dissolution which did not become founder Members of the United
Nations.
In the Charter of the United Nations no provision was made for
supervision by any United Nations organs in respect of mandatory
administration-administration under a mandate. The United Nations
Charter, as the Court is aware, created its own system of trusteeships,
but in arder that any terri tory, whether mandated territory or any other
territory, be brought into it, that would require new agreement-volun
tary submission-by the State in control of the particular territory to
place it under the trusteeship system of the United Nations. That
appears to be common cause and that is also what the Court found in its
rgso Opinion.
In providing for supervisory organs for the purposes of this trusteeship
system, the United Nations Charter created organs which would function
in a materially different way from the supervisory organsin the League's
system relating to mandates. The unanimity principle which applied in
the Council of the League, whereby decisions could only be taken by
unanimous vote, would not apply in the United Nations' organs. The
principle which applied to the constitution of the Permanent Mandates
Commission, that it was to be a commission of independent experts and
not a political body, did not apply in respect of the Trusteeship Council.
These differences, Mr. President, in our submission, affected the very
features which made the League supervisory system, as a system, more
attractive and acceptable to Mandatories, and which ostensibly influenced
them in agreeing to place themselves under the supervision of organs so288 SOUTH WEST AFRICA.
constituted and functioning in that particular manner. This emphasizes,
then, the difference between what supervision by the United Nations
organs would be as compared with supervision by the League organs, and
again emphasizes that the distinction is not a technical one but one of
great practical significance. Therefore, it becomes clearthat the consent
of the Mandatory to submit to supervision by the League organs in itself
could not bind it to an obligation to submit to supervision and account
ability to the United Nations organs.
In order to achieve that result, in order to achieve a substitution of
supervisory organs for the purposes of this obligation of accountability,
there would have to be new agreement, new consent, on the Mandatory's
part.
Our next proposition is, Mr, President, that the events of the years
1945, :rg46 and thereafter make it perfectly plain that no such consent
to a substitution of supervisory organs was ever given by Respondent.
ln particular we submit-I am just putting the submissions broadly
now-that Respondent's agreement to the United Nations Charter
involved no such consent. I have made that point already.
Secondly, we submit that analysis of the events during the establish~
ment of the United Nations and the dissolution of the League shows
clearly a general understanding between the States concerned. The
understanding was to the effect that outside of a trusteeship agreement
or other special arrangement between a mandatory power and the United
Nations, no Mandatory would be obliged to report and account to the
United Nations regarding compliance with its mandate obligations. We
submit that that general understanding emerges very clearly.
We submit further that the understanding is further confirmed by
attitudes expressed shortly after 1945-1946, and in particular during the
years 1947, 1948 and 1949, by United Nations Members in debates and
proceedings of the United Nations. We submit that the analysis further
shows that Respondent itself in fact never agreed, either expressly or by
implication, either to a trusteeship agreement or to any other special
arrangement involving accountability under the mandate to the United
Nations; and, Mr. President, very important because it bears on the
same point, that Respondent was never understood by other interested
States to have agreed to such accountability.
That brings us to the 1950 majority opinion in this respect. Our sub
mission in that regard is that, as presented to the Court already in the
earlier phase of the proceedings and as we present it again, that opinion
was on a clear interpretation based upon a finding of a tacit agreement
in 1945-1946 between all the interested States concerned-the Members
of the League at the time of its dissolution, the founder Members of the
United Nations-all the interested parties, including Respondent
whereby Respondent was bound to report and account to the United
Nations.
The analysis makes it clear thatthat was the view the Court took of the
situation; that although there was no express agreement at that time, the
conduct of the varions interested parties showed a general understanding
-a tacit agreement or arrangement on this point-that is, that there was
to be a substitution of supervisory organ, or a trans fer ofpowers, rendering
the Respondent now bound to United Nations supervision.
Our submission is, Mr. President, that when regard is had to certain
vital facts concerning events in that period, 1945-1946, and shortly ARGUMENT OF MR. DE VILLIERS
thereafter-facts which were not presented to the Court in 1950 and
which therefore could not have been taken into account by the Court in
arriving at its conclusion-if those facts are taken into consideration
then, in our respectful submission, that conclusion of the majority could
not have been arrived at in 1950.
These new facts are very important because they deal directly with
the question of the intent of the interested parties during 1945 and 1946-
the basis on which the Court came to the conclusion of a tacit agreement
or understanding. They concern, firstly, the fact that, during the pro
ceedings for the bringing into operation of the United Nations organs,
there was an express proposai to create United Nations machinery for
supervision of mandatesnotconverted into trusteeships, and that express
proposai was rejected and nothing was substituted for it. The significance
of this point, in our submission, emerges from this: in various other
respects, arrangements were made at that time in the United Nations for
special steps to be taken in arder to transfer sorne assets, sorne functions,
sorne powers, from the League of Nations to the United Nations, but this
particular subject, the powers of the League of Nations in respect of
mandates, the obligations of the manda tory powers to report and account,
was specifically raised as a proposition for possible special arrangements
for the possible creation of special machinery. It was raised and it was
tumed down and nothing was substituted in its place. That is, in itself,
very significant as being indicative of what the intentions were on the
part of the United Nations founders.
On the other hand, as far as the intentions on the part of the Members
of the League were concemed, we find the very significant Chinesé
proposai at the Final Session of the League Assembly: that was a proposai
that there was to be express provision for the League's supervisory
functions regarding mandates to be transferred to the United Natians
and for Mandatories to be obliged to report and account to the United
Nations, outside of trusteeship. The facts that we now present to the
Court, which we have presented in the proceedings already, which are
now before the Court, but were not before the Court in 1950, show that
there was this proposai and that it had to be abandoned because of
opposition thereto. Again the significance is self-evident and need not be
stressed.
Finally, we brought overwhelming evidence, not before the Court in
1950, of proceedings in the United Nations during the years 1947-1949,
overwhelming proof, Mr. President, of a general understanding that there
was no obligation on a Mandatory to report and account to the United
Nations, outside of trusteeship. Those are the facts-some of the facts.
They are not to be seen in isolation; they are to be seen in the total
framework of the events of the time and I shall deal with them in that
context in more detail later. But those are the significant new facts,
which bear so pertinently and so directly upon the question which the
Court decided and which it decided, in our submission, to the effect that
there was a general understanding of the opposite nature, namely that
there was to be a transfer of functions from the League to the United
Nations in this respect: that there was to be an obligation on the Manda
tories to report and account to the United Nations, even outside of
trusteeship.
So, Mr. President, to summarize our attitude, our contentions are,
firstly,that the original obligation was related to specifie supervisory SOUTH WEST AFRICA
machinery only. That being so, an agreement would be required in order
to render the Mandatory bound in respect of new supervisory machinery
but there was never any agreement, involving consent on the part of the
Mandatory, for substitution of any other supervisory machinery. That
plainly and basically is our case. It has always been our case in regard to
accountability. We have never wavered from that. That is the way in
which we have put it throughout these proceedings.
We now tum, .Mr.President, to a consideration of the Applicants' case
in that regard, as it has emerged through these proceedings. We start
with the Applications filed by the Applicants, even before thefili on he
Memorials. There it is quite clear that the Applicants pinned the1r faith
entirely on the 1950 majority opinion of this Court, without presenting
any argument in support of it. They simply said, in paragraph s. at
page 12 (1), of the Applications:
"the Union bas violated, and continues to violate Article 6 of the
Mandate, by its failure to render to the General Assembly of the
United Nations annual reports ... ".
In a later passage the Applicants, when attempting to establish the
existence of a dispute between the Parties, amplified their attitude as
follows:
"Ethiopia [or Liberia] bas contended ... that, as established by
the Advisory Opinion of July II, 1950, the supervisory functions
over the Mandate are to be excrcised by the United Nations ... "
(Applications, p. I4 (1), para.9A (r).)
That then is the position as far as the Applications are concemed. We
now turn to the Memorials.
There, Mr. President, for the purposes of both their Submissions
numbers 1 and 2-that the Mandate is in force and that the United
Nations has supervisory authority-Applicants relied solely upon the
Court's Advisory Opinion of 1950, which they asked this Court to re
affirm and they devoted pages 95 to 103 of their Memorials (1) to an
argument as to why there is to be reaffirmation by the Court of a con
clusion arrived at in an advisory opinion and to the general principle
of that proposition of reaffirmation, without any argument on the merits
of the question, relative to Article 6 of the Mandate.
So there we find no argument at aU in support of the reasoning of the
Court in its Advisory Opinion and no additional arguments for reaching
the same result.
Then, Mr. President, came our preliminary objection, in which we
found it necessary, in view of the form which the matter then took, to
raise the whole question of the possibility of succession, or otherwise, by
the United Nations to the League's supcrvisory functions. We there
stated our attitude, broadly as 1 have just indicated it. We stated this
attitude particularly in regard to the opinion of the Court which was
founded, as we submitted, on tacit agreement, and that there were these
new facts which cast an entirely new light on that factual question and
which, if known to the Court, would, in ali probability, have very materi
ally affected its conclusion. That we stated in the Preliminary Objections
at page 346 (1).
Now the Applicants reacted to this and their first reaction we find in
their Observations on the Preliminary Objections. There they stated
what their interpretation was of the Court's Opinion in 1950 regarding ARGUMENT OF MR. DE VILLIERS 291
the continued operation of the provisions of Article 6 of the Mandate, and
this is what they said (I am reading from the Observations, p. 429 (1)):
"There is a certain interconnection between Articles 6 and 7, but
it is not one which Respondent will wish to recognize.
Both the Majority and the Minority in the 1950 Advisory Opinion
held that the Mandate instrument did not lapse with the dissolution
of the League ... Having achieved this common understanding,
the Majority and Minority then divided on one question: succession
of the United Nations to the League's supervision of the Mandate.
The Majority found that there had been an automatic succession; the
Minority did not agree. Although the Minority held that the instru
ment of Mandate continues in existence, in declining to employ the
doctrine of succession, Judges l\IcNair and Read held that Article 6
could not be enforced onlv for the mechanical reason that there is no
Council of the League io which Respondent could report. Both
.Majority and Minority held, however, that Article 7 is in force. In
this connection, Judges McNair and Read found no mechanical
problem since Members of the League at the time of its dissolution
clearly continue in existence.
The interconnection, then, between Articles 6 and 7, is this:
according to the Majority view of Article 6, Applicants have standing
to invoke Article 7 by virtue of membership in the United Nations;
according to the Minority view of Article 6, Applicants have standing
by virtue of membership in the League at the time of the League's
dissolution."
I draw attention to the expression "automatic succession". My leamed
friend, in these proceedings, if 1 understood him correctly, seemed to
apologize for the use of that expression, particularly as far as the word
automatic is concerned and he said it might be better to speak of the
substitution of supervisory organs.
Mr. President, it is not quite as easy as that. It is not only a question of
terminology; it is a question of notion. The two notions-the two
concepts-are entirely different. In the passage which 1 have just read,
the concept was quite clearly that of a devolution, of a transfer of powers,
from the League organization to the United Nations Organization and,
band in hand with that, a transfer of competence to invoke the Court's
jurisdiction from League Members to United Nations Members. That
argument could not work without being seen in that light, as being a
transfer of powers, of competence, of rights. That is the concept which
the Applicants were advancing at that particular stage. As regards the
word "automatic", my Ieamed friend has made it clear now, that he did
not have in mind in the use of that word, any concept of a general
principle of international law, falling outside of consent orreaty obliga
tion, or outside of ordinary principles ofreaty interpretation: that much
is now clear. Mr. President, on analysis of the attitude stated in the
Preliminary Objections proceedings, in the Observations and afterwards
in the oral argument, the word "automatic" bad another significance.
It bad this significance, that there was no need for an agreement during
the period 1945-1946, in order to bring about a substitution of supervisory
organs, or a transfer of supervisory powers. The word "automatic" in the
context quite clearly was intended to indicate that the institution-the
obligation as originally agrced to by the Mandatory Power-bad, in SOUTH WEST AFRICA
itself, elements which brought about this substitution-this succession,
this devolution of powers-wben the events of 1945 and 1946 occurred.
That is clear from various expressions used by Applicants, particularly
in elabora tingwhat they meant by this concept of automatic succession
and in interpreting the majority opinion of 1950 as having rested upon
such a notion of automatic succession.
I would like to refer the Court first of ali to the Observations (1)
themselves at page 481, where after reference to varions authorities,
various decided cases in which a broad interpretation, in the Applicants'
submission, was given to instruments involving humanitarian objectives
and high ideals, they made the submission that-
"The implementing provisions of such agreements, being of such
paramount importance, should, therefore, be interpreted Iiberally,
in the spirit of the whole agreement."
They proceeded:
"This mode of interpretation has already been accepted by the
Court in interpreting Article 6 of the Mandate. [The reference is to
the 1950 Opinion.] In the Advisory Opinion the Court concluded that
Respondent is required to submit to the supervision of the General
Assembly of the United Nations and render annual reports thereto.
In reaching its conclusion, the Court interpreted Article 6 of the
Mandate so as to accomplish its purposes. The Court thus established
the effectiveness of one of the implements for the enforcement of
this 'sacred trust of civilization'."
That is very convenient and very broad language, Mr. President, glossing
over a host of difficulties.It says that merely by a process of interpreta
tion-not saying how exactly it worked, how the conclusion was justi
fied-by a process of broad, liberal interpretation of this initial instru
ment, of this initial obligation on the part of the mandatory power,
provision was made for an automatic succession which then resulted in
the obligation eventually being an obligation to report and account to
United Nations organs.
There are further passages in the Observations which make this clear.
At page 430 of the Observations (1) there is a reference to the Court's
finding that Respondent has the duty to report and account to the
United Nations, and 1quote what the Applicants there said aboutit:
"... when it did so [that is, the Court], it did no more than appty
the principle of giving effect to a basic international instrument
which bas as its purpose more than mere contractual relations
between two entities, but which creates an international institution
-a sacred trust. The Court employed the same type of legal rea
soning that a municipal court would employ if it were faced by the
contention of a trustee or tuteur that his duty to account bad
'lapsed'."
Mr. President, 1 emphasize that if one reads the whole of the argument
as then presented, the whole purpose was clearly to avoid the necessity
of facingup to the proposition of establishing an agreement in 1945 or in
1946 in order to bind the Respondent to United Nations supervision.
That was the wholc purpose of this type of reasoning; everything is to
come under the interpretation to be put upon the initial instrument, and
no reliance whatsoever need then be placed on the events of 1945 and ARGUMENT OF MR. DE VILLIERS 293
1946 as creating a new obligation. This becomes clearer as we go along.
The Applicants interpreted the Court's Opinion of 1950, the majority
opinion, relative to the events of 1945 and 1946, as being merely confirma
tory of the interpretation which it gave to the basic instrument. We fi.nd
this in the following passages of the Observations (1), page 430: .
"The Court furthermore found, for purposes of confirmation,
that the League of Nations relied on declarations of Manda tories,
including Respondent, that they would continue to honour their
obligations as mandatories; and that neither the League nor the
United Nations intended the obligations of mandatories to disappear
without their being replaced by new obligations under trusteeship
agreements.''
This argument about a succession or a devolution relative to the power
of the Organization to supervise mandates under Article 6, was then
transferred in the Observations to an argument relative ta Article 7,
the compromissory clause, suggesting then also that the competence of
League of Nations Members to invoke the jurisdiction of this Court passed
to the United Nations Members and became vested in them. We find in
the Observations (1) at pages 442 to 443 this passage:
"The Mandate is a creature of the organized international com
munity, as well as the subject of a legal interest of such community
·and its Members. Its existence today rests upon the continued
vitality of the authority conferred upon Respondent by the or
ganized international community and by the continued vitality of
the rights of such community and its Members to ensure that the
Mandate is properly administered. The only question is, which
representative of the organized international community does one
look to, the League ofNations orthe United Nations, the organ in exi
stence when the Mandate was conferred or the organ nowinexistence?
The Majority Opinion [in 1950] applied the doctrine of succession
and looked to the United Nations. Judges McNair and Read declined
to apply the doctrine and looked to the League."
Later in the Observations, at page 445, we :findmuch to the same effect
the following: ·
"The Court [in 1950], in determining that the International Court
of Justice has replaced the Permanent Court and that the United
Nations has replaced the League of Nations for purposes of the
Mandate, similarly applied the principle of succession, explicit in
one case and implicit in the other, in order to give effect to the
purposes of the Mandate."
So, Mr. President, it becomes perfectly clear from this analysis of the
Observations-and 1 shall pass on from here to the oral argument in the
1962 proceedings just to determine the analysis of the Observations in
this respect-that the Applicants, although not very clearly saying where
they found their legal basis for this succession or devolution, make it
perfectly clear that they had something in mind which operated inde
pendently, automatically; there was no need for a new consent in 1945 or
1946, no need on the Applicants' part to establish a new agreement; it
was something which could be said to have resulted automatically from
what was agreed to-from what went into the initial instrument in 1920.
1 may point out also that in this part of its case, in the Observations,294 SOUTH WEST AFRICA
the Applicants stated that in support of its reasoning the Court in rgso
referred to the purpose of Article So, paragraph r, of the Charter-thatis
in the Observations (1), pages 444-445. I do not intend tore fer now to the
arguments concerning Article So, paragraph r; 1am merely pointing out
in passing that that was referred to by the Applicants in their Observa
tions, and relied upon by them as being a factor which influenced the
Court in rgso.
Now, Mr. President, looking at the Oral Proceedings on the Preliminary
Objections, there we find the significant attitude on the Applicants' part
in keeping with what 1 have just been trying to explain to the Court.
We presented our argument first, as the Court will recall, and we pre
sented full reasoning regarding Article 6 and-for the reasons which we
then indicated-why we considered that that might be relevant for the
purposes of deciding on the Preliminary Objections. We also repeated
our contention about the manner in which the Court's Opinion of 1950
was to be interpreted, and of the important bearing which the new facts
could have had on the conclusion at which the Court had then arrived.
One will find that argument in the Oral Proceedings on the Preliminary
Objections (VII) at pages gr and following. In the course of this argu
ment we also dealt, Mr. President, with the apparent significance which
the Court attached-the majority of the Court attached-in rgso to
Article So, paragraph r, of the Charter. We stated that in our submission
the Court was not seeking in rgso to apply the content of that Article
to the problem before it-that the Court was seeing behind the Article a
presupposition, a probability, a certain contemplation on the part of the
authors of the Charter, and that it saw in that a factor which tended as a
matter of probability towards establishing this tacit agreement which the
Court found to be established; that was our interpretation, as we putit, on
the Court's reference in rgso to Article So, paragraph r, of the Charter.
. Now came the Applicants' reply in their Oral Proceedings. They started
off by referring to the fact that the Court in rgso relied on the "inter
national rules regulating the Mandate", which "constituted an inter
national status for the Territory"-those words were used in the Oral
Proceedings (VII) at page 302 by the Applicants' learned Agent.
They then contended, Mr. President, that Respondent's subjection to
the supervision of the Council of the League was "what the Court took
as showing the essentially international character of the Mandate
institution" (Vll, p. 302). And they proceeded to say (at p. 303):
"Going on from its finding that the international rules regarding
both substantive rights and accountability, and again 1 quote,
'constituted an international status for the Territory', the Court
said (at page 133 [of the Opinion]) and, I think, reached an inescapa
ble conclusion by saying so, with respect:
'If the Mandate lapsed, as the Union Govemment contends, the
latter's authority would equally have lapsed'."
The Court will notice: stillar~mentat tootne effect that this result
contended for relative to Article 6 was something to be found in the
international rules regarding this basic institution.
The argument proceeded. It rcferred to the Court's statement that
"to retain the rights derived from the Mandate and to deny its obligations
would not be justified", and the Applicants then contended that the
Court in its Opinion- ARGUMENT OF MR. DE VILLIERS 295
"laid down as the law of the case that the machinery for implementa
tion [that is, supervision], together with the substantive rights and
obligations, survived the dissolution of the League".(VII,p. 303.)
Mr. President, this is the important point, that nowhere in the Oral
Proceeclings on the Preliminary Objections clid Applicants attempt to
justify the Court's finding, as interpreted by them, which according to
their written Observations was based upon a so-called "doctrine" or
"principle" of succession. The Applicants advanced no independent
argument of their own in support of this so-called doctrine. They simply
relied on the finding of the Court-the Opinion of the Court-which
they interpreted as involving such a principle or doctrine, and they
quite frankly, although rather surprisingly, in their Reply, stated as
follows during the Oral Proceedings :
"But, Mr. President, it is not the Applicants who 'rely on' United
Nations succession. The Court itself decided that issue in the Ad
'visory Opinion of 1950. We draw the necessary inference from the
Court's Opinion. We do not bear the burden of sustaining the valid
ity of the Opinion of the International Court of Justice." (VU,
p. 319.)
There we have it, the whole argument and reliance upon the Court's
Opinion in 1950, the majority opinion, and an interpretation of that
Opinion as being ba.sed,not upon an agreement in 1945 or 1946, but upon
a special kind of interpretation of the basic international instrument.
Then, Mr. President, in addition to this argument regarding what they
cali the "law of the case" as laid down in the Court's Opinion, the Ap
plicants addressed a very lengthy argument to the Court regarding the
significance of Article 8o, paragraph r, of the Charter.
This argument was introduced with a survey of the history of Article
8o, paragraph r.
It might be advisable to revert again to the wording of that Article:
"Except as may be agreed upon in the individual trusteeshlp
agreements, made under Articles 77, 79 and Sr, placing each terri
tory under the trusteeship system, and until such agreements have
been concluded, nothing in this Chapter shall be construed in or of
itselfto alter in any manner the rights whatsoever of any States or
any peoples or the terms of existing international instruments to
which Members of the United Nations may respectively be parties."
The gist of the article is that "nothing in thls Chapter shall be construed
in or of itself to alter in any manner the rights whatsoever of any States
or any peoples ... ".
It is quite clear, Mr. President, that thawas merely a savings clause,
a clause aimed at assisting in the interpretation of a particular ~hapt~r
of the Charter. Now, how did the Applicants rely on that clause m the1r
argument in the Oral Proceedings in 1950? They dealt with the history
of the article at length in their argument at pages 269-270 of the Oral
Proceedings (VII), and they placed this interpretation on the Cou~'s
use of that article-on the way in which the Court utilized the arhcle
in its rgso Opinion:
"The significance of the Court's reference to Article 8o, paragraph r,
of the Charter clearly appears from the stress of phrases used by the
Court, such as: 'under ali circumstances' and 'inall respects', phrases296 SOUTH WEST AFRICA
characterizing the Article's pervasive intention to safeguard the
rights, alithe rights, of the inhabitants of Mandated territories."
(VII,p. 304-)
In other words, there is ascribed to the Court an interpretation and ap
plication of this Article, giving toit a positive significance, not a negative
significance of preventing a certain type of interpretation of the Charter,
but a positive significance and effect of maintaining and safeguarding
rights. The argument proceeded at page 305 of the Oral Proceedings
(VII):
"The Court's emphasis conceming Article 8o, paragraph 1, its
scope and force and meaning, is reinforced by the Court's subsequent
references in the Opinion to that paragraph of Article 8o, particu
larly in the light of the context in which the subsequent references
appear."
The Applicants then dealt in detail with every reference which the
Court made in the 1950 Opinion to Article 8o, paragraph 1, and inter
preted the Opinion as having attached the following weight to that
paragraph:
"The Court obviously is thereby construing Article 8o (1) in a
sense which safeguards, for the people of Mandated territories, the
right to have the protection of international judicial supervision ...
the Court thereby attributes to Article 8o {1) the positive quality
of 'maintaining' the right of the inhabitants to petition to an inter
national agency ...
These four successive references to Article 8o (1), each in a dif
ferent though related context, and each based on the same inter
pretation of the clause, have accumulative significance in our judg
ment. They demonstrate, it seems tous, that the Court was defining
Article 8o (r) so asto give a full scope and an enduring vitality to
the 'international functions' which bad been entrusted to the Re
spondent, to the 'new international institution' which bad been
created by Article 22 of the Covenant and the Mandate and to the
'international status for the terri tory', which bad been created by
the 'international rules regulating the Mandate'." (VII, p. 307.)
Again, Mr. President, this whole argument regarding Article 8o, para
graph r, is brought into line with what I suggested before was the Ap
plicants' sole argument-that argument being to interpret the 1950
Opinion as resting purely upon an interpretation of the original instru
ment and its application to the circumstances of change which came
about in 1945 and 1946, without any necessity to find any fresh consent
or any fresh agreement during that period of transition.
Now, Mr. President, we come to the Judgment on the Preiiminary
Objections and the various separate opinions and the further proceedings.
I do not wish to deal in any detail at this stage with the 1962 Judgment,
or with the separate opinions on the Preliminary Objections, but 1merely
want to point out this, Mr. President, that it seems fairly evident that
not a single Member of this Court was in 1962 prepared to accept the
Applicants' contention regarding a transfer or succession of rights
rights passing from the League organization to the United Nations
Organization, and consequently from League Members to United Nations
Members. That was the one basis, the Court will recall, and the main ARGUMENT OF MR. DE VILLIERS 297
basis-the fust one relied upon by the Applicants-why they contended
that Article 7 of the Mandate was still in force. They contended that
"Members of the League", the expression used in Article J, now had to
be read as being "Members of the United Nations", because of this
principle of succession-this automatic succession which had operated.
But, although the majority of the Court-eight Members of the Court
rejected our contentions in regard to the Preliminary Objections, rejected
our Preliminary Objections, and found that there was competence on the
part of the Applicant States to institute the proceedings notwithstanding
the dissolution of the League, not a single Member of the Court founded
their judgment or their opinion on the basis of this succession argument.
The basis was the alternative propounded by the Applicants at the time,
namely that the competence remained vested, despite dissolution of the
League, in the States that were Members of the League at the time of
dissolution. No finding was therefore made on the basis of this suggested
succession· or devolution, by the Members of the Court who found in
favour of the Applicants.
This matter is dealt with, Mr. President, in our Counter-Memorial,
Book II (II), pages rsz-163.
Further, Mr. President, we point out that not one of the honourable
judges in 1962 placed any reliance for the purposes of their opinions
and judgment on the provisions of Article So of the Charter of the United
Nations. In fact, Mr. President, Judge Basdevant in his separate opinion
mentioned "the silence preserved in the reasoning of the Judgment with
regard to the Applicants' reference to Article So, paragraph r, of the
Charter". (I.C.J. Reports I962, p. 459.) ·
We dealt with this matter also in our Counter-Memorial, Book II
(Il), at page rz8.
That is the only comment which I wish to make for the moment on
the 1962 Judgment and opinions in this respect.
Then, Mr. President, in order of sequence came our Counter-Memorial
in which we again set out our argument regarding Article 6--the ar
gument basically the same as propounded before, basically the same as
we are putting to the Court now. And we pointed out further this con
sequence in so far asthe reaction of the judges in the rg6z decisions were
concerned, regarding this contention of succession advanced by the
Applicants.
And the Applicants deal with this new situation in their Reply-the
Reply to the Counter-Memorial; there, we find, Mr. President, that they
no longer used these expressions "automatic succession", "doctrine of
succession", or "princip le of succession", as they did in their earlier
pleadings. That is not surprising, in the light of the purport of the Court's
Judgment and opinions to which 1 have just referred. I may add that
we also pointed out in regard to the Judgment and opinions in 1962 that
certain Members of the Court positively found that there was no justifi
cation whatsoever for this contention relative to automatic succession
or any devolution of powers from the League to the United Nations.
Certain Members of the Court positively found it, and the other Members
remained silent; not a single Member found in favour of it. This is the
situation now which we find has to be dealt with in the further pleadings
presented to the Court. And now we find that the Applicants do not use
those expressions of "automatic succession", or "doctrine of succession",
or "principle of succession", any more, as they did before. They now298 SOUTH WEST AFRICA
put the matter in a somewhat different way. They say in their Reply
that Respondent's obligation to report and account in terms of Article 6
was owed to the organized international community. From that point of
view they argue further that during the existence of the League, the
League was the organized international community, or was to be regarded
as the representative of the organized international community, and
that it was in that capacity that the League, and the League organs,
performed supervisory functions with respect to mandates.
The argument is then rounded off by the contention which I quote
from page 539 of the Reply (IV):
"The United Nations has replaced the League of Nations as such
'organized international community,' and Respondent's obligation
of international accountability, accordingly, is owed to the United
Nations in that capacity."
Mr. President, we then in our Rejoinder dealt with this argument.
We dealt with it by indicating in the first place that, on analysis, the
ApJ?Iicants' case as it was now presented in the Reply in effect rested on
an Implication that had to be read into the mandate instruments. That
one finds in the Rejoinder, (V), pages 41-42. Our contention was that
the express language of the mandate instruments talks about "specifie
supervisory organs". Here we are told that another effect is to be given
to those provisions; they are to be read as if they referred not to those
specifie organs but as if they referred to organsin a certain capacity, as
representing an organized international community-something of
course which the article does not say-something which its language is
not capable of meaning-and therefore it has to rest on an implication
to be read into that Article.
We pointed' out further, 1\fr. President, that as a matter of interpreta
tion, having regard to ali the surrounding circumstances, and as a matter
of implication, the mandate instruments were not capable of any such
construction; that there was no justification for interpreting the mandate
instrument to that effect, nor for implying such a provision in the man
date instrument. In passing, I would point out that, althou?"h the name
"au toma tic succession", or "doctrine of succession", or ' princip le of
succession", was no longer applied to this argument, on analysis it really
amounted to the same approach as before, in the particular sense that
it was still an attempt at avoiding the challenge of establishing an agree
ment in the years 1945 and 1946. Again the approach was to find some
thing in the original agreement-the original instrument as determined
in 1920-which would of itself automatically cope with the situation
which arose in 1945 and 1946. This is still the essence of the argument
which we find in the Reply.
We pointed out, Mr. President, that that construction was not justified
eitheras a matter of interpretation or as a matter of implication of any
provisions not expressed in the terms of the original instrument. In ad
dition, Mr. President, wc pointed out that even if, as we disputed, the
Applicants were correct in saying that the authors of the mandate in
tended to create an obligation of international accountability, or one
to submit to international supervision, as distinct from submitting to the
supervision of particular organs-even if they were correct in s~y~ng
that the League organs were specified merely as the means for g1vmg
effect to such obligation-then that premise would still not lead them ARGUMENT OF MR. DE VILLIERS 299
to their desired conclusion of arriving at the substitution of supervisory
organs in 1945 and 1946 without new agreement.
\Ve contended that even on that premise which the Applicants put
for themselves, the result in 1945 and 1946 would have been that with
the dissolution of the League, the supervisory organs indicated for
giving effect to the general obligation, would have fallen away. The
obligation might possibly have survived on that premise. I do not con
cede that it did because 1 submit the premise is wrong. But I say follow
ing on that premise the obligation to submit to international supervision,
or international accountability, might have survived, but then it would
have become dormant in the absence of a new agreement for a substitu
tion of a particular new supervisory organ.
In support of this contention we referred to the recent decision of
this Court in the Barcelona Traction case. \Ve did so in our Rejoinder,
(V), at pages 42-43.
We pointed out also in our Rejoinder, Mr. President, that the Appli
cants did not in their Reply contend that the events of 1945-1946 created
any new basis for the succession or substitution of supervisory organsin
respect of mandates.
In their Reply they merely relied on such events as:
"... manifest[ing] the clear intention of ali concerned to preserve
and assure proper discharge by the organized international com
munity with respect to its rcsponsibilities toward the inhabitants
of mandated territories". (IV, p. 539.)
They referred then to the events of 1945-1946 not as constituting a new
agreement, but as being consistent with and confirmatory of this inter
pretation sought to be placed upon the initial mandate instrument. We
deal with this point in the Rejoinder, (V}, pp. 53-54.
We also pointed out that in the Reply the Applicants did not refer at
ail to Article 8o, paragraph 1, of the Charter. (Rejoinder, (V), p. 35,
footnote s.)
That is how the matter then stood at the end of the written pleading.
\Ve found ali along different names givcn to a concept and ali along the
attempt is to find something automa tic in the original arrangement which
would avoid the necessity for the Applicants to establish a new consent
or a new agreement in 1945-1946.
How do we stand now, Mr. President, on the presentation of the Ap
plicants' case regarding Article 6 in the Oral Proceedings-in the argu
ment to which we listened last week and the week before.
Again, 1 am afraid, we have not complete clarity and precision in the
formulation. On the one hand we are told, as 1 have pointed out before,
that Applicants do not seek to show a general principle of international
law as goveming the mandate, other than general and applicable prin
ciples of treaty interpretation. That we find in the verbatim record at
page 126, supra.·
That looks quite promising because now it seems we have a straight
forward case of interpreting what the basic instruments say, and possibly
seeing whether there was any fresh agreement which could be regarded
as an amendment of the original agreements in so far as that might be
necessary.
Unfortunately, Mr. President, we fi.nd later on other elements which
disturb this apparent clarity. First of all, we fi.ndaffirmation of the fact300 SOUTH WEST AFRICA
that no general principle of international law is relied upon in the ver
batim record at page 132, supra. There my learned friend stated:
"With re<>pectto the international rules regulating the Mandate,
the Applicants have never conceived, nor do they do so now, that
the United Nations acquired title to the League's supervisory power
over Mandates by virtueof sorne general international legal principle
of devolution or succession, aliunde the Mandate."
Again they made it clear that there was no reliance on something
outside the Mandate itself. The Applicants then expressed regret for
having used the expression "automatic succession" in their written
observations on the preliminary objections, in which, as we have already
indicated, they also used the expressions "doctrine of succession" and
"principle of succession".
As 1 have made clear, that does explain away any suggestion that they
might have intended to rely on something outside of the Mandate. It does
not explain away the fact, Mr. President, that they did, on the basis of
interpretation of the Mandate, rely on a principle of succession which was
to operate automatically: something coming out of the Mandate and
having that effect.
Now, Mr. President, another respect in which they have now sought to
eliminate misunderstanding asto the case which they make, relates to the
relevance and significance of Article 8o, paragraph r, of the Charter.
The Applicants now express regret for the "incompleteness of presenta
tion of this question during the preliminary objections phase of these
cases" (p. 223, supra). It is a rather strange reference to the incomplete
ness of presentation during the Oral Proceedings, because I ~houl hadve
thought that nothing could have been more complete than their repeated
reference in those proceedings to the significance of Article 8o, paragraph
r-the significance which, in the Applicants' submission, was attached
to it by the Court. But the Applicants now say they did not intend to
intimate a view inconsistent with that which was expressed by the
honourable President and Sir Gerald Fitzmaurice in their joint dissenting
opinion when they said that "the sole purpose of the Article was to
prevent any provision of Chapter XII of the Charter being construed so
as to alter existing rights prior to a certain event". In other words, the
Applicants indicate that with that view of the interpretation of the
Article, they are in agreement and they do not advance any contention
putting the matter higher than that (p. 223, supra).
The Applicants then say further on the same page:
"Without venturing to interpret the meaning intended to be
attributed to the Article in the Advisory Opinion of rgso. the
Applicants respectfully submit that the inclusion of Article 8o,
paragraph r, in the Charter serves to confirm the understanding of
the authors of the Charter that certain rights, including those under
mandates, did continue to exist, notwithstanding the dissolution
ofthe League. The Article, in the Applicants' view, did not cstab
lish, constitute ormaintain these or any other rights." (P. 223,
supra.)
In other words, they do not rely on any positive effect on the part of
Article 8o, paragraph r-the type of submission which they made to the
Court in rg62 during the Oral Proceedings. ARGUMENT OF MR, DE VILLIERS JOI
[Public hearing of JI March rg65]
:Mr. President and honourable Members, before I take the argument
further from where we left off yesterday, may I be allowed to gather the
thread somewhat asto what it is ali about, otherwise you may lose me
or I may lose myself. I was dealing yesterday aftemoon with the rival
contentions of the Parties regarding the continued existence or otherwise
of the obligation of accountability under Article 6 of the Mandate. I
referred in broad outline to what the attitude of the Respondent is in
that regard-what it has always been throughout these proceedings.
Summarizing, in the end it amounts to this, that the Respondent says
it was an obligation from the start to submit to the supervision of a
specifie supervising authority and no other. Respondent says further
that when that supervising authority disappeared it was consequently
necessary to enter into a new agreement-ta have new consent on the
part of the Respondent-in order to convert that obligation into a new
obligation to account to a new supervising authority.
Respondent says further that such an agreement was never entered
into,that such consent was never given by the Respondent.
1 then dealt with the Applicants' case in the way in which it has
emerged through the earlier stages of these proceedings until today. 1
indicated that initially the Applicants relied absolutely on the 1950
Advisory Opinion of this Court-the majority opinion of r2 to 2 relative
to this question. The Applicants offered no argument in support of the
Opinion or independent arguments supporting the conclusion arrh·ed at.
That was in the fi.rststages of the proceedings.
Then came the Preliminary Objections in which we offered our argu
ment, and on the basis of that argument we dealt with the 1950 Opinion.
We placed an interpretation upon it to the effect that that Opinion was
based on a tacit agreement arrived at in the years 1945-1946, and we
placed further information before the Court which it did not have in 1950.
This indicated, in our submission, that that conclusion could not stand
because the information was directly relevant to the question of intentions
during the years 1945-1946.
The Applicants had to react thereto, which they did in their Observa
tions and in their oral argument on the Preliminary Objections. At that
stage the attitude indicated by them was this. They placed an inter
pretation on the Opinion and they still rested purely on the Opinion, but
on the basis of the interpretation placed by them on that Opinion. They
indicated that the Opinion rested not, as wc said, on a finding of a tacit
agreement during the years 1945-1946, but on sorne construction to be
placed on the original mandate instrument, or an implication to be read
into it, to the effect that there would' be provision automatically for
succession relative to a supervisory authority in the event of dissolution
of the League. That was the nature of the theory of succession, or
doctrine of succession, relied upon by the Applicants in the Preliminary
Objections proceedings, and they contended that that was the way in
which the Opinion of 1950 had to be interpreted, so that there was no
need at all for an agreement during the years 1945-1946. The transition
-the succession-was provided for in something which had to be found
in the original instrument itself. \Vhat happened in 1945-1946 was merely
to be looked at as confi.rmatory-as being consistent with that inter
pretation placed upon the initial instrument.302 SOUTH WEST AFRrCA
On that basis, then, the Applicants attemptcd to exclude the relevance
or signifi.cance of the furthcr facts placed before the Court, which they
call the new facts.
The Applicants further contended, Mr. President, that the Court in
1950 placed particular reliance on Article 8o, paragraph 1, of the Charter
of the United Nations. They contcnded, on the basis of the language used
by the Court, that the Court gave to that Article a positive meaning and
significance, viz. as having the effect of maintaining rights and obligations
in respect of mandates even after the dissolution of the League. And they
indicated that that was a very important part of the reasoning of the
Court, leading it to its conclusion of a succession both in regard to the
issues on Article 6 of the Mandate, pertaining to administrative super
vision, and on the issues which were then before the Court relative to
Article 7 of the Mandate, on the question of compulsory jurisdiction or
the competence of another State to bring an·action under the Mandate
before this Court.
l was dealing at the adjournment yesterday with the attitude now
taken by the Applicants after further development through the pleading
stages-the attitude now taken by the Applicants on these various
matters-and I was dealing in particular with their present attitude
regarding Article 8o, paragraph r, of the Charter. That is where I wish
to resume now.
I read to the Court immediately before the adjoununent a passage
from the oral argument now presented by my learned friend which
concluded that the Article, in Applicants' view, did not establish, con
stitute or maintain these or any other rights.
Mr. President, there is a further passage which explicitly shows the
Applicants' present attitude in that regard. It is to be found in the ver
batim record at page 227, supra. It may be repeated, Mr. President, with
respect, that the Applicants do not contend that any positive legal
consequence was brought about by Article 8o, paragraph r. The language
of the Court quoted from the 1950 Opinion might, with respect, imply a
different view. In the Applicants' view, the Article simply confirmed the
understanding of the authors of the Charter that there were rights. These
rights included those under mandate. Those rights continued, despite the
dissolution of the League, until other arrangements would be agreed to
with the United Nations, and the Article being a savings clause it was
intended to make clear that none of those rights could be amended,
superseded or erased by a possible misconstruction of Chapter XII of the
Charter.
Mr. -President, we submit that this is a very significant change of
attitude on the part of the Applicants. It is signifi.cant and strange,
particularly when regard is had to their previous attitude in the proceed
ings on the Preliminary Objections to which I have referred: the absolute
reliance which they placed on the rgso Opinion, the fact that they asked
this Court without more ado to reaffirm that Opinion, and theircontention
that the Court placed such particular significance in its reasoning on this
Article in order to come to its conclusion about continued existence of
the obligation of accountability and to link it to United Nations super
vision.
In their Memorials, for instance, Mr. President, if I may recall, the
Applicants said this in regard to Article 8o-that is on the question of
jurisdiction under Article 7 (as I have said, the attitude on the two ARGUMENT OF MR. DE VILLIERS 303
questions of Article 7 and Article 6 at the Preliminary Objections stage
went hand in hand) :
"The Applicant founds the jurisdiction of the Court on Article 7
of the Mandate and Article 37 of the Statute of the International
Court of Justice, having regard to Article 8o, paragraph r, of the
United Nations Charter." (Memorials, 1, p. 88.)
The Applicants quoted the text of the Article in the Memorials. They
cited from the 1950 Opinion on the question of Article 7 of the Mandate,
where the Court in the majority opinion also referred to Article 8o,
paragraph r, and they asked the Court to reaffirm its ruling in regard to
Article 7, including this reference to Article 8o, paragraphr.
In the Memorials (1) at page Sg the words they used were that they
asked the Court to "reaffirm its aforesaid ruling and ... hold that the
said ruling sets forth the law of this case". The Court in that ruling had
said:
"Having regard to Article 37 of the Statute of the International
Court of Justice, and Article So, paragraph r, of the Charter, the
Court is of opinion that this clause in the Mandate is still in force."
(l.C.J. Reports r950, p.138.)
The general attitude of the Applicants, as they stated it in the Oral
Proceedings, is very weil and concisely summarized in the following
passage in the Oral Proceedings (VII) of 1962 at page 321.
[This is my learned friend, Mr. Gross, speaking.]
"As I have pointed out, the Court, in its Opinion, has three times
prior to this point cited Article So, paragraph r, as having been
designed to conserve ail rights of peoples of Mandated territories to
in~ematio snparvision and judicial protection."
I repeat, Mr. President, "as having been designed to conserve all rights
of peoples of Mandated territories to international supervision and
judicial protection".
Mr. President, we indicated yesterday inthe quotations 1 gave to the
Court that the Applicants dealt at length in those proceedings with
Article So. They stressed the positive quality of maintaining rights,
which the Court assigned to the Article. They spoke of the significance
of the Court's reliance on the Article; of the emphasis put on it by the
Court; of the accumulative significance which the Court's repeated
references to the Article bore-those references I gave the Court yester
day. Consequently, they played up the Court's reliance on this Article
very highly-if 1 may put it that way. They attached a particular
significance to that as an essential, or a highly important part, of the
Court's ruling regarding both Articles 6 and 7-that ruling which they
were asking the Court to reaffirmas the law of the case.
Now we find, Mr. President, we are told, firstly, that there was in
completeness of presentation of this question in rg6z. Secondly, we are
told that the Article has a very limited significance, to the effect that 1
have just read to the Court. Thirdly, we are told that the Court in rgso
apparently attached a higher value to the Article than the Applicants
do now. Yet, Mr. President, they still ask the Court to reaffirm that
Opinion of 1950 as the law of the case, despite the fact that this crucial
role which they assigned to Article So, in the reasoning of the Court, is no
longer supported by them. SOUTH WEST AFRICA
The question arises-"Why this change of attitude?" Our submission
is that quite clearly it cornes from thls: the Applicants saw, as far as
Article So, paragraph r, wa.sconcemed, a "writing on the wall" when the
Judgment and the opinions on the Preliminary Objections were given in
x9fl2 T.heysaw, quite clearly, that nowhere in the majority opinions was
any reliance placed at all-neither in the Judgment nor in the majority
opinions-upon Article So, paragraph r; and that in the minority
opinions-in passages containing, with respect, very cogent reasoning
it was indicated why no reliance in this regard could be placed upon
Article 8o, paragraph r. Therefore, the Applica.nts had to find sorne way
of getting away from this strong reliance which they had placed, through
their interpretation of the Court's Opinion of 1950, on the effect of
Article 8o, paragraph r, in this whole matter. They were faced with this
dilemma: they either had to admit that their interpretation of the Court's
Opinion in 1950 on this point was wrong, or they had to contend that the
Court's reasoningon this pointwas wrongin rgso. They chose, apparently,
the latter. They did not admit that their interpretation of the Court's
Opinion was wrong. They suggested rather that there was incompleteness
of presentation, on their part, on this question in rg62. They ended up
by indicating that the language of the Court might, with respect, imply a
different view.
In other words, Mr. President, they did not walk away from the
Opinion; they crawled away from it. This is perhaps to be nnderstood
in view of the fact that they are still asking this Court to reaffinn that
Opinion.
1 shall deallater with the merits of the Applicants' present contention
regarding Article So, paragraph r, and 1 shall submit to the Court that
they stiJl assign to it a meaning, or a value, which it cannot have-a
meaning, or a value, regarding possible preservation of rights, or contin
ued existence of rights, subsequent to the dissolution of the League.
That is a question of merit-1 shaH come to that later.
At the moment 1 am merely concerned with indicating how the Appli
cants' case in this regard bas changed, and the significance of the changed
position in so far as the Applicants' reliance on the majority opinion of
rgso is concerned.
1 revert now to the question of the substantive gronnds, now indicated
by the Applicants, for contending that Article 6 is stîll in force and that
the obligation of accountability is now owed to United Nations organs.
The Applicants' contentions, Mr. President, are in my submission,
stiJl not clear, despite alihat they have said in these Oral Proceedings.
This is due mainly to the fact that, although the Applicants say that they
rely on "general and applicable principles of treaty interpretation"-we
find that in the verbatim record at page rz6, supra-they stiJl import into
the argument matters which, strictly speaking, or shall 1say, on the face
of it, seem to fall outside the sphere of treaty interpretation, as if some
thing from outside the Covenant of the League and from outside the
mandate instruments themselves were being imported into the matter.
They use expressions such as "international regulations [particular to
and] governing the mandate institutions". That we find in the verbatim
record at page 127, supra. They speak of "mandate law"-that is in the
verbatim record at page r8o, supra. They speak of "law of the mandates
system" and "principles of objective mandate law"-that is in the
verbatim record at page 207, supra. \Ve fmd that my learned friend ARGUMENT OF MR. DE VILLIERS 305
speaks of the Mandate as a "novel ... institution, endowed with essential
attributes"-that is in the verbatim record at page 125, supra. He
speaks of its "novel character as a new international institution"-that
is in the verbatim record, at page r26, supra. He says "that the Mandate,
although an agreement, also is an institution, which created and intro
duced new international regulations particular to itself"-that is in the
verbatim record at page 126, supra-and he quotes the phrase "the
international rules regulating the Mandate"-that is in the verbatim
record at page 126, supra, and is a quote from the Court's Opinion of 1950.
l\Ir. President, ali this, in my submission, is quite unobjectionable,
provided we bear in mind that these mandate rules-these mandate
regulations-did not come into existence mysteriously from nowhere, or
at any rate from sorne source outside the Covenant or the mandate
instruments. As long as we keep in mind that the only place where they
are to be found, and where their extent and their meaning can be ascer
tained, is in the Covenant and in the mandate instruments made in
pursuance of the Covenant, then there can be no objection to language
of this kind.
Mr. President, that indeed is made very clear as being what this Court
contemplated in 1950 when it used sorne of those expressions. If we
refer to the 1950 Opinion at page 141 we find this passage:
"The international status of the Territory results from the
international rules regulating the rights, powers and obligations
relating to the admirùstration of the Territory and the supervision
of that administration, as embodied in Article 22 of the Covenant
and in the Mandate." (I.C.J. Reports I950, p. 141.)
l\lr. President, it stands to reason that this must be so. I know of no
mvsterious source of law outside the mandate instruments which could
have brought into ex_istencemandate regulations as a special status, as a
special regime-with sorne special mystery attaching to it ail-mandate
regulations, which are not to be found in the instruments themselves
but somewhere else, and the place where they are to be found is nowhere
indicated by my learned friend.
If he indicates in his argument that he uses those expressions as
something coming from the instruments and as merely being a figurative
description of the provisions of those instruments and their le~a effect,
then 1 have no objection. It is not clear at ali from his exposition that
that is what he bas in mind. At times, his language, in my submission,
strongly suggests that he ascribes to such international regulations, or
international rules, an origin and a legal force operating outside these
instruments themselves.
I refer the Court, for instance, to the vetbatim record at page 127,
supra, where this passage occurs:
"Interpretation of Article 6 of the Mandate, as is true of ali its
other provisions, is to be based upon both the international regula
tions governing the Mandate institutions, in the words of the Court.
and the relevant principles of treaty interpretation,soundly applied
in the light of the international rules thus regulating the Mandate."
In that passage, Mr. President-let us pause there-it starts off, not on a
basis of saying: "Now, what are the provisions of the instruments and
what effect is to be given to them, how are they to be interpreted?"
It starts off with a reference to "the international regulations governing306 SOUTH WEST AFRICA
the mandate institution", and it says that interpretation of the Article
"is to be based upon" those regulations. 1should have said, Mr. President,
that when we interpret Article 6 of the Mandate, that is part of the
interpretation of the regulations: there is nothing that is to be based upon
these regulations; they are part and parcel of the same instrument. The
passage proceeds "interpretation ... [also] is to be based upon ...
relevant principles of treaty interpretation, sound!y applied in the light
of the international rules thus regulating the Mandate". In other words,
the ordinary rules of treaty interpretation are also to be applied with
sorne qualifi.cation-that qualification being the way in which they are
affectcd by international rules rcgulating the Mandate.
Clearer evidence is afforded in later passages. Wc find the following in
the verbatirn record at page r6g, supra:
"lndeed, the requirement of international supervision is not incon
sistent with a presurnptionthat an administering power will,and must,
endeavour in good faith to pr9mote the welfare of the inhabitants;
this would seern to be an axiomatic, primitive and basic requirement,
underlying aU international agreements, or any other agreements of
any character. The submission to international accountability is
based upon the premise that decisions affecting the destinies of
dependent peoples should not be unilateral and unsupervised,
however well-intended, or well-motivated, or ill-intended, or ill
motivated, such decisions, with respect to their destiny, progress,
and welfare, may be."
Mr. President, where does it start? Not with a provision of the Covenant
or of the mandate instrument, but with a presumption, obtained from
where we do not know-a presumption that an administering power will
do certain things; that it is axiomatic, primitive and basic that when
there is a govemrnent of a dependent people, or government in the in
terest of the people, in a trust capacity, there is to be international super
vision of sorne kind. This suggestion clearly is something coming from
outside those instruments, something of the nature of a presumption,
something appearing to be based on principles of law not to be fonnd in
the provisions of the instruments themselves. But 1 submit, l\fr. Pre!'i
dent, that no basis whatsoever bas been laid for thus approaching the
matter. Thete is, as far as I am aware, no legal principle-no principle
or international law generally recognized-applying to this particular
matter in this substantive way, as suggested by the Applicants-no
principle of that kind is to be found outside the relevant instrument at
ali.
ln the verbatim record, page 170. supra, we fi.nd this passage in the
argument of the Applicants:
" ... the unsupervised government or regulation of the territ ory, is,
as a matter of mandate law, mandate regulation, perse a violation
of the Mandate if, as wc assume and as the Court has twice helcl,
the Mandate continues in existence''.
Again it is a matter of mandate law, mandate regulation, and there is
no indication that that mandate law, mandate regulation, is to be tound
in the only way in which 1submit it can be found, namely by ascertaining
and interpreting the content of the relevant instrument.
Mr. President, the Applicants have at last, however, now taken note
of the ha<;irmnh~ntio onfthe Respondent in regard to Article 6, and ARGUMENT OF MR. DE VILLIERS
virtually for the first time we find an attempt on their part to meet our
argument on the crucial aspects of the general attitude which we take.
We welcome that. Previously it was almost agame of hide-and-seek to
see where our argument is met, where it is evaded, where there is an
attempt at side-stepping the whole issue. Now that an attempt is made
to meet the argument. in its crucial aspects, it gives us an opportunity
of discussing those crucial aspects further and of stressing their signifi
cance. in answer to the attempt which has been put up to meet those
arguments.
The Applicants begin by restating our contentions as they see them.
and they state them as involving "two major premises"-the expression
used by my learned friend in the verbatim record at pages I24-125,
snpra. And he proceeds to say, in the same record at page 131:
"Under Respondent's premise, that is, that of a limited original
obligation to report to a specifie supervisory organ, the disappearance
of such an organ without more would necessarily have ended the
obligation."
That is a correct restatement of that premise in our argument.
The Applicants then proceed to concede the tollowing, at the same
page of the record :
"It would legally foHow from such a premise that a wholly new
undertaking would have been neccssary to amend the original
agreement in a material and, indeed, essential respect. 1t likewise
would follow that an amendment of such a nature would have to be
established by evidence so unequivocally clear as to permit of no
other reasonable conclusion."
That again; Mr. President, is a very fair statement-restatement-of
the consequences that would flow from our basic argument as to the
interpretation to be put on the obligation as originally described.
But then the Applicants go further, and contend that Respondent's
propositions are "irrelevant because they proceed from a false premise
regarding the essential nature of the Mandate which is before the Court''
-1 quote from the same page of the record. The correct premise, ac
cording to the Applicants, is that the authors of the mandates system
intended to create, and did create, an obligation of "international ac
countability" as a "basic and integral featme of that system"-that we
find in the verbatim record at page rz6, supra. So here we have a meeting
of two basic contentions-a contention on our part that the obligation
related to specifie supervisory machinery, and a contention on the other
side to meet that, that the obligation related to "international account
ability" as a general concept, as a basic and integral feature of the man
dates system.
Now, i\ir. President, on the basi<>of their premise of "international
accountability", the Applicants then say the following-I read from the
verbatim record at page IJI, supra:
"[They] do not think it necessary to make extensive and detailed
argument to support the conclusion that the events and transactions
during the relevant period do indeed permit of no other conclusion
than that, had a wholly new agreement been necessary to amend the
Mandate in an essential respect at that time, such a new agreement
was, in fact, concluded among all the parties to those transactions
and events".J08 SOUTH WEST AFRICA
It is a long and somewhat involved sentence. but on analysis, Mr. Presi
dent, it seems tome to mean this: that the Applicants still do not accept
the challenge of establishing or contending that the facts of the period
1945 and 1946 establish unequivocally and clearly that "a wholly new
agreement", to use their phrase, was entered into relative to supervision
of a mandate administration. They do not think it necessary to enter
tain an enquiry of that kind, or to embark upon an argument of that
nature, because they su?mit that our. premise is wrong. In other \~'ards,
they seem ta rest essentJally on the difference between the basic conten
tions-the basic difference between a specifie supervisory authority, on
the one band, and a general obligation of international accountability,
on the other hand.
As we go along, however, we find that although they do not accept
that they have to establish-and apparently they do not attempt to
establish-a wholly new agreement in 1945 and 1946, they are prepared,
it would seem-I am not perfectly clear aboutit, because there are, again,
indications to the contrary-to accept that to a lesser extent. Flowing
from their premise, there arises a question whether a consent was given
to a substitution of supervisory organs, and they submit that such con
sent was in fact given in the period 1945-1946. But 1 shall come to that;
perhaps I should take their exposition in that regard step by stcp. Ac
cmding to the Applicants the obligation of accountability which they
say is an essential and an integral element of the Mandate "must survive
so long as the Mandate itself endures". That is a contention which they
make-we find it in the verbatim record at page 132, supra. I take it
that that is a conclusion at which they arrive-they do not attempt to
point at any language in the mandate instrument or in the (avenant
which puts the Mandatory's obligation in that form.
They then argue that upon acceptance of their premise of a general
obligation of international accountability, the only question for the
Court ta decide would then be "whether the function of supervision
passed to the nearest equivalent of the League, to wit, the United
Nations"-verbatim record, page 132. And they contend that if the
function of supervision did not pass to the United Na6ons, Article 6
would not have lapsed but, in their words-
"... would have become inoperative for Jack of a supervisory organ
with capacity to replace the League Council. In such a case, and
pending establishment of an international administrative organ,
ifany, the only continuing method for insuring international super
vision over the sacred trust would be that of judicial protection,
as a first and only recourse, rather than as the 'final bulwark' ."
(P. 132, supra.)
And it is upon this line of reasoning that the Applicants conclude as
follows. They say:
"The answer ta the question whether Articles 6 and 7, para
graph 1, of the Mandate became inoperable, or whether the United
Nations replaced the League as the supervisory organ, hinges upon
bath a legal analysis of the 'international rules' regulating the ?lian
date, and upon ascertainment of the intentions of the parties with
respect to the events and transactions which transpired during the
period when the League was dissolved and the United Nations began
operations." (Ibid.) ARGUME~T OF MR. DE VILLIERS
The two elements, then, are analysis of the international rules regulating
the Mandate and ascertainment of the intentions of the interested pat ties
during the period of transition. For the first time it seems now that this
element of the intentions of the intetested parties during that period of
transition is intioduced or acknowledged by the Applicants as being a
relevant and significant aspect of their case regarding Article 6.
How is all this to be understood, Mr. President? On analysis it seems
tous to mean the following. Firstly, that our premise is false regatding
its obligation under Article 6, namely that it was obliged to report and
account to a specifie supervisory authority. That is the first proposition
in the Applicants' case as presently advanced. This seems to be a neces
sary element in their case, becausc if Respondent's premise is held to be
correct, the Applicants apparently do not take up the challenge of
demonstrating that the events and transactions over the years 1945 and
thereafter establish an unequivocally clear, affirmative agreement to
accept the supervision of the new organ, that is the United Nations.
Secondly, on the basis that the Applicants' premise is correct, namely
that the obligation under Article 6 was one of international acconntabil
ity, they then say that the dissolution of the League could not put an
end to the obligation, but would merely have rendered it inoperative,
or dormant-they use the word "inoperative". That would be the posi
tion on their submission if the United Nations was not substituted as a
supervisory organ.
And then, theü third proposition is apparently that the events of the
period 1945 and 1946 and thereafter established that there was in fact
consent on Respondent's part that the United Nations would replace
the League as supervisory organ. In other words, they do not accept the
task of establishing a wholly new agreement, as they call it, but they do
accept the task of establishing a new agreement, a new consent, directed
at the more limited objective, as they put it, of getting a substitution
of a supervisory organ for the purpose of keeping in operation a general
obligation of international accountability which would otherwise be
come dormant.
Mr. President, WJfortunately this proposition, that consent on the
Respondent's part, even in this limited sphere, was necessary, and that
it was in fact given during the relevant period, is not put explicitly and
absolutely clearly in the Applicants' case, although it does appear on
analysis that it is implicit in their case as they now formula.te it.
They speak in this regard in the last passage which 1 quoted of "as
certaimnent of the intentions of the parties concemed during the period
of transition", and on analysis of their arguments one finds that they in
fact seek to find in such events and transactions consent on Respondent's
part to acceptance of the United Nations as the new supervisory organ.
Thus, after a lengthy review of the· events and transactions over the
years 1945 and thereafter, they seek to demonstrate manifestations of
consent on Respondent's part, and they say first that: ''Acceptance by
Respondent of this resolution [that is the last resolution of the League
Assembly] clearly involved an explicit undertaking of sorne sort."
(P. 212, supra.)
On the same page we find this: "Respondent's undertaking must and
can only be read as a clear commitment to submit to supervision by the
United Nations."
In the verbatim record at page 212 we find that Respondent "agreed310 SOUTH WEST AFRICA
to, or acquiesced in, an undertaking to carry on an obligation which
this honourable Court has defined as the very essence of the Mandate",
and on the same page: "The Mandatories, including Respondent, ac~
cepted the continuance of the existing regimes, including the substitu~
tion of the United Nations for the League as the supervisory organ."
These formulations then seek fairly clearly to attribute to the Respon
dent and, it scems, to the other .Mandatorics as weil, a consent to accept
the substitution of the United Nations for the League as supervisory
organ, so that this obligation of international accowltability under the
Mandate would not become dormant but would continue in operation
with this new substituted organ.
And it would secm hom this analysis which I have just given to the
Court that that consent on Respondent's part in the years 1945 to 1946
is now acceptcd by the Applicants as being a necessary element in their
case.
Through ail the phases through which this case ha.s gone, this is the
first time that we find that on the Applicants' part. Formerly the position
was, as we have said, that they relied on the 1950 Advisory Opinion
which they interpreted in such a way that our consent wa.snot necessary
-our consent during the years 1945 to 1946. They interpreted it, as 1
have pointed out, as resting on a doctrine of succession, or a principle
of succession, which was to be found in the original mandate instrument
and which then operated i11dependently of any furthcr consent; the
events in 1945 and 1946 merely being referred to for purposes of con
firmation. They did the same in the OraJ Proceedings, and the Court will
remember that in so far as this doctrine of succession was concerned,
when we challenged the Applicants on that, they eventually said that
they did not bear the burden of sustaining the vaJidity of the Opinion
of 1950.
The Applicants' Agent, my leamed friend ilfrGross, then said specifi
cally, and this was a very important aspect of the presentation of the
Applicants' case in 1962:
"... the fact is that ... none of the decisive reasons underlying
the Opinion of 1950 rests on a premise of 'tacit consent', whether
on the part of the Respondent, the League of Nations, or the United
Nations. The 'general considerations', as the Court itself describes
them in its Advisory Opinion at page 136, which in fact undeday
the Court's conclusion, proceeded from the very legal nature and
legal consequences of the .Mandate institution itself. These 'general
considerations' ... involved the most basic concepts of the authors
of the Covenant and the authors of the United Nations Charter."
(VII, p. zgg.)
Also, ~Ir President, in their Reply-the final pleading filed on behalf
of the Applicants-the Applicants still argued on the ba.sis of an "or
ganized international community" theot-y, the contention being:
"The United Nations has replaced the League of Nations as
such 'organized international community', and Respondent's
obligation of international accountability. accordingly, is owed to
the United Nations in that capacity." (IV, p. 539.)
That again, although it was not called a theory of succession or a prin
ciple of succession, involvedhe same thing. It involved that the instru
ments of 1920 were to be so interpreted, or there was to be read into ARGUMENT OF MR. DE VILLIERS 3II
them an implication, to the effect that the supervisory authority would
not be the League organs as such, but the League organs in a special
capacity as representing or being the organized international community.
The result was that there was an automatic succession of the supervisory
organ in 1945-1946, independently of consent, because the United
Nations was said to replace the League of Nations as the organized inter
national community.
And they then also referred to the events of 1945 and thereafter mere!y
as "manifest[ing] the clear intention of ali concerned to preserve and
assure proper discharge by the organized international community with
respect to its responsibilities towards the inhabitants of mandated
terri tories".
This, then, Mr. President, is in my submission the major point that
emerges from this review of the Applicants' attitude through these pro
ceedings, until we corne to the statement of their attitude today. They
now acknowledge the need for establishing consent on the Respondent's
part, and they contend that the events establish consent on Respondent's
part at this stage of transition. They still, in that respect, atternpt to
draw a distinguishing line between, on the one hand, establishing a
wholly new agreement and, on the other hand, establishing sornething
less-something rnerely involving a substitution of a supervisory organ.
Mr. President, in my submission, in principle there is no distinction.
If new consent-a new agreement-bas to be established, then a new
agreement has to be established. Whether it relates to proposition A or
proposition B does not matter, as a matter of legal approach. And all
the requirernents which are to be laid down for the establishment of a
consent by implication apply to the one as muchas it applies to the other,
but that is a matter which I shall develop at a later stage of the argument.
First, I would Iike to indicate to the Court the possible reason why it
seems to us the Applicants have now suddenly changed the basis of
their case regarding Article 6, because this may tluow sorne light on the
type of difficulty with which they are faced in their case in this regard.
1 must admit that what 1 am saying to sorne extent is speculation;
1can only draw inferences from what we have before us. They themselves
would best know why they have changed their case in this respect.
Mr. President, in our subrnission, the explanation lies in a combination
of certain factors. The first one ishat the Applicants, upon reading the
1962 Judgrnent of this Comt and the opinions of the individual honour
able judges concerned, found quite clearly that a principle or doctrine
of succession found no favour whatsoever with this Court in 1962. 1have
already pointed out that in regard to their case on jurisdiction the Ap
plicants' main line of argument was a doctrine of succession-a doctrine
of succession to the effect that the powers of the League organization,
as an organization regarding Mandates, were transferred to the United
Nations as an organization, and that hand in hand with that devolution
of powers there was also a transfer of the competence of League Members
to invoke the jurisdiction of the Court to United Nations Members.
That was the first of two alternative arguments upon which the Appli
cants sought to establish the jurisdiction of this Court, and although
the majority of the Court found in favour of the proposition that the
Court had jurisdiction, not a single judge based his opinion or judgment
on that contention.
On the contrary, not only did three judges in the minority indicate312 SOUTH WEST AFRICA
expressly that there was no justification for any doctrine of succession
of that nature either in relation to Article 6 or in relation to Article 7,
but there was also one of the judges in the majority- Judge Bustamante
-who expressly said that in his view the theory of succession could not
be established. We quote a relevant passage in the Cowlter-Memorial,
II, at page 153. Judge Bustamante said:
"The above findings do not in any way imply an intention to
establish or to regard as established the principle of automatic or
ex officia succession of the United Nations to the League of Nations.
lt has been sufficiently clearly shown, in the course of the written
and oral proceedings in this case, that the theory of automatic
succession is inconsistent with the historical background of the dis
cussions and resolutions of the two great bodies during the transi
tional period in 1945-1946." (I.C.J. Reports I962, p. 364.)
It is true that the Applicants still persisted in their Reply with a
presentation of an organized international community theory which,
however, they did not cali a theory of succession or devolution. But,
Mr. President, in our Rejoinder, V, where we went through this matter
at pages 31-34, we demonstrated that that is the only possible way in
which this theory, or contention, regarding an organized international
community could be viewed. It could only be viewed as another form of
putting a contention regarding a principle of succession which would
operate automatically and independently of consent at the stage of
transition. And we pointed out that if that theory was to be accepted,
it would have to be on the basis of an implication to be read into the
initial instruments, viz., the Covenant of the League and the mandate
instt ument. Vvepointed out, Mr. President, what difficulties there would
be in the way of arriving at such an implication, rendering it, in our
submission, an entirely impossible proposition. We referred in that regard
to an extract from the opinion by the honourable President of the Court
in the United Nations Expenses Opinion in July rg62, indicating the
difficulty there is in the way of a contention that a basic instrument
such as the United Nations Charter, which was being dealt with in that
case (but the observations would apply also ta an instrument of the
nature of the League Covenant)-what difficulties there are in the way
of implying in an instrument of that kind something which was not
expressly stated, or is not clearly and implicitly conveyed by the words
used.
Although such an instrument arises by way of processes of agreement,
and to that extent then the ordinary processes of treaty interpretation
and the ordinary approach of treaty interpretation are applicable, never
theless, in the practical sense, these instruments are intended to operate
virtually asstatutes. They rue to have a very long period of applica
tion; they are to affect a multitude of States and their interests; they
are to affect not only the original contracting parties who brought the
instrument into being, but also numerous parties who may become parties
to the instrument at later dates and who had no part at all in the pro
cesses that brought those instruments into effect. Those factors were
stated in the opinion of the honourable President in the United Nations
Expenses case, and we refer to that in our Rejoinder, V, at page 32, in
this particular context. We also dealt with the facts in our Rejoinder
and pointed out how impossible it would be, in the light of the circum- ARGUMENT OF MR. DE VILLIERS 313
stances which existed at the time of the formation of the League of
Nations and the establishment of the mandates system, ta infera corn-·
mon intent on the part of the parties concemed ta have such a vague
form of obligation which would render the mandatory powers bound to
organizations which could not be contemplated at that stage, of the con
stitution of which they would know nothing, of which the only thing
that could have been said to them would have been: "Well, as long as
the organization could in sorne way conform ta the description of being
an organ of the organized international community, then you must be
willing to submit to supervision by such an organ." We pointed out that,
from a practical point of view, that was a completely impossible proposi
tion to establish to overcome the diffi.culty, under ail circumstances, of
esta blishing an implied term in an instrument of the typ~ with which
we are dealing.
That was the position as it stood at the conclusion of the pleading.
Before the Rejoinder, Mr. President, there was another development,
namely the judgment of this Court in the Barcelona Traction case, and
it seems that the Applicants realised their dilemma, viz., that for any
theory or principle or doctrine of succession, they had ta find something
else. They thought that they could find a solution on the basis of the
reasoning in the Barcelona Traction case, with which they now appear
to attempt to identify their case.
In that case, if the Court will recall, the question at issue was the
effect of a particular adjudication clause, and the effect on the adjudica
tion clause of the dissolution of the Permanent Comt, which was the
tribunal referred to in that clause. The Court's construction of the clause
itselfin the particular instrument in which it occurred, and in the par
ticular circumstances in which it came to be agreed upon, was as follows:
"It was not the primary purpose to specify one tübunal rather
than another, but to create an obligation of compulsory ad}udica
tion. Such an obligation naturally entailed that a forum would be
indicated; but this was consequential.
If the obligation exists independently of the particular forum ...
then if it subsequently happens that the forum goes out of existence,
and no provision is made by the parties, or otherwise, for remedying
the deficiency, it will follow that the clause containing the obliga
tion will forhe time being become (and perhaps remain indefinitely)
inoperative, i.e., without possibility of effective application. But if
the obligation remains substantively in existence, though not func
tionally capable of being implemented, it can always be rendered
opera.tive once more, if for instance the parties agree on another
tribunal, or if another is supplied by the automatic operation of
sorne other instrument by which bath parties are bound." (I.C.J.
Reports I964, pp. 38-39 and V, p. 47.)
Mr. President, there then is the analogy which the Applicants now
seek to apply by saying that the original obligation here was not
tied up to a particular supervisory administrative organ but that it
was a general obligation of international accountability; one that could
become dormant upon the falling away of the organ, but would not
disappear.
But now, having accepted that as their basis, the Applicants also had
to accept the further implication as set out in this Judgrnent, i.e., they314 SOUTH WEST AFRICA
had to accept the further implication that this obligation would remain
donnant unless sorne new agreement was entered into regarding a
substitution of supervisory organs, or unless sorne other instrument by
which bath parties were bound provided such an organ relative to the
particular obligation. And that is why, it seems tous, the Applicants have
now acccded to the position that they have to establish at least this
substitution of supervisory organs by a process involving the consent of
the mandatory, in arder to bring them to a substantiation of their
submission that we are now obliged to account ta the organs of the
United Nations.
But now, Mr. President, that placed the Applicants in a further
dilernma as far as the 1950 Opinion was conccmed. 1 may say, in paren
thesis,1 shall deallater with the merits of the Applicants' attitude as now
based on this analogy of the reasoning in the Barcelona Traction case.
I do not intend to deal with that now. 1 am just sketching the develop
ment of their attitude. What 1 want to stress now is that the Applicants
were now placed in a dilernma as far as the 1950 Opinion was concerned.
They bad to abide by their former interpretation of the Opinion as having
held that substitution of the United Nations for the League took place
by virtue of a doctrine or principle of succession, in which case they
would be taking up an attitude at variance with their own interpretation
of the Opinion. They would then no longer be able to rely so strongly on
the Opinion as such. In other words, they would then have to say "our
earlier interpretation of the Opinion is still correct". The Opinion did not
rest upon anything that happened in 1945 or 1946. The Opinion rested on
a doctrine of succession which eman.ated from the original instrument.
That is, too, their interpretation of the Opinion, but their own contention
is now different-their own contention now is that the matter really
rests on something which happened, or is dependent upon an essential
link of something which happened, in 1945 or 1946. Then they could now
no longer rest upon the Opinion as such.
That was the one alternative open to them, the one horn of the dilemma.
The other one was this. They bad to concede that their former inter
pretation of the 1950 Opinion was wrong and that the Court in fact, in
1950, based its fi.nding that the United Nations had rcplaced the League
as supervisory authority, not only on what they described as the inter
national rules regulating the Mandate but also on tacit consent, on
Respondent's part, in the years 1945 to 1946. And as soon, Mr. President,
as they conceded that-that the Opinion in I950 also rested on this
necessary element of a new consent or agreement in 1945 and 1946-then
the Applicants would at once acknowledge something which they were
never prepared to acknowledge before, namely the potential relevance
and significance of the new facts which we have brought before the
Court, affecting the weight to be attached to the 1950 Opinion.
Now, Mr. President, how did the Applicants react to this dilemma?
Thcir reaction is, in effect, in our submission, rather pathetic. In effect,
they represent that they still rely on the 1950 Opinion but they give a
new interpretation toit, away from the succession idea, and, as a basis
for that, they adjust their own attitude so asto fit in with this new view
of the rgso Opinion as not being based on a succession idea but as being
based on the objective elements of the situation, including consent on the
Mandatory's part and as being aimed at the maintenance of the status
quo. ARGUMENT OF MR. DE VILLIERS
So we find, Mr. President, that first they adjust their own attitude and
they say in the verbatim record at page 132, supra:
"Reference to 'succession' in the Applicants' pleadings is intended
to refer to the fact that there was no mechanical or operational
problem of succession. The terms 'replacement' or 'substitution',
might, indeed, have better conveyed the intended sense, and the
Applicants would have preferred to have used them and regret that
they did not."
1 have pointed out before, Mr. President, that this change now is not a
mere change of terminology; it is a change of substance, and 1 do not
have to explain again what the change of substance involves. It involves
a complete departure from the concept of a succession operating in
dependently of consent in 1945 or 1946, to acceptance of a proposition
that new consent in 1945 and 1946 is a necessary link in the Applicants'
case.
Then, Mr. President, they proceed to associate themselves with state
ments made by the then President of the Comt, the honourable Judge
Winiarski, and other judges-the other judges who gave a minority
opinion-in 1956, in the 1956 Opinion regarding South West Africa, on
the question of the further interpretation of the 1950 Opinion. And the
Court will recall that there was in that Opinion (that was on the question
of the oral hearing of petitioners at the United Nations) the question
whether the granting of oral hearings to petitioners at the United Nations
would be in keeping with that part of the Opinion of 1950 which said that
the degree of supervision to be exercised by the United Nations organs
was not to exceed that exercised by the League organs, or words to that
effect. It was common cause that during the time of the League the
League organs never gave oral hearings to petitioners. In fact, it was
contended, and the majority of the Court found, that the League had the
power to grant such oral hearings but never made use of it, and the
question then arase asto the interpretation of the 1950 Opinion. Would
this indication, that the degree of supervision is not to be more onerous
than in the time of the League, refer to the powers which were vested in
the League, or would it refer to the actual practice in the time of the
League? Would the United Nations have to continue the actual practice
and be bound by the limits of the actual practice, or could they go to the
full extent of the limits of the powers actually vested in the League,
whether the League exercised them or not? And the Court will recall
that there was a difference of opinion between the members of the Court
on the manner in which the 1950 Opinion was to be interpreted in that
respect.
President Winiarski sided, in a separate statement, with the conclu
sion arrived at by the majority, namely that the United Nations organs
were competent to grant oral hearings, but he arrived at his con
clusion for different reasons from thosestated by the majority in a joint
judgment.
The majority's judgment rested on the proposition that there had been
a succession or a devolution of powcrs from the League to the United
Nations. Therefore, the United Nations had the same powers as the
League had in this respect and the United Nations could exercise the
same powers. The limit set was, therefore, the limit of the powers and
not the limit of the actual practice in the time of the League. That was SOUTH WEST AFRlCA
the effect of the joint majority judgment-1 am leaving out of account
for the moment that separa te one of President \Viniarski.
The minority opinion was based on the proposition that there was no
idea of a succession or a devolution of powers, that the whole idea was
a continuation of the status quo of existing practice, and that part of the
existing practice was the rendering of reports. The majority opinion
inclicatedthat the Court in 1950 (as the minority understand it) held that
there was an agreement on the part of aU conccrned to maintain the
status quo-that there was in that regard also consent on the mand.atory's
part. ·
I shall read a passage at the top of page 65 in the 1956 Opinion of the
minority in this regard:
"An important element of the situation then existing was referred
to on a number of occasions by the Court in the reasoning of its
Opinion: that is, the willingness expressed by the Union of South
Africa to regard itself as continuing to exercise its Mandate, to
continue to administer the Territory in accordance with the provi
sions of the Mandate and to continue to render reports to the United
Nations."
I shall deal later with the question whether that view of the situation
-whether there was any such expression of willingness as regards the
rendering of reports-was factually justified. That is another matter.
But that is as a matter of interpretation as to what the minority opinion
in 1956 said regarding the Opinion of 1950.
President Winiarski sided with the judges in the minority as to this
interpretation of the 1950 Opinion but, as 1 have said, for a different and
·distinct reason, came to the conclusion that it was nevertheless competent
for the United Nations to exercise their power in regard to petitioners.
The reasoning in that regard is not relevant to present purposes.
Now, that, then-the effect of the 1956 Opinions-demonstrates the
signifi.cance of the Applicants' attitude where they say that they now
associate themselves with the statements made by the then President
Winiarski and by the judges who gave the minority opinion. The extract
which they quote from President Winiarski is the following:
"... the whole structure of the Opinion of 1950 was founded on the
objective elements of the situation which arose as a result of the
disappearance of the League of Nations, and thatthat Opinion found
in the General Assembly the organ qualified to exercise those
functions which could not be allowed togo by default". (Pp. 132-133,
supra.)
The further passage quoted is this: .
"The Court, unattracted by the idea of succession, of the transfer
of powers, based itself on the objective elements of the situation
-the importance of international supervision under the Mandates
System as well as the provisions of the Charter of the United
Nations." (P. 133, supra.)
And the Applicants then state their own attitude so asto agree with
this conclusion, as follows, that upon "evaluation and appreciation of the
events and transactions and undertakings which occurred in 1946, and
during this period ... ", "it becomes obvious ... that ali the parties,
including the Respondent, the League of Nations, the United Nations, ARGUMENT OF MR. DE VILLIERS 317
acted in a manner entirely consistent with the 'objective elements of the
situation which arose as a result of the disappearance of the League of
Nations' ".
Mr. President, I pointed out that the Applicants now identify them
selves with the view which was taken by the minority judges in 1956,
together with Judge Winiarski, on the interpretation of the rgso Opinion,
as to whether there was a succession involved, or whether it was a
maintenance of the status quo, and rest on objective elements of the
situation, including consent on the Respondent's part to a substitution
of the supervisory organ. The Applicants, having identified themselves
with the attitude there taken up by the minority judges, and by Judge
Winiarski, say that they will present to the Court-
"... relevant events and undertakings which took place during the
period when the United Nations Charter was formulated, the League
of Nations was dissolved, and the United Nations commenced
operations". (P. 133, supra.)
And what would be the purpose of this survey, Mr. President? In the
Applicants' own words they indicate that they would show the follow
ing-
"... that the League of Nations took ali action which was appropri
ate under the circumstances, to make clear the intention of the
Members, including the Parties to these proceedings, that despite
its dissolution the obligations under the Mandate would continue-
'... until other arrangements have been agreed between the
United Nations and the respective manda tory Powers' ".
They say in the same record (p. 134, supra):
"Respondent voted in favour of the r8 April 1946 resolution, thereby
acquiescing in what the Court termed a presupposition of the
League that the United Nations would take over the supervisory
functions of the Mandate."
Clearly then, Mr. President, the object is to establish consent on the
part of Respondent. This is in contrast to the previous attitude of the
Applicants which was to the effect that-
"... none of the ... decisive reasons underlying the rgso Opinion
rests on a premise of tacit consent, whether on the part of the Re
spondent, the League of Nations or the United Nations".
Now if the matter had rested there one could state with sorne conviction
that that is the position in which the Applicants now place themselves,
but it is not quite so easy, Mr. President. It may be sorne policy on the
part of the Applicants to keep one guessing, because they say something
and then later on in the record we again find something which appears to
be either contradictory or a qualification of what they said before. In this
particular respect, the Applicants later in their oral presentation revert
to an interpretation of the 1950 Advisory Opinion. There they seem to go
back to the old story that consent in the period of transition was not
necessary. I quote from the verbatirn record at pages 207-208, supra:
"This honourable Court in the rgso Opinion defi.nedand described
the legal and organic relationship between the League and the
United Nations in respect of the law of the mandates system.
First, within the ambit of its general purposes and functions, the
United Nations, in fact, was the only organized body capable of318 SOUTH WEST AFRICA
performing an essential function under the Mandate. It was the only
body in whichthe international accountability ofthe Mandatory could
be satisfied. Hence,the power and capacity to perform the function
of international administrative supervision was reposed inhe United
Nations, as amatter of international law, created by Articl22of the
Covenant, and the rules regulating the Mandate itself. This legal con
sequence was recognized in the fmd.ingof the 1950 Opinion, that:
'It cannot be admitted that the obligation to submit to super
vision has d.isappeared merely because the supervisory organ has
ceased to exist, when the United Nations has another international
organ performing similar, though not identical, supervisory
functions.' "
Again we see, Mr. President, a statement to the effect that the Court's
finding in the 1950 Opinion regarding Article 6 d.idnot rest on a premise
of tacit consent but on the Iaw of the mandates system. But then, Mr.
President, again, immediately thereafter, in dealing with Respondent's
contention that the Court in 1950 had found, by inference, that Respon
dent had tacitly agreed to accept United Nations supervision, the
Applicants say (on pp. 207-208, supra):
"On the contrary, J\fr. President, in the Applicants' respectful
view, the Court's conclusion patently is based upon a series of inter
related reasons, all of which reflect objective principles of law arising
from and, inherent in, the mandates system itself, as well as consent
manifested ~ppropria tyelRespondent and others during the
relevant penod.
Thus, in the 1950 Advisory Opinion, the Court's conclusion rested
on both the objective situation created by the law of the Mandate
in the light of the League's dissolution, and Respondent's consent
made manifest in that situation.''
Mr. President, I should have thought that when there was reference to
the objective situation created, and that that was the basis upon which
the Court made a finding, the Respondent's consent (to continue the
previous situation in regard, inter alia, to reporting and to there being
a new supervisory organ in respect of that) would be an element in that
objective situation-that in fact the objective elements, of which the
Court spoke in 1956, would really be evidential factors from which that
element of consent on the Respondent's part would be inferred-that
general agreement on the part of ail concerned. Otherwise, I do not
understand what legal significance the reference to objective elements of
the situation could have. But here the Applicants speak of the objective
situation as being something additional to Respondent's consent made
manifest in that situation.
Mr. President, the question then arises, what do the Applicants mean
exactly in this regard? Do they abide by their 1962 statement that none
of the decisive reasons underlying the 1950 Opinion rcsts on a premise of
tacit consent? If that is so-if they abide by that-then in adrnitting
that they now have to establish consent they are departing from their
interpretation of the 1950 Opinion. And that, in effect, would mean that
they now d.isagree with that Opinion in two major respects. The one is in
regard to the significance which they themselves say that that Opinion
gave to Article 8o, paragraph 1 (a matter with which 1 have dealt with
before), and the other is in this respect, that they said the Opinion rested ARGUMENT OF MR. DE VILLIERS
on a doctrine of succession, rendering consent in 1945-1946 unnecessary,
whereas the Applicants now reject a doctrine of succession and they
accepta necessity of consent in 1945 and 1946.
That is the one possibility. The other possibility is, have they on
reconsideration changed their mind asto the interpretation which should
be placed on the Court's Opinion of 1950? And ifthey have, then they
cannot reasonably contest, Mr. President, that that Opinion rested
squarely on an interpretation of the 1945-1946 events, and inferring from
that a tacit consent on the part of ail concemed.
The mere fact that it has taken the Applicants two years-more than
that-over four years from the start of these proceedings, Mr. President,
in rg6o-to find out what their case really is in regard to Article 6 and
how it is to be justified in law, ail this vacillation about it, ali this un
certainty, really raises the question whether the Applicants could have
much real confidence in their case in this regard.
On an analysis of what the Applicants now say, and stripping the
verbiage from the essence, it seems tous that the conflicting contentions
before the Court for consideration are now the following.
Firstly,the Respondent contends that the obligation undertaken by it
in Article 6 of the Mandate was to report to, and to submit to supervision
of, a specifie organ of a particular organization, namelyhe Council of the
League of Nations. The Applicants, on the other hand, contend that
Respondent's obligation is one of international accountability, that is,
that Respondent was subject to international supervision.
Secondly, Respondent contends that upon the dissolution of the League
of Nations, the ·provisions in the Mandate for supervision by the League
were not modified or replaced by others serving the same purpose, and
that such provisions consequently lapsed. Applicants, on the other hand,
contend that the obligation of international accountability did not come
to an end at the dissolution of the League and that by consent, acquies
cence, and so forth, on Respondent's part, the United Nations replaced
the League as the supervisory organ.
Those are the basic issues, and I might add as a corollary that the
Applicants apparently do not contend in the alternative that-
". . . the events and transactions during the relevant period do
indeed permit of no other conclusion than that, had a wholly new
agreement been necessary to amend the Mandate in an essential
respect at that time, such a new agreement was, in fact, concluded
among ail the parties to those transactions and events". (P. 131,
supra.)
So what does this review show, Mr. President? It has shown, 1 submit,
on balance and wading through the bit of uncertainty which apparently
still exists, that the former attitude relied upon by the Applicants asto
an automatic succession-something operating from out of the original
instrument rendering consent in 1945-1946 unnecessary-has now been
dropped. That is no longer relied upon and the necessity for an element
of new conse in1945-1946 is accepted.
Secondly, Mr. President. in that same respect the Applicants' inter
pretation of the 1950 Opinion appears to have changed.
They now also interpret the 1950 Opinion to the effect that it rested,
at least in part, on an essentiallink of consent in 1945-1946.
The third implication is (although the Applicants do not say so), that320 SOUTH WEST AFRICA
in effect there is an acknowledgemcnt of the potential value of the new
facts, asthey call them, which we introduced and which were not before
the Court in 1950.
The fourth implication is that in saying that they are not dealing with
the succession at ali, that they associate themselves with the minority
view in 1956, namely that it was relia.nce on objective elements, mainte
nance of the status quo, and so forth the Applicants now find themselves
in this peculiar position that whereas they formerly rested on a view of a
majority of 12 to 2 in the 1950 Opinion, they now have to rest on a
minority view, as the judges separated on this question of interpretation
in 1956.
Together, Mr. President, with the fact that they are now no longer
pressing Article 8o, paragraph r, as having the positive force previously
ascribcd to it and which they apparently still say was ascribed to it in
the 1950 Opinion, ali these factors indicate how open the whole question
now ts as to whether this Court ought to follow the 1950 Opinion or
whether it is to regard itself as free to reconsider ali the relevant evidence
-ali the relevant arguments-that are now before it, and come to its
own conclusion. 1 say that with the greatest respect to the authoritative
weight that is normally given to a pronouncement of this Court. But in
ali these particular circumstances, and having regard to the fact of the
inadequate presentation of facts in rgso-the significance of which now
becomes apparent as well as ali these other factors which 1 have men
tioned, which come into operation jointly in that regard, 1 submit that
clearly the Applicants, by their own change of attitude, have amply
demonstrated the soundness of our contention that the matter is to be
thoroughly reconsidered de novo, and that it is indeed an entirely open
question on which this Court has to pronounce its judgment.
Now, Mr. President, we come to deal with the merits of the conflicting
contentions, those as they have now emerged, and those as 1 have just
summarized them. The Applicants said in that regard in the verbatim
record at page 181, supra:
"... appraisal of Respondent's first major contention rests upon
analysis and interpretation of events. transactions and undertakings
occurring during the period of the formation of the League and of
the mandates system. Similarly, proper evaluation of Respondent's
second contention, that is that when the League dissolved and the
United Nations commenced operations the United Nations did not·
decide to assume supervisory authority, nor did Respondent agree
to submit to supervision by the United Nations, proper evaluation
of that contention involves analysis and interpretation of events,
transactions and undertakings occurring during the period of demise
of the League and the birth of the United Nations."
Now we quite agree with that statement, Mr. President, namely that
it is necessary to revert to the events of those two relevant periods. As
the Applicants did, we intend to caver both those fields in arder to show
the correctness of our contentions and the fact that the answer attempted
to be given on behalf of the Applicants falls very far short of its mark.
But before 1 deal with the events thcmselves in those periods, 1 would
like to say somethi.ng on the general nature of the problems involved and
on the general legal principles involved in a resolution of the particular
issue. ARGUMENT OF MR. DE VILLIERS J2I
The first Issue is that which I might summarize as that of a specifie
organ versus international accountability; our contention being that the
obligation related to a specifie advisory organ only; the Applicants' con
tention being that it was a wider, and a vaguer, obligation of being obliged
to submit to international supervision-in other words, an obligation of
international accountability. ·
Mr. President, 1 have already referred to the assistance which the
Applicants apparently seek to obtain from somewhat vaguely stated
concepts, which might be intended to relate to something outside of the
mandate instruments and the Covenant of the League itself-{:oncepts
such as mandate law, mandate regulations, rules of the institution, and
so forth. 1 have made the submission and 1 confirm it-1 cannat conceive
of any source outside those relevant instruments for any rules, or regula
tions, or law, of this kind. The Court is, in terms of its Statu te, Article 38,
required-
"... to decide in accordance with international law such disputes
as are submitted to it, [and the Court is enjoined by the Article to
apply] ... :
(a) international conventions, whether general or particwar estab
lishing rules expressly recognized by the contesting States;
(b) international custom, as evidence of a general practice accepted
as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and
the tcachings of the most highly qualified publicists of the vari
ons nations, as subsidiary means for the determination of rules
of law."
The last one is subsidiary, the real sources being stated in {a), (b) and
(c). It does seem tome, Mr. President, that perhaps my learned friend
could elucidate this aspect when he addresses the Court again. 1 could
see no basis for classifyingany mandate law, or any mandate regulations,
under any of those headings, except in so far as they fall under heading
(a), namely the particular instruments agreed upon and emanating from
those agreements-the Covenant and the mandate instruments.
In our submission, what is not part of the provisions of the instruments,
what is not part of the agreements set forth in those instruments, ex
prcssly or by implication, cannet play any role in this matter. The foun
dation for this obligation sought to be imposed upon the Respondent,
of accounting to the United Nations Assembly, must rest on consent on
the Respondent's part.
In othcr words, Mr. President, the question to be determined in regard
to this issue of specifie organ versus international accountability, is a
question which must depend either on the interpretation of the expressed
text of the relevant instruments, or on an implication of a tacit agree
ment in those instruments-an implication of something which is not
expressed in those texts-something which nevertheless could be said
to be part of the actual, common intent of the parties as being part of
their agreement.
Those are the only two concepts of law which, 1 submit, really come
into operation here: interpretation of a text; and the concept of implica
tion of something which is not set forth in a text.
It may be relevant to rcfer to one or two of the principles which may322 SOUTH WEST AFRICA
come into operation, or under discussion, with regard to the present
ISSUeS.
Before I refer to them, may I just indicate the nature of the dispute
in regard to the events of 1945-1946. That is the second phase of the
vital issues between the Applicants and ourselves. There again it seems
to be common cause between us that there was never any express agree
ment~any express consent-ta the effect that the United Nations was
to be substituted for the League as the supervising body. Therefore, Mr.
President, if such consent was given, as the Applicants allege that it was
given, it would have to appear, in their own words "from something
which is so unequivocally clear asto admit of no reasonable doubt, asto
admit of no reasonable alternative".
In other words, the ordinary principles have to be applied there of
reasoning by inference-reasoning from circumstantial evidence-and
of finding whether that evidence establishes a certain proposition by in
ference-the proposition here being that such consent was, in fact, given,
although it was not expressed.
In relation to that question, however, sorne of the submissions ad
vanced on behalf of the Applicants would appear to suggest that the
Respondent might be held bound on a basis of preclusion or estoppel
in ether words, on the basis that, although it may not have actually
consented to a certain proposition, it so conducted itself that it was under
stood by other persans or ether interested parties to have consented, and
on that basis, the other parties having changed their position to their
prejudice, the Respondent must then be held bound to that proposition
as ifit had consented. That would seem to be what Applicants contend,
although they have not introduced it by that name. Sorne of their con
tentions would seem to introduce a possible consideration of the principle
of precJusion or estoppeJ, in that particular context. When we come to
deal with that issue I shall also have to refer briefly to the relevant prin
ciples applicable there,but I do not intend to deal with those now. I shall,
for the present, confine myself to the principles of interpretation and the
principles of possible implications of a tacit consent, in so far as they
relate to the original creation of the mandates system and the mandates
themselves.
Now, Mr. President, we have the two concepts: the concept of inter
pretation of a text and the concept of possible implication.
As far as the first concept is concerned-interpretation of a text-1
submit that it is really unnecessary to refer to any canon of interpretation
at ail, that is, with regard to the particular issue now confronting the
Court~th isue of choosing between a conclusion of a specifie super
visory organ or a conclusion of a vaguer concept of international account
ability.That is so for the simple reason, Mr. President, that none of the
texts speaks of international supervision or of international accountabil
ity: none of the texts is capable of bearing any meaning to that effect.
It is not a matter of saying that the text is capable of meaning (a), but
possibly also of meaning (b); that it is capable of meaning (a) and (b),
but the one is more natural than the other-that one is a more natural
construction in the context and therefore that is to be preferred to the
other as a general rule, in the absence of strong indications to the con
trary, and so forth. No quesbon of that kind arises because the only
texts there are, are explicit ones-explicitly referring only to particular
supervisory organs to whom there is to be accounting to their satisfaction. ARGUMENT OF MR. DE VILLIERS 323.
So there is, Mr. President, no question of interpretation of an expressed
text which arises here. When the suggestion by the Applicants is that
the texts are to be construed as having the effect that the obligation
imposed upon the Mandatory was a general one of international account
ability, then they are seeking to read something into the texts which is
not there. They are, in other words, seeking to imply an agreement sup
plementary to the agreement and to sorne extent, as I shall indicate,
contradictory to the agreement as contained in the actual texts.
Now, Mr. President, in our Counter-Memorial, in Book II, as my
learned friend has already stated, we give a review of certain relevant
principles of treaty interpretation and of the principles applicable to a
proposition of inferring a tacit agreement in particular instances. I do
not wish to deal with those in full at alL I want to refer only to certain
aspects emphasized there in regard to this particular question of in
ferring a tacit agreement in particular cases. 1 refer to page III of Book
II of the Counter-Memorial (II). We put the matter in this way, Mr.
President:
"The principle of actuality referred to above involves that the
parties must prima .facie be considered to have expressed their full
agreement in the written text. Exceptionally, however, a conclusion
may be warranted that something goes without saying', i.e., that
the parties were in fact agreed upon something additional to the
text without giving expression to such agreement.
Courts in ali legal systems guard themselves against assenting to
such a proposed implication on any but the most cogent grounds,
realizing that implication on a basis of speculation, or of what the
parties ought reasonably to have done, would amount to the making
of a new bargain or compact for the parties, as distinct from the
Court's true function of giving effect to the bargain or compact
actually agreed to by the parties themselves. Consequently the re
quirement is stressed that an implication of such tacit consensus
must arise necessarily or inevitably from the relevant facts, in the
sense that all other reasonable inferences are excluded."
We submit that two further corollaries arise from the principles stated
above: firstly-
"The term sought to be implied must be capable of formulation
in substantially one way only. If the content of the term sought to
be implied is doubtful, then one cannat conclude that the parties
tacitly agreed on anything at all." (II,p. III.)
This may not be inapposite at aU, Mr. President, to this vacillation in
Applicants' case on the question of whether Respondent assertedly
rendered itself liable to an organized international community, or
whether it. undertook a more vaguely formulated obligation of inter
national accountability or to submit to international supervision.
The other corollary is:
"Where the written document makes express provision for any
eventuality, there is increased difficulty about finding that there
must in addition be an implied term covering substantially the same
ground as such express provision." (Ibid.)
Again not inapposite, Mr. President; where we find that there is express
provision for a supervisory organ, a part of an organization intended by SOUTH WEST AFRICA
its founders to exist for an indefinite time; where there is in fact no con
templation of that organization's going to terminate its existence; how
any scope or room for implication of an additional provision there to the
effect that even after dissolution of that organ there is stiJl to be an obliga
tion of international accountability-l;tow that can be said to arise is, in
my submission, not clear.
Mr. President, the exposition here which I have read refers back to the
Oral Proceedings in rg62, in which we referred extensively to authority.
I am merely giving the Court the reference-it will be found in the Oral
Proceedings of rg62 at page 46 (VII) and the following pages. Extensive
reference is given to international authority, but inasmuch as the prin
ciples are in their essence the same as are applied by municipal courts
in respect of implications in contracts or agreements, sorne reference is
also made to pronouncements of municipal courts in that regard; and
there are, because of their particuiar apposite nature as far as the issues
in this case are concerned, three pronouncements in that regard to which
I would wish to refer very briefly.
The first one is referred to at page 50 (VII) of the Oral Proceedings,
at the bottom of the page. It is a reference to a statement of the relevant
principles by a judge of appeal, later Chief Justice of South Africa, in a
passage which we here cite from the Preliminary Objections (1) at pages
343-344, where the learned Justice Watermeyer said the following:
that "there are two cardinal rules of logic which cannat be ignored" in
reasoning by inference. The first is that-
"The inference sought to be drawn must be consistent \\--ithaU
the proved facts. If it is not, the inference cannat be drawn."
And secondly:
"The proved facts should be such that they exclude every reason
able inference from them save the one sought to be drawn. If they
do not exclude other reasonable inferences, then there must be a
doubt whether the inference sought to be drawn is correct."
That accords, in my submission, Mr. President, with formulations given
ali overthe world in regard to this question of reasoning by inference
whether it is a question pertaining to implication of a termina contract,
or whether it is a question in general pertaining to a conclusion to be
arrived at by having regard to circumstantial evidence.
Then, at page sr (VII), of the Oral Proceedings we cite this very well
known pronouncement by Justice Scrutton in the case of Reigate v.
Union Manujacturing Co., where the matter was put in a manner whlch
is particularly apposite from a practical point of view to the type of
questions which arise:
"These principles [the learned Lord Justice said], however, have
been clearly established: The first thing is to see what the parties
have expressed in the contract; and then an implied term is not to
be added because the Court thinks it would have been reasonable
to have inserted it in the contract .... A term can only be implied
if it [is] necessary in the business sense to give efficacy to the con
tract; that is, if it is such a term that it can confident!y be said that
if at the time the contract was being negotiated someone had said
to the parties, 'What will happen in such a case', they would bath
have replied, 'Of course so and so will happen; we did not trouble ARGUMENT OF MR. DE VILLIERS
to say that; it is too clear'. Unless the Court cornes to sorne such
conclusion as that, it ought not to imply a term which the parties
themselves have not expressed."
And then, Mr. President, there is thisfurther pronouncement at the same
page of the Oral Proceedings from Lord Justice McKinnon in Broome v.
Pardess Co-op. Soc., a case decided in 1940 in the United Kingdom. He
stated: "I will add only one observation to those passages"-this was
after a reference to, inter alia, the passage I have just read, and similar
passages in other decided cases. He said :
"Where the parties have made an express provision as regards
sorne matter with regard to the contract, it is, and must be, ex
tremely difficult for either of them to say in regard to that sub
jectmatter, asto which there is an express provision, that there is
alsoan implied provision or condition in the contract."
Those, then, are the basic principles in regard to implication of a term
not expressed by the parties.
Then, Mr. President, we come to the principle of effectiveness referred
.to by my learned friend in his argument. We find his reference in the
verbatim record at page rSz, supra. There one sees that my learned
friend cites from what we had stated on the subject in our Book II, and
he cites the following:
"This principle takes account of the abjects and purposes of the
instrument to be interpreted, and presumes that the parties intended
for particular provisions the maximum effectiveness; consistent
with the clear text, towards achievement of such abjects and pur
poses."
At once, Mr. President, the words "clear text" stick out, if I may put it
that way, and it strikes one as an expression which ought not to occur
in such a formulation at all. And indeed, my learned friend immediately
proceeds to comment on that expression, and he says:
"Although Respondent's comments, just quoted, appear to the
Applicants in general to be a correct formulation, note might be
taken that the phrase 'clear text' in the second quoted passage may
involve a latent ambiguity,"
And so it goes on from the "latent ambiguity" to the effect that the
question introduces another canon of interpretation of natural and or
dinary meaning, and so on, and that the Court has said that that rule
ofinterpretation is not an absolute one-that was the linc of my learned
friend's argument. Mr. President, .the whole answer, the very simple
answer, to aUthis is that the ward "clear" does not appear in our formu
lation at all. It was something interpolated-I don't know by whom,
but it came to be interpolated in this version which my learned friend
read out to the Court; and where my learned friend therefore speaks,
at page r8z of that record, of the "phrase 'clear text' as employed by
the Respondent", it is a misnomer. If we refer to page II2 of Book Il of
the Counter-Memorial (II), one will see that the formulation is there
exact! y as quoted, except for the omission of the word "clear", and of·
course that is the sound formulation of the principle: the Court, in ac
cordance with what it regards as the intention of the parties, attempts
to give to the provisions their maximum effectiveness consistent with SOUTH WEST AFRICA
the text-maximum cffectiveness towards achievement of the object
and purposes of the particular agreement or instrument.
Now, 1\ir. President, the way in which this principle can arise herc
isnot as an aid to interpretation, because, as I have said before, there
is no question here of competing possible meanings in a text to be inter
.preted; there is a possible field for application of this princip le; viz. in a
case where a text is not clear, where there are competing possible mean
ingsand where that principle can assist the Court in preferring one mean
ing to another, but that is not the sense in which it could arise here.
The only sense in which it could arise would be as an aid to a court in
applying a proposition, or in considering a proposition, whether a particu
Iarterm is to be implied in a particular instrument. We deal at page II2
of our Counter-Memorial (II), with that difference in the possible field
of application of this principle, and I proceed immediately then to this
second possible field, which is dealt with as from the bottom of page II2
and running on to page IIJ, paragraph 30 there:
"In its operation relative to implied terms, the principle of effec
tiveness also has a relatively limited application. Basically it only
means that, for the purpose of deciding whether a term is to be im
plied or not, regard is to be had to the probability that the parties
would have intended a result which is in consonance with the general
abject or purpose which they had in mind. To put it in a different
way, the fact that the parties had a certain object or purpose in
mind may in certain circumstances give rise to grounds for inferring
an implied term. In aH cases the ordinary rules re]ating to implied
terms would still apply. Thus it would not be sufficient to have
regard merely to the purpose or abject of the parties. The purpose
or abject would be only one of the circumstances to be considered,
although in sorne cases it might be a very important one. It would,
however, always be necessary to examine all the relevant facts and
circumstances, giving due weight to each one. Furthermore, the
ordinary rule applies that an implied term cannat override the ex
press terms of the instrument, or operate to regulate sorne aspect
for which express provision is made in the instrument. Thus a
finding that the parties had a certain purpose or abject in mind,
would not justify a radical amendment of the instrument in arder
to give effect to such purpose or abject. ln this regard, particular
reference may be made to the follow:ing passage from The Law of
Treaties, by Lord McNair:
'The rule of effectiveness must mean something more than the
duty of a tribunal to give effect to a treaty; that is the obvia us
and constant duty of a tribunal; that is what it is there to do.
The rule must surely mean, in the mind of the party invoking it:
"If you (the tribunal) do not construe the treaty in the way that
I submit to you to be correct, this treaty will fail in its abject."
But that is a petitio principii, because, as has been submitted in
the previous chapter, it is the duty of a tribunal to ascertain and
give effect to the intention of the parties as expressed in the words
used by them in the light of the surrounding circumstances. Many
treatiesfail-and rightly fail-in their abject by reason of the
words used, and tribunals are properly reluctant to step in and
modify or supplement the language of the treaty.'" ARGUMENT OF MR. DE VILLIERS 327
Again, Mr. President, in the footnote relative to the passages which 1
have read, there are references to our treatment of a number of authori
ties, international and from municipal courts and authorities, on this
aspect of the matter. One finds that at pages 57 and the following of the
Oral Proceeclings (VII). There again, there is only one very brief passage
-a pronouncement of the late Judge Lauterpacht, to which 1 would
refer, as being something in line with the passage from Lord McNair
which 1 have just read. It is at page 62 of the Oral Proceedings (VII) of
1962:
"... absence of agreement could not properly be supplemented by
an inference aiming at securing for the instrument in question a
higher degree of effectiveness than was warranted by the intentions
of the parties".
That, Mr. President, brings us immediately to my learned friend's
contention to the effect that in deciding whether one deals with an obliga
tion related to a specifie supervisory organ only, or, as he says, a more
general one of international accountability, one is to have regard not
only to what the parties actually contemplated at the time, but also to
what they might be expected to have thought orto have decided if some
thing of which they evidently did not think had been brought to their
attention. That is how 1 understood him in the verbatim record at page
183, supra, and he proceeds also to page 184 on the same subject. At
page 1S3 my learned friend says this:
"Respondent's contention that the obligation of international
supervision, imposed and assumed under the Covenant and Man
date, merely was intended to refer to a specifie supervisory author
ity, to wit, the League Council, is based upon the argument, inter
a#a, that:
'Since in fact nobody in 1920 contemplated the possibility
of the future dissolution of the League, it would be unrealistic to
impute an intention to the authors of the Mandate to guard against
the possible consequences of such dissolution."'
That is the quotation from our Rejoinder. My learned friend proceeded:
"This argument, with all respect, seems to the Applicant to in
volve a non sequitur and, moreover, misapplies principles of inter
pretation. It is, we think, a non sequitur because the undenied fact
that nobody in 1920 foresaw the dissolution of the League of Nations
has nothing to do with what they would have wished to guard against
had the possibility been envisaged."
Mr. President, perhaps 1 should just conclude by referring also to the
passage at page 184, supra, where my learned friend says:
"Courts frequently determine, in the light of circurnstances, the
nature and other provisions of an agreement, what the parties
could have intended had they foreseen certain possibilities."
1\Ir. President, as a proposition applying to the question whether an
implication is to be read into a contract-whether something is said to be
in fact and in law part of a contractual or treaty relationship between
parties-this is the first time 1 have ever heard of such a proposition.
lt must inherently, on an examination, on fust principles, be unsound.
Courts are there to give effect to agreements in fact arrived at between
parties. Courts are not there to make agreements for parties, to say what SOUTH WEST AFRICA
parties ought reasonably to have done under certain circumstances, what
they ought to have agreed upon had they thought of something, or what
they probably would have agreed upon, had something been brought
to their notice. By recognizing an implication in a contract, and saying
that something was tacitly part of an agreement, although not expressed,
the Court gives effect to something wl_lichit finds as a fact, something
which it finds as having in fact been contemplated by the parties as being
part of their agreement. The only reason why they did not express it must
be the reason as we have heard it from the authorities 1 have quoted, that
in the light of their discussions with one another they did not even trouble
to express that point because it was too dcar. lt was something that
must have therefore been present in their minds, although they did not
trouble to express it. But as soon as we come in the sphere of something
of wlùch they admittedly did not think (and here we have it on record
by our leamed friend for the Applicants-that is the admitted fact-that
nobody thought of the possibility of dissolution of the League), and as to
what provision was to be made for the situation that might then arise,
what ground can there be in Jaw and in 1ogicfor saying that the parties
in fact had any contemplated agreement about that matter?
· The formulation is inherently unsound not only as compared with
basic principles, but also on the authorities to which 1 have referred.
It is basically unsound. 1 can give the Court one reference which perti
nently deals with this point, viz. in the Oral Proceedings of rg62 (VII),
at page 52. Itis a case of which the name is not given in the Oral Pro
ceedings at that particular page. The name of the case was actually
Rapp and Maister versus Oranowsky, 1943, W.L.D. 68, at pages 74-75.
lt was a case in which a South African judge, Judge Millin of the Wit
watersrand Local Division, had to apply these principles of implication of
tacit agreement. The learned judge referred to the same authorities to
which 1 have referred here, the well-known pronouncement of Justice
Scrutton and the others that go with it. And he said as follows:
"The cases show that the Court has to be continually on its guard
against being persuaded to introduce a term which, on analysis of the
argument, appears to be no more than a term which would make the
carry:ing out of the contract more convenient to one of the parties or
to both of the parties and might have been included if the parties had
thought of it and if they had both been reasonable. You are not to
imply the term merely because if one of the parties or a bystander
had suggested it, you think only an unreasonable persan would have
disagreed. You have to be satisfied that both parties did agree. It is
quite a different proposition, if in the hypothetical case ScruttL.J.
puts in, you feel the parties might say: 'You have called our minds
to something we have not thought of and what you say is not
unreasonable, Jet us discuss it.'If that is ali that the Court feels
migh ~ave happened then the Court is not entitled to imply the
term.
As 1 say, it follows from an application of the basic principles, principle
that the Court is to give effect to an agreement actually arrived at and
not to something speculative which it thinks the parties may, or would
.probably even have agreed upon, if ît had been putto them. That is not
the function of the Court.
The only type of case in this type of creative confusion, Mr. President ARGUMENT OF MR. DE VILLIERS
-the only type of case where that kind of approach to what the parties
would probably have intended had their minds been directed to a point
where that kind of approach is to be followed-is not one in relation to
finding what was a term or a provision of an agreement between the
parties. It arises only in what 1 might cali an ex post factsituation where
the Court is confronted with a difficult question, say, of severability or
inseverability of a contract, or of a statute. The position arises that the
Court finds that a particular part of a contract is illegal, a particular
part of a statute is ultra vires, or a particular part of a contract or a
treaty or an agreement has become inoperative, and the like. Then a
question arises: Can the rest of that instrument stand-will it be a
statute, or a treaty, or a contract? And the test to be applied, as we
know, on the principles, is again a test asto the intention of the creators
of the authors-of that instrument, be it a legislature or contracting
parties. And then very often the Court cornes before this artificial
position, and it is a position which arises in this case too, on an issue on
which we shall have to deallater. But if it is quite clear that the parties
did not actually apply their minds to that particular point-the parties,
or the legislature, or whoever it might be-the Court has to a certain
extent to surmise from objective indications what the parties or the
legislature would have intended had they thought specifically of that
particular point. And that question, because of no other means of deter
mining it, the Court may very often have to determine on a preponder
ance of probability, one way or the other. But that is because the Court
is then forced to come to a conclusion one way or the other because of
this ex post factosituation which has arisen. But that is no criterion, and
it cannot ever be a criterion for determining, Mr. President, whether in
fact the parties were agreed upon a proposition which is said to operate
as a part of an agreement between them.
Then, Mr. President, my leamed friend, Mr. Gross, referred to a passage
in the dissenting opinion of Mr. Justice van Wyk in rg6z in this Court.
We find that at page 185, supra, of the verbatim record. The passage
reads as follows:
"In the course of a consideration of principles of construction, in
his 1962 dissenting opinion Judge van Wyk made the following
comment, pertinent to the question under discussion:
'One must also bear in mind that parties frequently delibera tely
use wide terms so as to provide for ail possible situations, foreseen
and unforeseen, and it follows that when a situation not foreseen
by the parties arises which falls within the meaning of the words
employed by them they are deemed to have had a common
intentiOn in regard thereto.' "
That certainly, Mr. President, with the greatest respect, is a very sound
proposition, but totally inapplicable to the situation in which my learned
friend seeks to apply it, that is, the type of situation where a specifie
formulation is used with the intent that its meaning is to cover anything
that might fall within that meaning, whether that particular practical
situation is then thought of or whether it is not thought of.
If a treaty is made applicable in all British territories when a certain
situation obtains, then surely that treaty will apply at the time of its
application· in every territory that could be called a British territory.
Whether it was such a tcrritory at the time when the treaty was entered SOUTH WEST AFRICA
330
into, whether there was any contemplation at that time whether that
territory would later come into British domain or not, could not affect
the position. That is the type of situation in which this formulation by
the learned Mr. Justice van \Vyk would apply.
Again, if parties agree that sorne agreement would operate between
them in respect of all public holidays, and the next year a new public
holiday were declared which they did not contemplate at the time, then
certainly this would be included as being part of their bargain because
that is what they intended. If, of course, there are other indications of
intent-an indication which limits their intent only to things which they
contemplated at the time-then, of course, effect would be given to that
intent. But that is the type of thing that could arise.
The basic requirement is that there must fust be an agreement-a
formulation which is in terms applicable to a particular thing. Then the
question of whether that thing was specifically contemplated in advance,
or whether it was not contemplated in advance, can come into operation,
and the question whether it was then intended to be included, or not to be
included in the formulation would fall to be decided. But one has to have
that foundation first-that premise-before anything of this kind can
arise.
Now how does rnylearned friend seek toapply it ?Mylearned friend says:
"Article 22 of the Covenant of the League used very 'wide terms'
indeed in formulating and innovating the legal principle-
·...that the well-being and development of such peoples [that is,
peoples not yet able to stand by themselves] form a sacred trust
of civilization and that securities for the performance of this trust
should be embodied in the Covenant.' ...
Read in the light of this overriding purpose, the conclusion is not
merely permissible, but, with respect, it seems to be unavoidable,
that the intention of all the parties to the Covenant and to the
mandates system must be presumed to have been that, if the League
were to dissolve, which was not foreseen and not predicted, sorne
other way would have to be found by which the Mandate would be
supervised." (P. r85, supra.)
Now, Mr. President, with the greatest respect, 1 see not the !east
possible connection between this submission-this contention-advanced
to the Court, and the principle quoted from the judgment of Mr. Justice
van Wyk.
The portion of Article 22 which my learned friend cited to the Court
mere!y states the broad principle of a sacred trust of civilization and that
securities for the performance of this trust should be embodied in the
Covenant. It says nothing more. The sacred trust of civilization in itself
may or may not include accountability, depending upon what people
decide aboutit. Article 73 of the Charter of the United Nations speaks of
a sacred trust of civilization in that regard and has no provision for
accountability in respect thereof. \Ve ali know that the formulation
"sacred trust" was used long before the mandates system came into
being, in relation to various colonial situations without any form of
accountability. The mere fact that there is such a sacred trust of civiliza
tion in itself imports no concept of international accountability whatso~
ever.
Next, Mr. President, there is the statement that "securities for the ARGUMENT OF MR. DE VILLIERS 33!
performance of this trust should be embodied in the Covenant". That
surely is a reference to particular provisions to be found in the Covenant
prov1ding for security, and ifone is to see what securities were intended
to be provided, one looks at the particular provisions of the Covenant to
see in what way those securities were expressed-in what way the
intention of the authors of the Covenant was expressed in relation to
those securities. Then one finds the words and to what they apply. Then
one finds the specifie words that the "Mandatory shall make to the
Council of the League of Nations an annual report" and to nobody else,
in so far as is relevant to the particular point under consideration.
So, Mr. President, there is nothing in the Covenant and nothing in the
mandate instruments emerging from the Covenant which could be said
to involve an application of a principle stated by Judge van Wyk. If
there is a wide formulation, anything falling within that formulation
could be taken to be included, even though not actually contemplated.
The wide formulation presupposed in a statement of that kind is non
existent relevant to the particular point which my learned friend wishes
to make.
In any event, there is this strangeness about the concluding words of
the quotation reading "sorne other way would have to be found by which
the Mandate would be supervised". One may ask the question if there
was such a contemplation, what would the contemplation have permitted
so far as sorne other way was concemed? Would the parties have con
templated that a court of law could now decide whether sorne other
international organization is to be regarded, for practical purposes, as a
good and a sound substitute for the League supervisory organs and that
the Parties would have to be bound by such a determination. This is, in
eftect,what my learned friend seems to suggest.
Surely, Mr. President, if there was a contemplation on the part of
parties that "sorne other way would have to be found", the normal
contemplation would be that there would have to be no agreement upon
the point. The mandate instrument itself makes specifie provision that
if and when the circumstances may require it, there can be agreement
between the Mandatory and the Council of the League so as to effect a
modification of its terms and provisions.
[Public hearing of I April I965]
Mr. President, at the conclusion yesterday 1 was dealing with certain
principles of law and of interpretation and of implication of provisions
of a contract, or an agreement, or a treaty-certain considerations that
are basic to the consideration of the dispute between the Parties-with
which 1 propose to deal further this morning.
There is one of these underlying principles on which 1 would stilllike
to say something more, and that is my learned friend's reference to the
possibility that if one has regard to implied intentions on the part of the
contracting parties-a possible tacit agreement between them-One
looks not only at what they actually contemplated but also at what they
would have contemplated if something about which they had not
thought at ail was brought to their attention. I submitted on principle,
and with reference to authority, that that was an untenable proposition.
My learned friend in the course of developing that argument referred
the Court also to the decision in the Barcelona Traction case. We find that SOUTH WEST AFRICA
332
reference in the verbatim record at pages I85-186, supra. After reading
from the Judgment of the Court in the Barcelona Traction case, my
leamed friend said, at page 186:
"The Barcelona Traction case, it is submitted, demonstrates that
the Court will construe the intention of the parties to an agreement
in the light of what their common intent wotùd have been, if they
had foreseen developments relevant to their common purpose."
Mr. President, with submission, 1 have read the Barcelona Traction
case very careftùly and I do not find a word of support anywhere in that
Judgment for a proposition of this kind.
My learned friend went further. He said that the parties to the com
promissory clause in the Barcelona Traction case did not foresee the
demise of the Permanent Court, and yet the Court had no difficulty in
.reaching the conclusion that, in view of their purpose, the parties would
have intended to submit their dispute to the new Court, had they antici
pated the demise of the old one. Mr. President, 1 find no reasoning
whatsoever on these lines inthe judgment in the Barcelona Traction case.
What the Court did find, in my submission, was this: the Court found that
the parties were, in fact, agreed upon an obligation to submit to judicial
seUlement of a dispute and that that obligation cotùd stand, and was in
terms of their agreement to stand, independently of the question of the
particular forum, which was under discussion in relation to another term
of that same agreement.
The Court found, in other words, that there was an actual agreement
between the parties that that general agreement to submit to adjudication
could stand even though the particular forum referred to in one of the
clauses relating to that obligation was to fall away. The Court gave
effectto that agreement which it found, in fact, existed between the
parties. The effect of the agreement was that when the particular forum
feil away, the agreement to be subject to adjudication remained-that
obligation remained. The clause in question became dormant and it could
not be operative again until a new forum was substituted by agreement.
A new forum was substituted by agreement at the stage when both
parties became signatories to the Statute of this Court. So, aU the Court
did in the Barcelona Traction case was to give effect to what it found to be
the actual agreement between the parties. There was nothing which
rested upon a basis of what the parties would have thought, or would
have decided, if something they had not thought of, had been brought to
their attention.
Now, Mr. President, on the basis of that background we proceed to
deal with the first of the basic issues between the parties regarding
Article 6--that is, what I termed yesterday, the issue of a specifie
superviSOI}'authority versus the contention of a general obligation of
international accountability, or to submit to international supervision.
For the purposes of weighing that issue between the parties we also have
to traverse the field of the history and the surrounding circumstances
pertaining to the establishment of the League of Nations and of the
mandates system.
We noted earlier, Mr. President, that the actual terms of Article 22
.of the Covenant, and of Article 6 of the Mandate, providing for super
vision by League organs, were entirely clear and explicit. We submitted
that no implication of the kind which is contended for by the Applicants ARGUMEXT OF MR. DE VILLIERS 333
could be derived from the actual terms and provisions of those instru
ments. We have also indicated that the question then arises whether it
would be permissible at aUto go beyond the wording and the context of
the instruments and to attempt to establish the existence of an implied
term from material contained in the documents themselves. We referred,
in that regard, to the opinion of the honourable President of the Court in
the case of the Expenses of the United Nations. We also referred in our
Rejoinder to certain other authorities, which will be found in V, page 32
thereof. We indicated, Mr. President, that when one has a basic instru
ment ofthe nature of the Covenant of the League-the same question
arose later in regard to the Charter of the United Nations-the question
is whether it is permissible in such circumstances to look at what the
contracting parties who brought that instrument into effect initially,
might have thought amongst themselves without expressing it in words
without making it possible for successive generations to know what it
was they had in their minds.
We submit that there is strong authority in favour of the proposition
that one has to be very conservative-to put it at its lowest-in regard
to instruments of this nature about any excursion into extrinsic material,
in arder to arrive at intentions of parties, which are either not clearly
expressed, or clearly implicit, in what is set out in the instruments
concerned.
But, Mr. President, we do not wish to rest our contention purely on
that. lt does not embarrass us at ail to undertake an excursion into the
history and the surrounding circumstances pertaining to the establish
ment of the League of Nations and the mandates system. On the contrary,
such a review, in our submission, entirely confirms our contention and
militates very strongly against that of the Applicants. It shows, in our
submission conclusively, that there is no justification whatsoever for
saying that as a matter of necessary inference the parties had in mind
such a concept Ofinternational accountability, divorced from the actual
League machinery, as is contended for by the Applicants. On the contrary,
the indications of probability are very strong that there are at !east
certain of the interested parties who would not have been prepared to
agree to a vague concept of that nature.
May I draw attention first to the nature of this implication which is
sought to be drawn by the Applicants. They say that the obligation for
which they contend is one to submit to international supervision-an
obligation of international accountability. But when we analyse that and
the manner in which they seek to apply it in this case, Mr. President, it
will be quite obvious that they cannot contend that that was the sole
content of the obligation at the time when the League was in existence
and in operation. In the agreement it stood quite clearly on record that
a report was to be made to the Council of the League, toits satisfaction.
If we suppose now that sorne other political international organization
had also come into being at the time, consisting of other States not mem
bers of the League-there was a time when a considerable number of the
States of the world were not members of the League. Sorne had not
joined. Sorne had joined and then resigned from the League again-if we
suppose that sorne parallel organization came into existence while the
League was still in existence, then surely it could not have been contended
that the Respondent, having submitted to international supervision, as
is contended by the Applicants, would have become obliged to report and334 SOUTH WEST AFRJCA
account also to this other organization. with which it might have no
connection whatsoever. Surely that could not have been the contention.
Again, Mr. President, if we take the example of other international
organizations that did exist at the time-let us take the International
Labour Organisation, which existed side by side with the League.
Supervision by an organization of that kind could also be classified as
international supervision. If there were accountability to such an organi
zation, it would also be international accountability and yet, surely,
there could be no contention to the effect that there was any obligation
on the part of the Respondent to submit to supervision of that nature
because it could be dassified as international supervision.
Now, Mr. President, if one analyses this contention, it really carries in
it the germ, 1 may caU it, of a succession idea, although it is no longer
called that. It really carries with it this implication, that the parties
contemplated that there would be a general obligation of international
accountability, but that as long as the League was in existence that
obligation of accountability would be discharged by reporting and
accounting to the Council of the League; so that the importance of this
general concept of international accountability would arise only if and
when the League's existence should come to an end. That is the implica
tion, and the important implication, in this contention of the Applicants;
that is what they are in effect contending for, otherwise it makes no sense
and does not advance their case in the !east. ln other words, they have
to contend that one should read into the relevant instruments an implica
tion of something of this nature: that there is to be a regular report-an
annual report-to the Council of the League toits satisfaction, and that
if the League should be dissolved, the mandatory would continue to be
under an obligation of international accountabiHty. That would be one
way of putting it-1 am just suggesting varions ways in which it could be
phrased. Another possibility would be that the obligation was intended
to read somewhat as follows: the mandatory shall be obliged to submit
to international supervision, which obligation shall, during the lifetime of
the League, be discharged by rendering annual reports to the Council of
the League toits satisfaction. That concept of something which will have
to change on the dissolution of the League-something which will have
to take on a new form after the dissolution of the League-is a common
factor underlying any formulation of the kind which one will have to
put forward in order to assist the Applicants' contention. In other words,
there must be inherent in this contention a contemplation on the part of
the authors of the mandates system to provide for something after the
League has become dissolved; otherwise it brings them nowhere. And
that renders so extremely important, Mr. President, the fact that it is
common cause, as a matter of fact, that there was no contemplation on
the part of the authors of the system that the League would come to an
end, and that there was quite obviously no intent on their part to make
contractual arrangements or agreements about that eventuality. They
did provide in the mandates themselves for the possibility of modification
of the terms of the mandate, if and when that should be necessary, and
that is quite obviously, in our submission, where they left the matter.
That is a result which is in complete accord with the admitted fact that
there was no contemplation of what would happen after the dissolution of
the League.
Our argument in regard to this point, Mr. President, will be found in ARGUMENT OF MR. DE VILLIERS
335
the pleadings in the Counter-:Memorial, Il, at page 123, and also in the
Rejoinder, V, at page 34· The argument in the Rejoinder in this regard
relatesto the contention then advanced by the Applicants in their Reply
regarding the "organized internationalcommunity" theory. But, Mr.
President, in view of the fact that, as I have just demonstratedthis
contention regarding international accountability, being accountable
to international supervision, also brings the Applicants nowhithere
had not been any contemplation on the part of the authors of the system
extending beyond the lifetime of the League, the same arguments apply,
mt,tatis mutandisto this contention.
And that makes it so important to have regard to the submissions1
made yesterday afternoon, and emphasized again this morning, that there
is no basis in law for finding aractual obligation on the basis of what
parties did nothink~di not have in their minds-but would probably
have had in their minds if somebody had raised the matter and had said
to them "Let us discuss it''.
Mr. President, we contended further in our pleadings that even if this
factor were disregarded (the facthat nobody actually thought of what
would happen after the dissolution of the League) it would still have to be
borne in mind that certain of the mandatories were reluctant to accept
the extension of the mandates system to particular territories occupied
by them, and that they were infiuenced in their eventual acceptance of
the mandates system, amongst others, by the nature of the supervisory
machinery. \Ve pointedout in our pleadings that the supervisory machi
nery was carefully checked and balanced so asto render unlikely any
injurions, biased or unfair interference with màndatorygovernment,
and so as to contain a minimum of a political element and a maximum of
an independent expert approach. We referred there to the unanimity
rule applying in the case of the Council; we referred, Mr. President, to
the constitution of the Permanent Mandates Commission as a body of
experts and not as a political body, and one which exprcssly stated its
task,and its view of its task, to be one of co-operation and collaboration
rather than one of sitting in jugdment. The references one will find in the
Counter-Memorial, Il, pagesII9-I2Iand 123-124, and also in the Rejoin
der,V, at pages 34-35. We pointed out that sorne of the statements made
in the deliberations that eventually led to the compromise agreement,
made it perfectly clear that the composition of the supervisory organ was
in fact,nd as a practical consideration, a matter of importance to these
parties who were reluctant to havee system extended to their particular
casesat aU, and they included the then Prime Minister of the Union of
South Africa. Mr. President, we submitted that under those circum
stances, having regardto the attitude which the particular parties took
before the compromise agreement was arrived at~when they could
only with reluctance be persuaded to accept this compromise agreement
as far as itwent~the roeld surely be no warrant for saying that if
something more had been sought to be imposed upon them~something
which was in fact not discusse it~hif been suggested to them not
only that they should be willing to submit to supervision by the particular
League supervisory organs of whichhey knew how they were going to be
constituted,but also that they were to be subject to a vaguer concept of
internationalaccountability tereurouldybe no justification for
saying that they would have agreed tothat~th taet would have said
"But that is understood; it is something we did not trouble to express; SOUTH WEST AFRICA
it is tao clear". Surely, Mr. President, the reaction of at least sorne of
them would have been to say "But that is something we have not dis
cussed at ail-let us consider it''. And the probabilities are that they
would have said "No, we are not prepared to bind ourselves to a vague
concept of that kind-we shaH bind ourselves to what we know-to a
definite proposition. Here we have a League which is intended to exist
for an indefinite time.If its existence cornes to an end, then, and in that
event, we can talk aboutit again, and we can see whether we can make
a new agreement". That is sure!y the reaction which one could have
expected from the practical men who were to forge that agreement.
That was broadly the line of argument which we set out in our plead
ings, and I am setting it out as a background now to this review of the
facts at the time of the establishment of the system. I may just give
a further reference. The historical background to this submission is
set out in our Counter-Memorial, Il, at pages 9-14, and again at pages
II9-I21.
And now the Applicants in their oral argument have sought to join
issue with these contentions on our part, and they do soin two ways.
Firstly, Mr. President, they attempt to minimize the nature and the
importance of the elements of compromise in the Mandate. They go
so far asto say that the only significant element in the compromise was
that the open-door provision was not to be extended to the case of "C"
Mandates. That is how they try to whittle down the significance of the
compromise aspect of the whole situation.
Second!y, they contend that the authors of the mandates system were
primarily concerned with a general obligation of accountability, and that
the agreement as to the organs responsible for supervision was only an
incidental aspect-something which did not play any important role at
ali in the processes of coming to an agreement.
Those are the two important aspects which they emphasized, as we
understood them, in the argument of my learned friend, Mr. l\loore, and
those are the two aspects on which we shall concentrate, in turn, in the
further review which we now intend to undertake of the relevant historical
events.
I deal first with the first one~th importance or otherwise of the
compromise aspect of the arrangement. The Applicants in this regard
argued as follows in the verbatim record at page 139, supra.
They said:
"... there was a 'compromise' on the issue of annexation, but it is
also apparent, even obvious, that the solution finally accepted was
a 'compromise' only in so far as there was no provision for the 'open
door'in the 'C' Mandate provisions eventually adopted as Article 22,
paragraph 6, of the Covenant".
Now, Mr. President. as far as weare concerned, it is of course not disputed
that ali interested parties finally agreed that there would be no annexation
of the German colonies conquered or occupied by them, but the Applicants
now attempt to minimize the significance of the compromise by virtually
suggesting that that was the only important aspect of the agreement
that was reached.
The Applicants do not in their review of the events give any considera
tionat ail to what we submit to be of the utmost importance, and that is,
that the debates which led to the eventual agreement contain this ARGUMENT OF MR. DE VILLIERS 337
continuai element of discussion and difference of opinion on the very
nature of the relationship between the League and the Mandatory. It
amounted to this, that the adherers to the principle of non-annexation
the adherers to the princip le that the mandates system was to be extended
to all the colonies and possessions in question-initially had in their
minds a very absolute form of League control over the possessions in
question-an extreme iorm of League control-so that the Mandatory
was to play a completely subordinate part-the Mandatory was to be
there as a mere agency, which could even be chopped and changed at the
discretion and on the basis of decisions taken from time to time by this
controlling power, the League. That was the type of conception which
President Wilson and those who agreed with him had before this agree
ment was eventually reached.
And in terms of that conception, Mr. President, as we shall point out,
there was initially not even provision for reporting, the idea having been
that the League itself would be in such absolute control that that would
not be necessary. That might then well have become a mere incidental
matter, to be arranged administratively arising out of that very relation
ship.
It. also went so far, then, that expenses of manda tory administration
would have to be borne by the Members of the League, and not by the
Mandatories themselves-that was one of the natural corollaries. It was
when representatives of other States said: "No, but we have to be more
practical about this situation. We cannot put ideals of that nature into
practice and expect them to work", that the whole concept began to
change, and that it became necessary eventually to define the position in
terms whereof the Mandatories would be in primary control and the
relationship between them and the League one of supervision, not of
control, on the League's part. There was to be no idea ot chopping and
changing of Mandatories. ln other words the Mandatories were to have
security of tenure, if one might cali it that. Then the arrangement was
necessary to define how this supervision was going to work, and for the
purposes of that it was necessary to define the content of an obligation of
report and accountability. That is how, eventually, this whole agreement
came about.
As is well known, Mr. President, we admit that President Wilson
strongly advocated a policy of "no-annexations" (we refer to that in the
Counter-Memorial, Il, p. II, para. s), and that he sought to apply the
mandates system to aU conquered German colonies and possessions.
ln this aim he eventually succeeded, but at the same time, in order to
succeed in this aim, he had to compromise on sorne of the very vital
aspects of the whole scheme, in that he had to abandon quite a number
of his earlier ideas.
On the point that President Wilson initially had in mind that the
League would be vested with complete authority and control, reference
may be made to the following, Mr. President. Firstly, there was President
Wilson's Third Draft, also referred to as the Second Paris Draft, dated
20 January 1919.1 refer to ArticleII of the Supplementary Agreements
annexed to the draft Covenant; and that read, inter alia:
"Any authority, control, or administration which may be neces
sary in respect of these peoples or territories other than their own
self-determined and self-organized autonomy shall be the exclusive
function ofand shall be vested in the League of Nations and exercised SOUTH WEST AFRICA
or undertaken by or on behalf of it." (Vide D. H. :Miller,The Drafting
of the Covenant, Vol. II, pp. IOJ-I04.)
Now in the same document we find in Article III the following:
"The degree of authority, control, or administration to be exercisecl
by the Mandatory State or agency shall in each case be explictly
defined by the Executive Council in a special Act or Charter which
shall reserve to the League complete power of supervision . . .'' (Ibid.,
p. 104.)
The factor to which I wish to refer and which 1 omitted earlier was
that the Mandatory under this scheme of things did not need to be a
State at all. There could have been a specialized agency who could have
performed this function of being a Mandatory. I refer in regard to this
quotation also to Miller, at page 104.
Now, Mr. President, 1\Jr. Lloyd George, in wrüing of the events of
30 January 1919, when there was this eventual clash between President
\Vilson and the representatives of Australia and New Zealand, of which
wc speak in the pleadings, on the very question of mandates, Lloyd
George writes in that regard as follows:
"Feeling was at moments intense. President Wilson had his
own idea of Mandates. It was hardly a plan, for he had clearly not
worked it out and he had therefore not submitted to the Congress
any detailed project. But he vaguely indicated that what he had
in mind was an Administration ot the German Colonies by Manda
tories under the direct orders of the League." (David Lloyd George,
The Truth about the Peace Treaties, p. 541.)
This concept of complete control, Mr. President, naturally entailed
also that the League should have been responsible for admmistrative
expenses in mandated territories, and in this regard Lloyd George says
in the passage which follows immediately upon the previous one which
I have read:
"When asked who was to defray the cost of carrying out these
ordcrs, he (i.e., President Wilson) replied that the League would
bear the financial burden. He could not explain how the moncy was
to be raised. That essential detail had somehow escaped his consi
deration. Nevertheless he stuck to his original notion, and as my
proposai contemplated placing the financial responsibility on the
mandatory, he regarded my plan as an incomplete concessiOn to his
ideas.'' (Ibid., pp. 541-542.)
Mr. President, we could refer in this regard also to President Witson's
Third Draft, called the Second Paris Draft, of 20 January 1919. Article
III of the Supplementary Agreements anncxed to that draft says, inter
alia, the following:
"Any expense the Mandatory State or agency may be put to
in the exercise of its functions under the Mandate, so far as they
cannot be borne by the resources of the people or territory under
its charge upon a fair basis of assessment and charge, shall be borne
by the severa! signatory Powers, their several contributions bcing
assessed and determined by the Executive Council in proportion to
their several national budgets, unless the Mandatory State or
agency is willing itself to bear the excess costs; and in ali cases the
cxpenditures of the l\Iandatory Power or agency in the exercisc of ARGUMENT OF MR. DE VILLIERS
339
the Mandate shaH be subject to the audit and authorization of the
League." (D. H. Miller, The Drajting of the Covenant, VoL II, p. 104.)
Mr. President, it will be noted that this provision was omitted from
President Wilson's Fourth Drajt, also called the Third Paris Drajt, of 2
February 1919. I refer to Miller, Volume II, pages 152-153. In the course
of coming to the compromise agreement, this idea had to be dropped.
The other important aspect of President Wilson's original concept of
ail control being vested in the League was that it was not a matter of
any great moment whether any particular country would be appointed
as a Mandatory. His idea was that the Mandatory could be something
in the nature of an "organized agency". As I have pointed out (the ex
pression used in this quotation is from his Third Drajt, or Second Paris
Drajt, of 20 January 1919}, it could be an organized agency. It need
not necessarily be a State. This idea he also eventually dropped. It no
longer appeared in the Fourth Draft of 2 February 1919 (that is also
referred to by Miller in his Volume II, pp. 145-154). The Fourth Draft
provided that the tutelage of those peoples who could not yet stand by
themselves "should be entrusted to advanced nations who by reason
of their resources, their experience or their geographical position, can
best undertake this responsibility". That was the eventual notion. We
find that also in Miller, Volume II, page 152.
Another incident of President Wilson's original concept, Mr. President,
of an all-powerful League, was that Mandatories could freely, at the
discretion of the League, be removed or substituted. The references are
para~aph I,sII and III of his Second Drajt, or First Paris Draft. We
find 1tin Miller, Volume IJ, pages 8]-Sg, and again, in paragraphs I, II
and III of this Third Draft, or Second Paris Draft (Miller, VoL Il, pp.
103-104). This question of cancellation of mandates by the League was
expressly discussed in January 1919. lt appears from "The Intimate
Papers of Colonel House" (Seymour, Vol. IV. p. 306) that on 27January,
Lord Robert Cecil of Great Britain indicated to Colonel House that
Australia and South Africa would consent to being Mandatories of South
West Africa and the Pacifie Islands "providing there was no question
of cancelling the :1\landate"-again, Mr. President, indicating how im
portant that element became. Colonel House, putting the American
viewpoint, is reportedto have argued ''that the League of Nations must
reserve the right to cancel the Mandate in cases of gross mismanagement",
but that the President-that is President Wilson-"would agree that
the peoples concerned should be able at any time to vote themselves
part of Australia and South Africa, thereby cancelling the Mandate".
But, Mr. President, this concept of making express provision for
cancellation of a Mandate on the grounds of mismanagement, was, of
course, not maintained, nor was the idea that the League could "at any
timc release" from guardianship a people or a territory which it thought
capable of taking charge of its own affairs. That initial idea is set forth
in paragraph III, being part of the Supplem~nt Aareements annexed
to the President's draft of 20 January rgrg.
Now, l\h. President, it remains to refer to certain aspects of the accep
tance by ail concerned of the proposai which eventually divided the
mandated territories into "A", "B" and "C" Mandates.
On 24 January 1919, Mr. Lloyd George made it clear that South
Africa, Australia, and New Zealand laid daim to the German territories340 SOUTH WEST AFRICA
which had been conquered by them. (That we find in the Foreign Rela,
tions of the United Srates, Vol. III, pp. 718-720.) And although he stated
that Great Britain ''saw no objection to the manda tory system" (that
is at p. 719), he summed up his remarks by saying the following (that
is, llfr. Lloyd George): ·
'•... he womd like the Conference to treat the territories enumerated
as part of the Dominions which had captured them rather than as
areas to be administered under the control of an organisation estab
lished in Europe which might find it diffi.cultto contribute even the
smallest fmancial assistance to their administration."
That is at page 720 of the work to which I have referred.
Then we find, Mr. President, that the Dominion Ministers personally
came and stated their daims to the territories and the reasons why
they wished to annex them. (Fmeign Relations of ~he United States,
Vol. III, Mr. Hughes, Australia, pp. 720-722; General Smuts, South
Africa, pp. 722-723; Mr. Massey, New Zealand, pp. 724-727.) These
daims were repeated on subsequent days. (Ibid., South Africa, pp. 743-
745, 27 January; Australia, pp. 745-747, 27 January; and New Zealand,
p. 751, 28 January.) Discussions then reached a stage of near breaking
point, as can be seen in the same work at page 763, where President
Wilson said "... it looked as if their roads diverged".
That, Mr. President, was the basis upon which further discussion took
place-in which the eventual compromise agreement was arrived at
but 1 emphasize that, at that stage, it was only a provisional agreement
-provisional in various senses which 1 shaH explain, and which emerge
very c1ear1yfrom the record.
First, it is clear from this background, and from the relevant provi
sions of the Covenant as finally determined, that the Applicants grossly
over-simplify the position when they argue that the solution finally
accepted was a compromise only in so far as there was no provision for
the open door in the C Mandate provisions.
The important question is not simply one of these being a compromise
on the narrow issue of annexation. It was a compromise on the relation
ship between the Mandatories and the League, and in this regard, we
submit, the history shows, as we have sketched it, that as time went on
President Wilson changed ideas he had previously held in regard to the
powers to be assigned to the League vis-à-vis mandate States and ;\lan
datories.
There is ample historical proof therefore, Mr. President, that our
summing up of this position, in regard to the compromise, in our Coun
ter-Memorial is perfectly correct:
"... President Wilson had to abandon certain of the extreme as
pects of his proposa)<; concerning League supremacy and control
and the consequent payment of expenses of Mandate administration
by League Members. AU Mandatories were to be States, not 'orga
mzed agencies'. The Mandates were to be allocated by the Principal
Allied and Associated Powers (not the League), and at any rate
in the case of C Mandates the allocation 'would have.to be' to the
adjacent claimant States." (Counter·Memorial, II, pp. I3-I4·)
The Court will recall that that is the expression which occurred in
Mr. Lloyd George's statement of 30 January 1919, when he laid before ARGUME!'<T OF MR. DE VILLIERS 34I
the Conference this compromise formula on which he said the Dominions
were prepared to agree.
The relationship between the League and the Mandatories was, in
each case, regulated by a mandate instrument, the tenns of which were
assented to by the Mandatory and would normally require its consent
for alteration. Ail this was very far removed from the envisaged free
League discretion to appoint and change Mandatories. ln the case of
"C" Mandates, the Mandatories were to have powers to administcr the
terri tories as integral portions of their own, and there would be no objec
tion to eventual amalgamatiOn which could naturally result from such
administration, if agreed to by the inhabitants. Those were the important
elements of this compromise, showing this middle-point, if 1 might call
it that, where the extreme ideas eventually met.
I turn now, Mr. President, to the other reason why we undertake this
historical survey, and that is in regard to the Applicants' contention:
"... it is apparent that the primary concern of the founders of
the mandates system was the obligation of international accoun
tability, and not the details which would spell out the manner in
which the obligations would be carried out". (P. 144, supra.)
In developing this point, the Applicants first referred to the pre
Conference evaluation of the mandates system which, in their v1ew,
gave paramount importance to the idea of international supervision,
and for this purpose quoted extracts from various sources containing
phrases such as "in trust for civilization" and "as trustees for all man
kind". (Pp. 142-143, supra.)
These phrases were quoted, Mr. President, as if they were applicable
to the concept of a mandates system.
Mr. President, we do not deny that in the initial discussions before
the Conference, perhaps even in the first stages of the Conference, con
cerning this whole idea of a mandates system and the idea of international
control or supervision, there would have been very little discussion on
questions of detail as to the manner in which supervision or control,
and so forth, was to be exercised. That is the way in which any discussion
originates. There is an idea, and the principles of the idea are discussed
first; then one proceeds from the principles to a question of detail with
a view to putting those ideas and those principles into effect.
We must point out, Mr. President, that most of the sources quoted
by the Applicants do not bear out their contention that in the pre
Conference era there was unanimous agreement on the desirability and
necessity of international supervision of mandated areas, with the accent
on "mandated areas". So, for instance, they create, unfortunately,. a
misleading impression when they refer to P. H. Kerr, of the Round
Table, stating "that the Mandatory Power 'ought to govern the depen
dency as trustees for ali mankind' ". (P. 143, supra.)
Mr. President, even a superficial perusal of this source cited by the
Applicants, Introduction to the Study of International Relations (rg16},
page 179, shows that Mr. Kerr did not have in mind a mandates system
which would create sorne forrn of trust relationship between a manda
tory and an international organization. Mr. Kerr was, in fact, dealing
in general with the problems which arise out of the contact l:-etween
advanced and backward peoples. The first of three general prfnciples
advocated by him was that so long as there are people seriously below SOUTH WEST AFRIC.-\
342
the level of most civilized nations, commercial intercourse was bound
to lead to evils which can only be ended by a more civilized people as
suming charge of the government of the more backward race. \Vhen
this has been done "... the ruling people ought to govern the depen
dency as trustees for alimankind ... ".
It should be noted that the author used the words "the ruling people",
and not "the Mandatory Power", as suggested by the Applicants.
lt is clear, therefore, that Mr. Kerr had in mind a general moral obli·
gation resti onn~all colonial powers, and not a legal obligation owed
by mandatones to an international organ. He was speaking in general
of the concept which should govern relationships between a colonial
power and a dependency governed by it. This could include a mandatory
under the new system which was already under discussion, but it was
not something which related specifically to mandatory powers in the
mandates system as is represented by the Applicants.
The same applies to the passage from the New Statesman quoted at
page 142, supra. Here again there was a concept of territories "held in
trust for civilization", and as quoted, it was suggested that it related to
a mandates system. In tact, Mr. President, if one looks at the extract
from the New Statesman and considers the context in which this expres
sion applied, it becomes quite clear that what was referred to was again
the general relationship of colonial powers to territories administered
by them. There was a suggestion by the learned author that a distinc
tion was to be drawn between countries in which white men could settle,
and countries in which they could not. He suggested as a general prin
ciple that while temperate colonies which white men were living in and
developing might properly be governed in the interests of the white
inhabitants, tropical colonies ought to be governed primarily in the
interests of their black inhabitants, and not in the interests of the Euro
pean trader.
The New Statesman continues: "The ideal solution of the whole prob
Jem, we suggest, would be the deliberate abolition of all international
fences in the tropics. All Central Africa from the boundaries of Morocco
and Egypt in the north, to those of Rhodesia in the south, should be
neutralized and administered by an international commission for the
benefit primarily of the races which alone can live there and secondarily
ofthe traders from all countries on equal terms. But ideal solutions are
not always practicable." The author went on to describe what would be
useful beginnings in this regard.hat is the context in which this expres
sion occurred which the Applicants quoted, namely-
"If the Allies determine at the end of the war to retain control
of the German colonies they might and ought to give a solemn under
taking to hold those territories in trust for civilization, to treat
the interests of the natives therein as paramount ... "(P. 142, supra.)
It was again, Mr. President, a general discussion on the principles
which ought to govern the relationship between colonial and dependent
peoples.
Now, Mr. President, as we have said, it may well be that in the pre
conference era writers and statesmen devoted more attention to the
abstract idea of international supervision than to the actual manner
in which such supervision would be carried out. 1t is really inconceivable
that it could have been otherwise. The framework of an idea in point ARGUME~T OF !>IR. DE VILLIERS 343
oftime always precedes the details ot the framework, in much the same
way as the idea conceived by a painter precedes the complete painting.
But that does not mean that, when the details are evcntually filled in,
they are unimportant. On the contrary, if this idea can only take effect
by way of agreement between interested parties with conflicts of interest
to a certain extent-confiicts of ideas, conflicts of objectives-then the
exact machinery and details eventually agreed upon in arder to put the
ideas into practice to the extent agreed upon-surely become of the
utmost importance.
What we do dispute, therefore, is the Applicants' generalization that
the idea of international supervision remains superior to the details of
the mandate system regarding the organs of the League of Nations to
which mandatories would be accountable. And our contention in this
regard is, in our submission, Mr. President, borne out entirely by refer
ence to the discussions at the Peace Conference.
The Applicants allege:
"Perhaps the most succinct statement of the nature of the obli
gation of international accountability was made by President
\Vilson himself. To use his words, 'the administration will be so
much in the view of the world that unfair processes could not be
successfully attempted'." (P. 142, supra.)
As we have already pointed out, Mr. President, it should be observed
that President Wilson came to the Peace Conference without having
developed a practical outline of the mandate system and that this very
fact gave rise to much misunderstanding and heated discussion.
I quete again from Mr. Lloyd Georg~fro mnother passage from
The Truth about the Peace Treaties, 1938, Volume I, page 27r. He stated
there:
"He (President Wilson) was definite and clear as ta the objec
tives he desired to reach ... but ... he had never developed for
himself the practical outlines of any of the ideas which inspired
his speeches. He had not, for instance, taken any serious trouble
with the formulation of his detailed and workable scheme for a
League of Nations." ·
Now at the Peace Conference, Mr. President, aftcr President Wilson
had outlined his ideas concerning the League of Nations-these broad,
general ideas of a League of Nations and of a mandates system-M.
Simon of France said that France favoured annexation of the German
Colonies, and then Mr. Balfour of England, at a meeting of the Council
of Tenon 28 January rgrg, expressed misgivings about the whole idea
misgivings which were shared by most of the delegates. 1 quote here
from Foreign Relations of the United Stat6s, Volume Ill, pages 763-764:
"Mr. Balfour enquired whether it was not true that whilst a
good deal of thought had been given to the League of Nations, very
little thought had been given to the position of a Mandatory Power
... He ... was strongly in favour of the principle. But he was con
scions that it had not been worked out. He knew of no paper or
speech in which the practical difficulties which they had to face
had been worked out in detail ...
No conclusion had becn reached and no authoritative statement
had been made rcgarding another point, namely should the tenure SOUTH WEST AFRICA
344
of the mandatory be made temporarily or not? If the tenure were
merely temporary diffi.culties would arise and there would be per·
petual intrigues and agitation."
At the same meeting, Mr. President, M. Clemenceau, Prime Minister
of France, also pointed to the lack of practical detail and here 1 quete
from the same source at page 768:
"But it appeared that they bad now gone beyond that limit when
they proposed to create a League of Nations with governmental
functions to interfere in internai affairs, with trustees in various
places sending reports to ...hedid not know whom. Throughout the
world, even in Europe, ... a control would be set up. President
WjJson himseJf bad said so, and, as a result, appeals would be heard
from ali parts of the world. Who would deal with those appeals? lt
bad been said that an International Legislature and sorne sort of
executive power ... would have to be created. The idea of an un
known mandatory acting through an undetermined tribunal gave
hirn sorne anxiety."
Mr. President, that was the context in which people spoke of this
whole concept of relationship between a mandatory and the League.
Was the League to be in control or was the position of the League, in
relationship to the mandatory, to be one of mere supervision only-the
main responsibility resting with the mandatory. And the other impor
tant point is that the practical men were asking for details. They said:
"Now we want to know what is this system through which we are going
to be contro!led." The idea of an unknown mandatory, acting through
an undetermined tribunal, gave them sorne anxiety.
So, Mr. President, we come to 30 January rgrg, the important date
on which Mr. Lloyd George outlined the proposais contained in the
document-the so-called Hankey-Latham draft-which had been draft
ed by officiais of Great Britain and the Dominions. This document was
entitled Draft Resolutions in reference to Mandatories and one finds it
at pages 785-786 of Volume III of the Foreign Relations of the United
States. It is important because, with very few changes, it contains the
eventual Article 22 of the Covenant. Mr. Lloyd George is reported to
have said the following. (We quote briefty from it, Mr. President
certain excerpts-in our pleadings. It may, perhaps, be worth while
to give the full statement in its context.)
"That document did not represent the real views of the Colonies;
but it bad been accepted by them as an attempt at a compromise.
Great Britain had deliberately decided to accept the principle of a
manda tory; but that decision bad not been wholly accepted by the
Dominions. The Dominions, however, were prepared to accept the
conclusions reached in the document as a compromise, because they
fully realized that there could be no greater catastrophe than for the
delegates to separate without having come to a definite decision. It
bad been decided to accept the doctrine of a mandatory for ali
conquests in the late Turkish Empire and in the German Colonies.
But three classes of mandates would have to be recognized, namely:
Firstly: Mandates applicable to countries where the population
was civilized but not yet organized-where a century might ela~se
before the people could be properly organized. For example, Arab1a. ARGUMENT OF MR. DE VILLIERS 345
ln such cases it would be impossible to give full self-government
and at the same time prevent the various tribes or units from
fighting each other. It was obvious that the system to be applied
to these terri toriesst be different from that which would have to
be applied to cannibal colonies, where people were eating each other.
Secondly: Mandates applicable to tropical Colonies situated a
long way from the country of the possible mandatory. In other
words, terri tories which did not forman integral part of any particu
lar manda tory country. For example, New Guinea. In these Colonies
the full principle of a mandatory would be applied, including the
'open door'.
Tht'rdly: Mandates applicable to countries which formed almost
a part of the organization of an adjoining power, who would have
to be appointed the mandatory."
The third one, the third class, was the cause of particular difficulty
before this compromise agreement could be arrived at, and it of course
included the case of South West Africa. It included also the case of the
conquests of Australia and New Zealand, and that is why it becomes
very pertinent to refer now to the attitude taken up immediately after
wards by Mr. Hughes on behalf of Australia.
After Mr. Hughes had pointed out that his Government had asked for
full details concerning the mandatory principle, and that he was there
fore compelled to withhold his assent to the proposais until his Govern
ment had communicated its decision, President Wilson also showed an
awareness of the importance of the practical details necessary to give
concrete content to the mandatory ideal. 1 quote, Mr. President, from
the same source (Foreign Relations of the United States, VoL Ill, pp.
;88-789), President Wilson speaking:
"To return to the immediate subject, could they take a dean sheet
and say that Australia, for example, would accepta mandate about
New Guinea? How would that manda te be exercised? What would it
involve? No one could give an answer to Australia ... He surmised
that the character of the mandate would be left in the hands of an
executive of the League of Nations, consisting of the Great Powers
with a minority representation of the Smaller Powers. He imagined,
also, that no action could be taken by that Council in the face of
three negative votes. Should that system be adopted it would be
impossible for any harmful conditions to be imposed upon the
manda tory State."
Already, Mr. President, the significance of this aspect of the situation
was stressed in these very deliberations in pursuance of the point raised
by Mr. Hughes. 1 quote further from President Wilson:
"But that arrangement had not yet been adopted; no agreement
had as yet been reached. He had been accused of being a hopeless
Idealist,but as a matter of fact he never accepted an ideal until he
could see its practical application. The practical application was
always the more difficult. Mandatories might work unsatisfactorily
under one programme whilst they might work weil under another.
Therefore no one should accept the scheme unless it was shown how
it was going to work ... Further, it would be necessary to define the
methods of self-expression of the ward or people under tutelage. SOUTH \VEST AFRICA
There must be a responsible body which would be in a position to
hear that self-expression and not be carried away by its sympathies."
Here, Mr. President, the emphasis is on the fact that this could not be
a definite, a final, arrangement, until people knew how the whole scheme
was going to work. Mr. Hughes, later in the meeting, expressed a similar
sentiment. I quote from the same source at page 793:
"It was proposed really to govern the fate of people by declaring
that a certain principle should apply, but to what extent that
principle should apply, or by whom that principle should be applied,
or when it should be applied, no one knew. For that reason President
Wilson had pointed out that the acceptance of Mr. Lloyd George's
resolutions would not settle anything until the League of Nations
had been created and clothed with authority and with certain
powers, duties and functions ... Now he would have to tell the
people of Australia how the whole matter was to be settled, and they
would ask, how? His reply would be that the mandatory principle
was to apply but he did not know how except that the arrangements
would be such that the scheme would fit like a glove to the band.
Having lived ail his life in Australia and knowing the Australian
temperament, he thought it would be impossible to expect them to
accept a principle the nature of which was not known. A definite
decision could only be expressed when they knew what it ail meant."
It seems, therefore, Mr. President, in our submission, perfectly clear,
firstly,that there was a general recognition of the fact that no power
could be asked to accept undefined mandatory obligations towards an
undefined international organ. At the same time, there was already a
contemplation, and that appears to have been generally assumed, that
the supervision would be exercised by an executive of the proposed
League of Nations, which would consist mostly of the great powers. I
mention that point because in reading the Hankey-Latham draft, one
will find that the clause relating to a report speaks of a report to the
League. It does not yet say specifically a report to the Council.
But it is significant, Mr. President, in that regard, that not only
President Wilson referred in the passage from which 1 have read to the
idea that the controlling or supervising authority should be the executive,
on which three negative votes, as he put it, would be sufficient to make it
impossible for a resolution to be adopted, and that that executive would
consist of the great powers with sorne minority representation of smaller
powers, but that the matter was also referred to in the speech by the
South African Prime Minister, General Botha. This is of particular
importance in this regard. I will come to that a little later. First I wish
to refer to a statement by President Wilson on 28 January 1919, in
answer to a question by Sir Robert Borden. The question was: "whether
the nomination of a mandatory need be postponed until the League of
Nations was constituted. Under the scheme for the creation of a League
of Nations, he understood that the five Great Powers would form a
Council controlling the work of the League. Therefore the difference
between making the decision now or leaving it to the Council of the
League of Nations was not great. He \vould, therefore, ask whether
President Wilson would take that suggestion into consideration."
(Foreign Relations of the United States, VoL III, pp. 766-767.)
President Wilson replied to this question in the affirmative. He said ARGUMENT OF MR. DE VILLIERS 347
that he would take that suggestion into consideration-thatthe difference
between making a decision now and leaving it to the Council of the League
was not great.
At the council meeting of 30 January, Mr. Hughes is reported to have
enquired whether they should await the acceptance of the League of
Nations by the conference and by the world. Was not the de facto League
of Nations already in existencein that room? He suggested that they, as
a League of Nations, should act as the executive of the future League of
Nations and settle the various problems which awaited settlement.
Then, Mr. President, President Wilson's remarks at that very same
meeting (which I quoted earlier), will be recalled, and in that same
context came the speech of the South African Prime Minister, General
Botha, which we recorded.
Mr. President,at the adjournment I was dealing with this factor that,
although at the stage of the compromise agreement, or arrangement, of
30 January rgrg-at the Paris Peace Conference, no specifie details were
worked out in regard to supervision of the respective manda tory adminis
trations, there was,quite obviously, general acceptance of the idea that
the responsible organ in the League would be an executive and that
executive would consist largely of the Great Powers, with a certain
minority representation from the smaller powers. 1 have just read
to the Court certain statements~spe mecdheby various delegates
-which all show that contemplation. I was referring to that fact at
the adjournment, that in an extract from a speech of the same date by
the South African Prime Minister, General Louis Botha, which extract
we cite in our Counter-Memorial, II, page ng, he also expressed his
understanding that, if the idea fructified, the League of Nations would
consist mostly ofthe same people present there that day, who understood
the position and who would not make it impossible for any mandatory
to govern the country.
The people there that day were, of course, representatives on the
Council of Ten-really representative of the five Great Powers, together
with the representatives of the Dominions, were sorne of the prospective
mandatories. ·
The other factor that I want to stress about the situation as it had
emerged on 30 January rgrg in this: that there was, at that stage, no final
agreement. Everybody had regard particularly to the comments made
by Mr. Hughes of Australia and by President Wilson to the effect that it
was important for ail to know what the details of this scheme were-how
was it going to work. Therefore, nobody could be expected to agree
finally before knowing those important details. The details related
particularly tothe exact manner in which the League would be consti
tuted-how its organs would function-because those things bad, as yet,
not been settled.
That this was the understanding emerges very clearly from various
passages inthe record. Mr. Lloyd George first of all expressed the hope-
"... that his colleagues would provisionally adopt the resolutions
he had submitted, subject to such reconsideration as might be
required when the complete scheme of the League of Nations was
formulated". (Miller, The Drajting of theCovenant, Vol. II, p. rgg.)
Those were the exact words of Mr. Lloyd George in introducing this
compromise formula and laying it before the meeting of the Council. SOUTH WEST AFRICA
After him, the one delegate after the other expressed his understanding
that the agreement reached was provisional.
President \Vilson said that he was-
"... willing to accept Mr. Lloyd George's proposais, subject to
reconsideration when the full scheme of the League of Nations was
drawn up". (Ibid.)
Baron Makino of Japan "expressed his satisfaction that a provisional
agreement had been reached on the question of Mandatories". (Ibid.,
p. 20!.)
Sir Robert Borden of Canada "expressed his pleasure at the fact that
an agreement, if only provisional, had been reached". (Ibid., p. 202.)
That was the situation as it emerged in general, at that particular stage.
It was not a question of the parties having agreed to a general concept
of international accountability, without being interested in what the
details of the scheme were or how they were going to work.
1 wish to turn, Mr. President, more specifically to the Respondent's
part in this whole arrangement-how it affected the Respondent's
position-what the Respondent's position was before and after this
agreement. The Respondent's position was generally considered, by
everybody concerned-to be something special-something extra
ordinary-something unique-that is, so far as the South West Africa
question was concemed at that particular stage. I do not think it is an
exaggeration to say that there was general agreement beforehand that
the South West Africa case was so special that, although the mandates
system might extend to ali the other colonies, it would not extend to
South West Africa. One knows, of course, that the initial proposai by
General Smuts, for instance, was that ail theGermanAfricanpossessions,
should be excluded-and also those in the Pacifie Islands. Other ideas
prevailed eventually.
1wish to refer to sorne of the views expressed, particularly in so far as
South West Africa was concerned, where even the case of South West
Africa was distinguished from all the others.
At page 138, supra, of the verbatim record, the Applicants quote a
passage from Mr. Lloyd George's The Truth About the Peace Treaties,
Volume I (1938), page 6, in order to show that prior to the Peace Confer
ence the Imperial \Var Cabinet accepted the principle that, as part of the
general mandates scheme applying to enemy colonies, there would be a
right of appeal from the manda tory power to the League of Nations on the
part of anyone who considered himself ill-treated or claimed that the
conditions set down by the League of Nations were not being fulfilled.
That is the purpose of the Applicants' reference to that particular
passage in the book of Mr. Lloyd George.
Mr. President, the author makes it perfectly clear that the ideas
expressed at that meeting were not intended to apply to South \Vest
Africa, orto certain islands in the Pacifie. 1quote from page 123:
"The outstanding feature of the conversations that took place
was the complete unanimity with which the Imperial War Cabinet
accepted the doctrine of the Mandate in respect of enemy possession,
except in South West Africa and the islands conquered by Australia
and New Zealand." (George, The Truth About the Peace Treaties,
Vol. I (1938), p. 123.)
That was the exception made at that particular time. ARGUMENT OF MR. DE VILLIERS 349
So in concepts then expressed as to what the mandatory system was
to be-the same applies to General Smuts' book-where they were
thinking in terms of certain types of territories, or possessions, or peoples,
that would come under the mandates system. Then surely the ideas
which they had in mind for a system of that kind, which was to be of
Iimited application to those peoples, could not literally just be trans
planted to a more expanded mandates system which came about later
and in which there were included territories, possessions and peoples
who, according to those initial ideas, would have been excluded.
The Applicants refer also to the December rg18 issue of the Round
Table in which it was proposed that supervision and ultimate control of
mandated areas be placed in the bands of the League-that is in the
verbatim record at page 143, supra. But, Mr. President, at page 28 of the
same article of the Round Table it was made clear that the general
principles proposed in the article were not intended to apply to South
West Africa.
"In the light of these principles let us now consider in detail the
disposai of the derelict territories. They do not of course apply to
Alsace-Lorraine ... Nor do they apply to German South West
Africa. There Germany established a peace by creating a solitude.
The climate of this vacant territory admits of white colonisation.
From its situation it must forman integral part of the South African
Union ... "
That was the article in the R&und Table, December rgr8, referred toby
my learned friend.
Prior to the Peace Conference Mr. G. L. Beer, the chief of the colonial
division of the American Delegation to the Conference, prepared a well
known paper in which he detailed proposais relating to enemy colonies
and territories. He advocated the application of the mandates system to
such colonies, but in respect of South West Africa he concluded as
follows: "For various valid reasons, the manda tory principle is inadvis
able and really inapplicable in this case." 1 refer to his work African
Questions at the Paris Peace Conference (1923), at page 443· The Court
will recall the earlier position-the attitude taken by General Smuts in
his publication dealt with in the pleading, where he also thought that all
these territoriesin Central and Southern Africa and in the Pacifie were
to be excluded.
Mr. President, President Wilson himself was prepared to accept that
South West Africa was in a unique position, and that the mandatory
principles advocated by him should not apply to the Territory-1 am
talking now about his attitude before the Conference. When the President
met Mr. Lloyd George in England shortly before the Peace Conference,
Mr. Lloyd George put forward the daims of South Africa, Australia and
New Zealand to annexation of the German colonies conquered by them.
President Wilson was then willing to accede to South Africa's daim, but
he was of the opinion that the German islands in the South Pacifie were
on a different footing. This appears from l\Ir. Lloyd George's The Truth
About the Peace Treaties (1938), Volume 1, page 191:
"In the other category he [that is, Mr. Lloyd George] had put
German South- West Africa as the strongest case, painting out that it
would be quite impossible to separa te from the South African Union350 SOUTH WEST AFRJCA
what was essentially part of the same country. The President did
not seem prepared to contest that contention, but of his own accord
retorted that the position of Australia with regard to the Pacifie
colonies was not quite the same."
That was the attitude indicated before the Peace Conference by the
President.
At the Peace Conference the three dominions, as we know, outlined
their cases for annexations of the colonies concerned, and none of the
delegates except President Wilson voiced any opposition to this idea.
Mr. Lloyd George expresses the position as follows in the same work at
page SIS:
"As the time approached for deciding whether the Mandate
principle should be incorporated in the Treaty, and ifso in what
form, the opposition to the whole idea assumed formidable dimen
sions ... 1 think it is fair to state that President Wilson and I were
alone in supporting the principle of vesting the German Colonies in
the League of Nations as a trustee, with Mandatories nominated by
the League to undertake the duties of administration."
And even Mr. Lloyd George, as we know, was of the opinion at that stage
that the mandate principle should not apply to the colonies in possession
of the three dominions.
It is, Mr. President, fair to conclude, in our suhmission (it is of course
a measure of speculation now, ex post facto)that if the daim of the other
two dominions had not been made at the same time, and if, as a result,
certain other questions had not then been voiced by other States, it
seems quite likely that the arrangement in regard to South West Africa,
as proposed before, cou id have gone through without objection. 1 am just
speculating on that possibility for what it is worth, but we emphasize the
particular position in which South Africa found itself at that time, prior
to agreeing to this compromise. When the question was raised at the
Conference, after the three dominions had stated their case, we find that
M. Simon of France also spoke in favour of the principle of annexation
in respect of certain possessions then occupied by France. \Ve find that in
Foreign Relations,Volume III,pages 758-763.
And it was in those circumstances, Mr. President, that a complete
breakdown threatened, when the one after the other of those of the repre
sentatives present at that particular meeting of the Council of Ten
when one after the other spoke in favour of annexation-that was when
the position reached the point of near breakdown, or near explosion.
There then came this violent reaction from the side of the President, and
it was with a view to preventing a complete breakdown that there were
further discussions, quite obviously behind the scenes, which led to this
compromise formula eventually introduced by Mr. Lloyd George as the
Hankey-Latham draft.
I am emphasizing that from Respondent's point of view there was
probably Jessreason than from the point of view of anybody else to agree
to this compromise-ta agree to the inclusion of South \Vest Africa in
the mandates· system, because of its special position. If South Africa, in
other words, had wanted to hold out on this particular question, em
phasizing the distinctiqn between its case and the other cases, then it
could possibly have won the day. But, Mr. President, there were of
course reasons which operated in the other direction, why South Africa ARGUMENO TFMR,DEVILLIERS 35I
was prepared to be co-operative, but on its terms, in reaching an agree
ment and in not threatening a complete breakdown of the whole Con
ference. The terms were of great importance to South Africa-the whole
formula of being able to administer this Territory as an integral portion
of South Africa's own terri tory; and in regard to the question of account
ability, the factor that the accountability would be to the executive of the
League, consisting largely of the great Powers with minority representa
tion of the smaller powers-that in itself also played a very important
part.
Another factor that played a very important part was the graduai
change which this whole mandate idea had undergone in course of time,
from the extreme ideas of League control, where the League could do
everything and the mandatory's position was just that of a kind of a tool
in this whole situation. The mandatory could be chosen or abandoned
by the League at will, as it were. That whole idea had been changed now
to one in which very much more responsibility was being placed on the
mandatory powers themselves and the League''>role would be one of a
more indirect supervisory nature.
The fact that that is so, Mr. President, is emphasized by a point which
I did not mention before but to which I could give the Court references
now, and that is that in President Wilson's draft of20January, to which
1 referred before, there was no provision for reporting to the League on
the part of a mandatory. The reason for that was-if one reads that
draft as a whole-the whole idea of the draft was-that the league itself
would be in complete control. The text of the mandates, as proposed at
that stage in the draft, is to be found in MillerDrafting of theCovettant,
Volume II, at pages I03-io4.
The first place in which we find, in the President's drafts, any reference
to reporting, is in the draft of2 February rgrg. That we find in Miller,
Volume II, page 152, in paragraph 3, and that was at the time when it
had already been decided that the League would not be vested with com
plete control. The whole idea had changed and the League's function
would now be a more indirect one of supervision. Now it became impor
tant to formulate exactly what form that supervision would take and
through which medium-through what machinery, it would be exercised.
A major factor in this transformation was the question of the whole
approach to the function of the League vis-à-vis the manda tory. ln Book
II of the Counter-.Memorial, Il, at page rrg, we quote a statement by
Mr. Lloyd George, made on 28 January rgrg. (This was in the course of
these discussions as to what ex:actly this relationship was going to be.)
"MR. LLOYDGEORGEsaid that he agreed with M. Clemenceau
that if the League of Natians were made an executive for purposes
of governing, and charged with functions which it would be unable
to perform, it would be destroyed from the beginning. But he had
not so interpreted the manda tory principle when he had accepted it.
PRESIDENTWILSONsaid he too had not so interpreted it.
MR.LLOYDGEORGE,continuing, said that he regarded the system
merely as a general trusteeship upon defined conditions. Only when
those conditions were scandalously abused would the League of
Nations have the right to interfere and to call on the mandatory for
an explanation. For instance, should a mandatory allow foui liquor
to swarnp the territories entrusted toit, the League of Nations would
have the right to insist on a remedy of the abuse."352 SOUTH WEST AFRICA
All that is part of the background-part of this gradually changing
picture-until we come to the 30th, when this provisional agreement
was entered into. And it is, Mr. President, against this background that
we have to view the speech made by General Louis Botha on the 30th,
from which I read a part to the Court before. Perhaps I should again
refer to the extract in full, in its context. We get that also in the Counter·
Memorial, II, at page II9:
"Personally he felt very strongly about the question of German
South-West Africa. He thought that it differed entirely from any
question that they had to decide in this conference, but he would
be prepared to say that he was a supporter of the document handed
in that morning, because he knew that, if the idea fructified, the League
of Nations would consist mostly of the same people who were present
there that day, who understocd the position and who would not make
it impossible for any mandatory to govern the country. That was why
he said he would accept it."
Now, Mr. President, in that context, and against this background,
how can the Applicants possibly say that the question of the exact na
ture of the supervisory machinery-its composition, its manner of func·
tioning-was a matter of mere incident, was not a matter of importance
in coming to the agreement at ail?
Here, from the mouth of one of the most vitally interested parties,
the Prime Minister of the Respondent in this case, we have the evidence
of what a tremendously important-what a crucial-role he played in
bringing about agreement in so far as this compromise was coricerned.
Mr. President, the Applicants are not consistent either in their Jine of
reasoning. They argue, on the one hand, that inasmuch as in the begin
ning of these negotiations which eventually led to the agreements (the
pre-conference era and the earlier stages of the conference) there was
discussion of a general principle of accountability or international super
vision or control-for that reason the agreements eventually arrived at
in regard to machinery are not, from a practical point of view, to be rc
garded as being ofimportance. They put it in this way in the verbatim
record at page 144, supra:
"... the primary concern ofthe founders of the mandates system was
the obligation of international accountability, and not the details
which would spell out the manner in which the obligations would be
carried out".
Mr. President, 1say they are not consistent because, on the other band,
when they deal with the historical background ofArticle 2, paragraph 2,of
C Mandates, they stress very strongly the tact that the final text of the
C Mandate Agreements goes considerably beyond the terms proposed in
Lord Milner's original draft, since the insertion of the phrases "promote
to the utmost" and "social progress" involved expansion of the said
paragraphs. That argument we find in the verbatim record at page 147,
supra.
The Applicants regard it there as perfectly natural, and we do not
dispute their contention, that our obligation in regard to the inhabitants
of the Territory is to be read in the light of what was ultimately agreed
upon-of the obligation as ultimately formulated. That is perfectly cor
rect. But when it cornes to the general obligation of accounting and
reporting then they say that is not to be read in the light of the agreement ARGUMENT OF MR. DE VILLIERS 353
as it was ultimately reached an<l as it was ultimately recorded in the
relative instrument but, that it is to be read in the light of what people
said in the early stages of the discussions while they were still discussing
general ideas and·while they had not come down to detai y~tsI submit,
Mr. President, it is a completely illogical and unfounded manner of argu-
ment. .
The fact that these details-the actual machinery and the actual com
position of the organ-were important appears not only from what 1
have already laid before the Court. If it were necessary to add anything
at all, there is sorne indirect evidence in regard to the formation of the
United Nations which again shows how important machinery, and how
important a manner of exercising a fonction of supervision, can be to the
parties affected by it. 1 refer, Mr. President, to the provisional discus
sions at the San Francisco Conference on the question of the trusteeship
provisions of the United Nations Charter. \Ve have a discussion on the
subject in a work by Russel, Ruth B., and Muther, Jeannette E.
A Historyof the United Nations Charter (I958), at pages 838-840. One will
see.from that discussion, from which 1 will read a portion-certain ex
hacts-that there were various ideas. There w'asa general idea, of course,
of trusteeship-a general idea of accountability in respect of that trustee
ship-but there were a multitude of ideas as to the manner in which
provision should be made for carrying that idea into practiCe'and the
parties took very strong attitudes aboutit-the varioi.lsinterested States
,.:_and eventually they bad to compromise between .ideas in order to
come to a solution at all. I quote from the.work at the pages I havé
mentioned: · ·
"In the Five Power Consultative Group there. were considerable
differences over supervising machinery for the tnisteeship system.
Great Britain and Australia wanted an expert commission, similar
to the Permanent Mandates Commission. of the League, to inform
the Assembly, through the Economie and Social Council, on the
observance of trusteeship terms. They argued that the Commission
would be primarily concemed with economie; social and humani
tarian matters and should therefore be directly responsible to the
organ co-ordinating such United Nations activity. The United
States, however, maintained that the trusteeship organ would have
to deal with govemments administering the trusts, and should there
fore have a higher status as well as political representation. In that
event, it should logically report directly to the Assembly. The other
members of the Consultative Group supported this type of organ
and the United States title for it-The Trusteeship Council." '
1 skip a paragraph and the quotation proceeds: ·
"The Powers to be given that organ were also subject to con
troversy, despite general agreement that the administering States
should report to it annually in accordance with the prescribed form,
and that it should act in sorne way on those reports. The United
States, however, would not agree to any reporting on the strategie
trusts, rejecting even aChinese suggestion that such reports rnight
be made to the Security Council on the basis of a questionnaire
drawn up by it. As for nonstrategic territories, the United States
was anxious to give the Trusteeship Council the right to receive
petitionsand to institute investigations. The Soviet Union wal!ted it354 SOUTH WEST AFRICA
authorized also to 'control the fulfilment of the instructions and
recommendations given by sending [its)' representatives and inspec
tors to the trust territories. The Soviet Union also proposed that the
five major powers formulate the questionnaire for the administering
authority. On the other band. both Great Britain and France ob
jected to giving the Trusteeship Council a free band to investigate
as it might undermine the local authority of the administering State.
The United States and China maintained that petition and investiga
tion were essential means of safeguarding the rights of dependent
peoples."
Mr. President, no doubt the abstract idea of trust territories was accep
ted by all the delegates before discussion took place as to the precise
machmery which would serve to give concrete effect to that idea. Never
theless,it appears that that machinery was regarded as being so important
that proionged discussion was necessary in order to arrive at a compro
mise agreement.
The founders of the trusteeship system would certain!y be surprised to
hear the suggestion that they considered the practical machinery as of
relatively minor importance in relation to the abstract idea of trustee
ships,but not more surprised, we submit, than the eventual founders of
the mandates system would be in respect of the Applicants' suggestion
at present under consideration. I submit that those founders would be
extremely surprised to hear that in their minds this question of the exact
formation~ exahcecomposition, the exact manner of functioning and
the exact relationship between the supervisory organ and the mandatory
-was a matter which they regarded as of relatively minor importance;
and that that portion of their agreement was not to be regarded as being
at least of equal importance to any other portion.
They would be surprised to hear th at where they took time and trouble
to agree on a system of careful balances and checks that it is now to be
brushed aside as being of no importance and that their agreement is
simply to be viewed as being one relating in general to a vague concept of
international accountability, which is to be applied to sorne other body
in respect of which they never intended to give any consent whatsoever.
Mr. President, then, to conclude this historical survey regarding the
establishment of the League and of tlie mandates system, in our sub
mission the survey entirely confirms the contentions which we have ad
vanced on our pleadings, regarding the indications of probability in this
regard. It confirms in particular that, in the first place, the compromise
operated, amongst other things, as between ideas of extreme powers of
League control, on the'one band, and, on the other hand, those of keep
ing sorne territoriest of the system altogether. Those were the extreme
ideas which somehow bad to meet.
The transformation of the envisaged relationship between the League
and mandatory-from one of extreme control to one of restricted and
co-operative supervision-was one of the important features which made
the system acceptable to those who were initially against it-initially
against it either in the sense of being opposed to the principle, or being
opposed to its extension to particular territories. It was one of the practi
cal factors which rendered it more acceptable to those persons.
The transformation and the ultimate compromise included the element
that in the case of certain "C" mandates particular States would have
to be the mandatories. ARGUMENT OF MR. DE VILLIERS 355
In the second place, Mr. President, the survey confirms that the ques
tion of composition of the supervisory authority and its manner of func
tioning was an element of great importance. Amongst others, to the Res
pondent itself it was expressed to be so. That was clearly understood by
everybody before final agreement was reached. Therefore this evidence
tends very strongly against and not in favour of the implication contended
for bytheApplicants. Thetaskrestingon the shoulder of the Applicants is
to show that, with reference to this extrinsic evidence, the actual pro
visions of the instruments concerned and everything that can have a
relevant bearing on the question-as a matter of necessary inference it
must be concluded that everybody was agreed upon this vaguer and
wider concept of international supervision-international accountability
-in contrast to the precise terms of the instruments, as they are set out,
relative only to specifie supervisory machinery.
And far from satisfying the Court, Mr. President, that there cau be
a necessary inference to that effect-that it can necessarily be said that
those parties were agreed about the matter-that they did not trouble
to express it because it was too clear-that if someone had asked them
they would immediately have said that that is what they understood
about it-far from satisfying the Court to that effect, Mr. President,
the Applicants have introduced the subject which, when viewed in its
whole, as we submit it is to be, and with reference to the further facts
which I have now brought before the Court, makes it absolutely clear that
the probabilities were dead against certain of the interested parties
agreeing to such a vague concept.
I wish to refer the Court on this regard, with submission, to a passage
in the dissenting opinion of Judge van Wyk in the 1962 Prehminary
Objections-a passage with which 1 respectfully, and with submission,
wish to associate myself:
"\Vhen an agreement is the result of a compromise and an issue
arises whether any given term should be implied or not, common
sense dictates that one should have due regard to the attitude of
the parties prior to the concession, or concessions, which made the
agreement possible. It should not be inferred that a party intended
to concede more than the words of the agreement conveyed and
more than was necessary to effect the compromise. It was with
great difficulty that certain States were persuaded to accept the
supervision of the organs of the League; on what basis can it be
assumed that they would have agreed to the supervision of the organs
of another undefined organization? The words of a compromise
should never be whittled down by way of interpretation, so as to
arrive at a result not contemplated by the parties. The Court clearly
cannat infera common intention to contract on the basis ofa term not
conveyed by the words employed by the parties where the surrounding
circumstances reveal that sorne of the parties at least would not have
agreed thereto had it been raised." (l.C.J. Reports rg62, p. 609.)
I submit, Mr, President, with respect, that that expresses the matter
as aptly as can be in the circumstances, and that further support is de
rived for that approach from the very facts to which I referred this
moming, and which make it perfectly clear that there is no justification
for an implication of the nature suggested by my leamed friends for the
Applicants.356 SOUTH WEST AFRICA
Mr. President, it remains for me, before concluding my argument on
this aspect of the case, that is, on the conflict between our submissions
in regard to the interpretation and effect to be given to the initial instru
ments-on the question of specifie supervisory organ as against a general
obligation of international accountability-to deal with certain isolated
contentions of the Applicants on this aspect.
First, I wish to refer to my learned friend, Mr. Gross's contention,
which we fmd in the record at page 205,supra. There my learned friend
refers to our starting point, ·namely that Respondent's original,under
taking was limited to an obligation to report and account to ·a specifie
organ of a specifie organization of certain of the nations of the world, and
he submits that this leads to demonstrably false conclusions. Now what
are those "demonstrably false conclusions", Mr. President, which he
submits?
1He proceeds to state' that-
"... neither tlie composition of the League of Nations, nor the
Councilof the League, was fixed or static. Respondent, nonetheless [so
.; it is contended], never asserted during the Iife-time ofthe League that
when the League's original Il)embership wasaltered bythe addition Of
new.members, or the departure of original members, that Respoil~
dent's qbligations lapsed by virtue of such changes in membership.
Respondent's contèntion that it contracted for a supervisory
organ cornposed ofonl y.certain nations ofthe world'bence isa reductio
adabsurdum ofifs emphasis on the contractual nature of the Mandaté,
to the exclusion of its essence as 'an international institution regu
lated by international rules." . .
Mr. President, this line of argument in itself amounts to a reductio ad
absurdum with reference to something which was not part of my line of
argument at ali. It refers only to the expression used in our contention,
an expression referririg to an organization consisting of "certain of the
nations of the world". That was a part of our contention emphasizing
thaï we were dealing with a particular organization and with .an organ
o.fthat particular organization. We never contended, or suggested, that
~e were liable o·nlyto a certain group of nations statically defined as at
the date when that organiiation came into existence. Surely we ·could
ilever contend ~hat and we hever suggested that. The provisions of the
constitution of that organization made it possible for new members to
join-made it possible for sorne members to termina te their membership
of the organization. \Ve knew ail that when we accepted a Mandate on
behalf of the League, and that is the very point we make. The point is
that we knew what the constitution of that organization was, and we
knew what it was we were binding ourselves to. Obviously we could have
had no right to object to a change in membership through the ordinary
processes provided for in the constitution-of new members joining or
old members departing. That was something we knew beforehand. It was
part of our bargain. \Ve could never object to that.
What we could object to, and that we point out in the Counter
Memorial, TI, pages rzr-122·,was an amendment of the provisions of the
Covenant which would detrimentally affect our situation as a mandatory
in relationship to the supervisory organs. We point out in that passage
in the Counter-Memorial that there is provision for an amendment of the
provisions of the Covenant, but that there is specifie provision to the ARGUMENT OF ·MR DE VILLIERS 357
effect that such an amendment would not bind any Member of the League
that bad not agreed to such an amendment.
Therefore, Mr. President, if theread been a change in this regard-a
change in regard to which organ of the League was to conduct the super
vision-say the Assembly of the League and not the Council-or if there
was to be a change in the sense that the Council could in relation to man,
da~e·matt cemrs to a conclusion by a majority vote or by a two-thirds
vote instead of by aunanimo desision-those would be matters which
would prejudice the mandatory's position in relation ta the original agree
ment and therefore the manda tory would have the right to object to them.
If a change in the constitution came about to which the mandatory did
not agree, the manda tory would riot be bound by it although the manda
tory would then lose his membership of the League. That was the effect
of the League constitution on this particulai point, but there was never
any suggestion on our part,_,and there never could have been, that wè
could object to ame~e change in memtiership of the League itself. ·
· If that is the basis upon which my leamed friend suggests that he èould
demonstrate that we reduce our argument to an absurdity, 'then I submit
that the attempt hàs failed entirely. · · ·' · · · · ·
. The question arises, why does my Ieamed friend not rather concèntrafe
on the elements that·do count-the element of it being a·speciforgani~
zation, where the Covenant itself says "a mandatory on behalf of. the
Leagtie" -and that where the Covenant speaks in the clearest terms of
the specifie organ of that organization to which accounts are'to be made,
toits satisfaction? I have not beard any argument directe.t the.object
of sayingthat that ar~ment led to any absurd conclusion. · .
Mr. President, then m the same·pàssage; one of the other demonstrably
false conclusions, suggestedy my learned friend, appears to be .the one
which he mentions at page206, supra, of the verbatim record. · .
He submits there that: · ·
"Respondent's premise of an original undertaking limited to a
'specifie organization',mposed·of -'certain nations', leads to the
equally untenable conclusion .that at the moment of the dissolution
of that Organization, Respondent's right of annexation would have
been perfected, in the absence of a new undertaking, in expressis
verbis, to an amendment of the language of Arti22eof thCovenant~
and of Article 6, and of paragraph Iof Article7, of the Mandate."
In other words, my learned friend suggests that that would have in
volved a contemplation-that our ·contention ascribes to the authors of
the Covenant a contemplation that at a certain point of time the Respon
dent inight have a complete right of annexation. Mr. President, what
kind of contemplation is that, whlch is now ascribed to the authorth~f
Co~enan to?es it not again carry in it the same germ of false reasoning
that the authors of the Covenant, although they did not in fact, as ·is
admitted, contempla te the termination of the League's existencnever~
theless must be deemed to have thought of what would happen, should
the League come to ap end? It is again part of that reasoning. The merè
expression ïhat "Respondenfs right of annexation would have been
perfected"-how does my leamed friend arrive at that? Surely thmat~
ter has to be viewed in·the light ·ofwhat the consequences wouJd be if the
League came to an end-if the obligation of accountabilitt~encame to
àn end:-Would that mean the right of annexation on the part of·Responl358 SOU!H ~ST AFRICA
dent? Would that have been so contemplated by the authors of the
Covenant? My learned friend seems tome togo directly in conflict with
submissions he himself is making to the Court. My learned friend is con
tending that the Court was right in fmding that the Mandate continued
in existence, after the dissolution of the League~th atttill carried, as
part of it, this same trust conception as before, and that this Court would
have supervisory jurisdiction-he called it "right of judicial supervision
in respect thereof". Would that amount, Mr. President, to a "right of
annexation"? I do not understand that. Surely there is a complete con
fusion of ideas. here. One bas fust to make out, whether the termination
of supervision would also mean a termination of the Mandate-that is
our contention. If my learned friend accepts that contention he appa
rently then arrives at the right of annexation. He has not explained to
us how. He seems to have challenged us on the pa pers to say, ifthe Man
date no longer is in existence, what title we could have to the Territory
at ali. And here apparent! y he talks of.a "right of annexation", which
would have beef! contemplated by the authors of the mandates system.
Surely the crucial question to be made out there is whether there was
a contemplation that, if supervision no longer existed, the Mandate could
no longer exist. If there was no contemplation on this point, then surely
no question could arise of a contemplat10n of a "right of annexation" on
our part. .
If the contemplation was that there was severability between the
provisions for supervision· and the substantive provisions providing for
the sacred trust, as regards the administration of the Territory, then this
question of a "right of annexation" as a result of falling away of super
vision, could never arise. My learned friend has not demonstrated that
there was any actual contemplation on the part of the authors of the
mandates system on this part1cular question, nor any contemplation on
their part asto what would happen if, and when, the League should come
to an end and there could no longer be any supervision by the League
organs.
I submit therefore, Mr. President, that this conclusion, in the sense of
something that could be attributed to the contemplation of the authors
of the mandates system, is again one which is completely unfounded.
Indeed, Mr. President, this contention on the part of the Applicants
isat variance with another contention which they are advancing to the
Court and that is that, if there should have been no new agreement in the
years 1945-1946 on a substitution of a supervisory organ, then our origi
nal obligation would not have lapsed relative to supervision. It would
simply have become inoperative or dormant. They advance that argu
ment on the basis of the decision of this Court in the Barcelona Tracûon
case. I indicated to the Court before that I would deal with the merits of
that attitude taken by the Applicants-the attempt made, on their part,
to put the circumstances of this case, with reference to administrative
supervision, on a par with the reasoning of the Court in the Barcelona
Traction case, and I think this may be a convenient stage at which to
deal with that factor.
The reference to the case is in the I.C.]. Reports I964 and the parti
cular passages we find at pages 38-39. Perhaps for background it may be
necessary tore fer to the whole treatment of what was the re the second ob
jectionto jurisdiction-the second Preliminary Objection. The commence
ment ofthe trea tmen tofthat subject onefindsat page 26ofthe record,second ARGUMENT OF MR. DE VILLIERS 359
Preliminary Objection, and it proceeds, 1 think, as far as page 40. The
treaty in that particular case was a treaty between two States-Spain
and Belgium. It concerned, amongst others, the subject of adjudication
in the event of dispute between the parties regarding matters dealt with
in the treaty. Those provisions regarding adjudication, we find, were not
concise!y stated in one provision only. They were spread out over a num
ber of provisions and they contained different elements. We find that
right at the beginning of the Court's exposition on this part of the case
(itis stated at the top of p. 27), with reference to the Treaty of 19
July 1927: .
"This Treaty, which will henceforth be caUed the 1927 Treaty,
provided by its Article 2 for a reference to adjudication of ali dis
putes between the parties, involving a disagreement about their legal
rights. For this purpose, and if the methods of conciliation also
provided for by the Treaty failed, or were not utilized, the parties
were in each case to draw up a compromis, If, however, agreement
could not be reached upon the terms of a compromis within a certain
period, then the fourth paragraph of Article 17 of the Treaty, now
invoked by the Applicant Government, provided that:
[Translation]
'... either Party may, on the expiry of one month's notice, bring the
question direct before the Permanent Court of International Justice
by means of an application'."
So,Mr. President, there is not one provision providing for adjudication
by a particular tribunal, but a series of provisions providing, fust, for an
obligation of adjudication of the dispute and then for certain machinery
to be used, leading eventually to this concluding part, that failing the
earlier parts of the machinery, then this particular step may be taken by
.the party involved. That was the type of treaty which had to be inter
preted in that particular case by the Court.
May I also point out at once that the subject-matter with which the
Court was dealing there was different from the concept with which we
are dealing here, and which is submitted to the Court for consideration
by the Applicants' contention. The Court was dealing there with the
concept of an obligation to submit to adjudication. Here the parallel
concept suggested for consideration by the Applicants is a concept of
submission to international administrative supervision. Mr. President,
immediately it will strike one that there is, in so far as a possibility of
legal obligation is concerned, a wide distinction between those two con
cepts. When one speaks of a concept of being obliged to submit to adju
dication, that is a concept with a content which has become established,
by understanding, and by practice, in course of time. One knows that
adjudication in respect of a dispute is a concept with a defined content.
One can go into details as to how it is to be worked out in a particular
case, but one knows that adjudication is adjudication, whether it is to be
an arbitration tribunal, whether it is to be by an international court,
whether it is to be by a different judicial tribunal-always the basis of
adjudication is judicial. It is something which is to be accomplished by
the process of applying the law to the facts-ascertaining what the law
is and applying the law to the facts of the particular case. That is an
established concept--one knows what it is-and it is quite possible to
reason, as the Court did-I say "quite possible" with respect-that par- SOUTH WEST AFRICA
tics could notionally be agreed on a concept of that kind and that that
concept could be sufficiently precise to create an obligation on a party's
part in regard to a concept of that nature.
It becomes another matter, Mr. President, when we speak of a vaguer
concept of being obliged to submit to international supervision. What is
established about that concept-what was established about it, parti
cularly in the years I919-1920, when the agreements with which we are
concerned now were entered into? Nothing, .Mr.President. There was no
established concept of international accountability or international super
vision. The whole concept carries in itself the possibility of large grada
tions of what could be contemplated and what could be comprised in it.
Immediately it is clear that, if there is supervision, there is no defmite
criterion of the kind which one has in the concept of adjudication. A
supervisory body of an administrative kind does not look merely at legal
obligations-does not only look at application of the law to the facts-it
looks at very much more. It looks at policy applied. It looks at action
taken. It looks at the manner in which a discretion is exercised. It looks
at the question whether good use is made of the powers-in the expres
sion of one of the reports made to the League on the subject.
In other words, it is something which cowd very vitally affect the
actual day-to-day exercise of a power-the exercise of a discretion-the
manrier in which one acts in pursuance of a power, and it would depend
upon the exact manner in which one prescribes the concept of super
vision, to what extent that interference would be possible. If there is no
specifie prescription asto what the function of supervision is to involve
how far it may go, and how far it may not go-then this question of how
far it could go would very largely rest with the supervisory authority.
It would then become very important to know who that supervisory
authority is, how it would be constituted and composed, and what its
approach would be to its task. Ail those things would have to be known
before there could be any definite content ascribed to a concept of inter
national supervision or international accountability, before it could be
come, in my submission, anything precise enough to form the subject
matter of an obligation.
In the absence of something more precise than this vague concept, the
whole idea of an obligation to submit to international supervision would,
in my submission, be void for vagueness, because it would not relate to
anything which could be said to be a subject of common understanding
or agreement between the Parties.
Therefore, a certain measure of definition, exactness and preciseness,
to indicate what is meant by that concept when it is to be translated into
practice, would be necessary in the case of administrative international
supervision, as opposed to a concept of being liable to adjudication.
Now, Mr. President, when we look at the actual reasoning of the Court
in the Barcelona Traction case, we find that it proceeds very stron9ly on
the basis that, in view of the particular provisions of that Treaty, 1t was
possible to separatean obligation of submitting to adjudication from the
particular tribunal which was concerned in the later clause-Article 17,
paragraph 4. of the Treaty.
The Court in the first place came to the conclusion that, even if the
Article providing for adjudication would have lapsed in the normal course
due to the cessation of existence of the Permanent Court--even in that
event, Article 37 of the Statute of this Court would still have resulted ARGUMENT OF MR. PE VILLIERS
in a position that thatwould not have mattered. As soon as both Parties
eventually becarne signatories to the Statute of this Court, the effect of
Article 37 would be·that the adjudication clause would still apply with
a substitution of the present Court for the Permanent Court.
This reasoning, the Court stated, on the basis of the exact provisions
of the Treaty, was additional to the conclusion at which it had already
arrived on the basis of Article 37 of the Statu of the Court alone. The
Court made that clear on page 37 of its Judgment:
"The Court has thought it desirable to base itself up to this point
wholly on considerations relating to Article 37 of the Statute which,
in its opinion, would (in the absence of any relevant special factor)
be applicable to the case of all the jurisdictional clauses in the trea
ties and conventions to which Article 37 applies. In the case of trea
ties having the character of the Hispano-Belgian Treaty of 1927,
however, there are special features which afford additional support
for the conclusions arrived at on ·the basis of Article 37 alone."
(I.C.J. Reports I964, p. 37.)
It was on the basis of these special features that the Court proceeded
with its reasoning, of which a portion was extracted by my learned friend
for the purposes of placing his case within the princip le there enunciated.
The Court proceeded: ·
"Article 17 (4) of the Treaty was discussed between the Parties
in the course of the written and oral proceedings, largely in relation
to the question of its 'severability' from the rest of the Treaty. Into
this question, which has implications reaching far beyond the scope
of the present case, the Court does not consider it necessary to go.
What must be true, on any view of t~e mattez:, is that Article 17 (4)
is an integral part of the Treaty as a whole; and its judicial fate
cannot be considered in isolation.
· t is at this point necessary to note that Article 17 (4), the relevant
terms of which are cited above, bad as its primary object in the
scheme ofthe 1927Treaty, what was more a matter of mechanics ... "
(Ibid.) . . .
1 emphasize, Mr. President, that was thefrimary object in the scheme
of the 1927 Treaty. The primary object o Article 17 (4) was "more a
matter of mechanics". The Judgment continues:
"... narnely to indicate in what circumstances, and at what precise
point in the attempt to dispose of the dispute, either party would
have the right to take the matter to the Court. This right was to be
exercisable if the (optional) conciliation procedure provided for by
the Treaty had not been made use of, or had failed; and if agreement
had not been reached within a certain period on the terms of a
compromis for the submission of the dispute by mutual consent to
the Court or to arbitration; and if, thereupon, a month's notice was
given ofthe intention to take ~he matter to the Court unilaterally.
The basic obligation to submit to compulsory adjudication,
however, wasand is carried by two other provisions ofthe Treaty ... "
(Ibid.)
And that I cannot emphasize heavily enough. That basic obligation was
not found by the Court in this particular clause of Article 17 (4). .SOUTH .WEST AFRICA
"The basic obligation to submit to compulsory adjudication,
however, was and is carried by two other provisions of the Treaty,
namely Article 2,and the fi.rstpan1graph of Articl17.The relevant
paragraph of Article2 reads as follows:
'All disputes of every kind between the High Contracting
Parties with regard to which the Parties are in confiict asto their
respective rights, and which it may not have been possible to
settle amicably by the normal methods of diplomacy, shall be
submitted for decisionto an arbitral tribunal orto the Permanent
Court of International Justice.'
The Treaty then goes on to provide for the conciliation procedure,
and continues in Article 17 (1) to reaffirm the essence of Article 2
as follows:.
'In the event of no amicable agreement being reached before
the Permanent Conciliation Commission, the dispute shaH be
submitted either to an Arbitral Tribunal or to the Permanent
Court of International Justice, as provided in Article 2 of the
present Treaty.' "
And it was only after that, Mr. President, that this particular clause,
Article 17 (4), followed which indicated that "either party may on the
expiry of one month's notice bring the question direct before thPerma~
nent Court of International Justice by means of an application". That is
the basis on which the Court separates the general obligation to submit
to adjudication, and this particular part of the machinery fmally related
solely to thisCourt.
[Public hearing o2 April r965]
Mr. President,at the conclusion yesterday I was dealing with sorne of
the remaining contentions of the Applicants regarding the first major
issue between the Parties regarding Article 6 of the Mandate-the issue
whether the obligation related to specifie supervisory macl}inery only,
or whether it was of a wider nature contended for by the Applicants.
And 1 was dealing with the reliance which the Applicants placed in that
regard on the decision in the Barcelona Traction case in support of their
contention-the attempt of the Applicants to argue by analogy from the
reasoning of the Court in that case regarding a compulsory adjudication
.clauseto the contention which they now advance about international
supervision. And I submitted to the Court, Mr. President, that there was
a distinction between ·the concepts of compulsory adjudication and
international supervision for the purposes of this suggested analogy. I
submitted that it was conceivable that the concept of compulsory
adjudication could be regarded as establishedo such an extent-to have
a suffi.ciently definite meaning in ardero be the subject~m aftter
legalobligatio tnat iocould not be said that if parties stipulate for
an obligation to subrilit to compulsory adjudication, such a stipulation
should be regarded as void for vagueness. One can see that questions
could arise inthat regard, depending on a particular instrument and
particular circurustances. The minority judges; including Judge Morelli,
in theBarcelona Traction case apparently had diffi.cultywith that idea in
itself.But th~r ie, Mr. President, a strong case to be made out for the ARGUMENT OF MR. DE VILLIERS
proposition that one could have an obligation relating to compulsciry
adjudication without more-without having to stipulate a specifie forum
for the adjudication.
That is the one side of it. The other side of the picture is this: when it
cornes to the concept of international supervision, I submit, even as it is
today, it is a matter of such uncertain and such variable content that
that can certainly not be the subject-matter of an obligation. But if there
were to be a stipulation that a party was to be obliged to submit ta
international supervision, without more, that stipulation would surely
have to be regarded as void for vagueness.
The reasons for that distinction 1 indicated to the Court yesterday, and
1 need not repeat them now. The Court, in my submission, in the Barcelo
na Traction case found that on the basis of the particular provisions in the
instrument before it-=-the Hispano-Belgian Treaty of 1927 there was an
agreement between the parties whereby there would be an obligation to
submit to compulsory adjudication, and that that obligation could stand
independently of a particular clause which referred to adjudication by
the Permanent Court. 1 pointed out, M.r.President, that the question in
the Barcdona Traction case concemed the disappearance of the Perma
nent Court and the effect which it had on the particular adjudication
provision. The circumstances, as the Court will recall, were that Spain
first became a signatory to the Statute of this Court sorne years after the
Permanent Court had disappeared, and the question then arose whether
under those circumstances Article 37 of the Statute of the Court could
still provide for a substitution of Courts, or a change-over of Courts; in
other words, whether the adjudication provisions had not already lapsed
completely and beyond-redemption. The Court, as 1 pointed out, gave as
its main answer that Article 37 inïtself, on a true construction of the
Article, avoided that result, and that despite the fact-despite the possibil
ity, that the particular provisions might have lapsed had it not been for
Article 37, Article 37 prevented such lapse. But m addition, as I .pointed
out, the Court said at page '37 of the Judgment that there were special
features in the Hispano-Belgian Treaty of 1927 which afforded additional
support for the conclusions arrived at on the basis of Article 37 alone.
Now what were those special features, Mr. President? They were, in the
first place, the fact that there was a series of provisions on the question of
adjudication-not only one provision, which was inevitably linked and
necessarily linked with a particular tribunal. The provision which was in
issue there-Article 17, paragraph 4, of the Treaty-the one which gave
a party the right to institute proceedings unilaterally in the Permanent
Court and which mentioned, in that regard, the Permanent Court as the
only tribunal-that provision, Mr. President, was an ultimate one which
was only to apply after a number of other provisions which provided for
international adjudication-for compulsory adjudication-bad failed.
Those other provisions, Mr. President, preceding Article 17, paragraph 4,
of the Treaty, provided in the first place for conciliation procedure. They
provided also that agreement could be reached to bring the dispute to
adjudication by joint action, either before the Permanent Court or before
an arbitration tribunal. So that there were all those possibilities which
could lead to actual adjudication, and which demonstrated the intent of
the parties to be bound to an obligation to submit to compulsory adjudi
cation, before this particular provision could, come into operation after
a month's notice-after all the others had broken down,-the provision SOUTH WEST AFRICA
by which one party could then unilaterally take the matter to the
Permanent Court.
In those circumstances the Court held, and 1 refer to page 37, that this
last provision (Article 17, paragraph 4)-
"... had as its primary abject in the scheme of the 1927 Treaty,
what was more a matter of mechanics-namely to indicate in what
circumstances, and at what precise point in the attempt to dispose
of the dispute, either party would have the right to take the matter
to the Court".
Mr. President, that was more or less as far as I .came yesterday in
dealing with this Judgment of the Court. I wish to refer further to what
the Court said at page 38. The Court said:
"In the light of these provisions, it would be di:fficwt either to
deny the seriousness of the intention to create an obligation to have
recourse to compulsory adjudication-ail other means of settlement
failing-ortoassertthat this obligation was exclusivelydependent on
the existence ofa particularforum, insuch a way that it would become
totally abrogated and extinguishe_d by the disappearance of that
forum. The error of such an assertion would lie in a confusion'of ends
with means-the end being obligatory judicial settlement, the
means an indicated forum, but not necessarily the only possible one.
This double aspect appears particularly clearly on the basis of the
severa! jurisdictional clauses of the 1927 Treaty, taken as a whole;
and these considerations fumish the answer to the contention that
the obligation of conipulsory adjudication in the Treaty was so
indissolubly bound up with the indication of the Permanent Court
as the forum, asto be inseparable from it, and incapable of continued
existence in the absence of that Court. On the very language of
Articles 2 and 17 (r),this is not the case. An obligation of recourse to
judicial settlement will, it is tnie, normally find its expression in
terms of recourse to a particular forum. But it does not follow that
this is the essence of the obligation."
That was the basis, then, upon which the Court found that it was possible
to speak of this double aspect of the adjudication provisions of the 1927
Treaty, and that there was, independently of this particular clause that
was in issue in that case-Article 17, paragraph 4-an obligation to
submit to adjudication which could stand independently of the dis
appearance of the forum-of the Permanent Court-which would in that
particular respect be dormant-but only in that particular respect
because it could still apply in so far as the parties could come to an
agreement to submit a dispute to arbitration. In that particular respect,
however, it would then become dormant, but upon the new agreement
between the parties-as soon as both of them became signatories to the
Statute, and as saon as both became parties therefore to Article 37 of the
Statute-that obligation would, in regard to its application in practice,
be revived in full.
Another significant aspect of the language of the Court in this regard is,
stillat page 38, the following:
"If the obligation exists independently of the particular forum
(a fact implicitly recognized in the course of the proceedings,
inasmuch as the alleged extinction was related to Article 17 (4)
rather than to Articles 2 or 17 (r)), then ... " ARGUMENT .OF MR. DE VILLIERS
certain consequences follow, which 1 need not read.- My emphasis is on
the fact that the Court says it was "implicitly recognized in the course of
the proceedings" that the obligation ex1sted independently of the particu
lar forum "inasmuch as the alleged extinction was related to Article 17
(4) rather than to Articles 2 or 17 (r)". That, Mr. President, I submit,
makes it perfectly clear on what special features the Court based that
particular ftnding in the Barcelona Traction case.
1 have, Mr. President, with respect and with submission, heard no
contention on the part of the Applicants pointing to similar special
features in the present case upon which the Court should :come to the
conclusion that the provisions of the Covenant of the League·and of the
mandate instruments, in so far as they relate to international supervision
should be construed as relating to a vague obligation of submitting to
international supervision and are not inseverably linked to the particular
organs mentioned in them, as we·contend. There isno contention, as I say,
on behalf of the Applicants, which refers to such suggested special
features. There can be none, Mr. President. There is no double aspect to
the provisions in this instance as there was in the case of theadjudication
provisions in the Hispano-Belgian Treaty in the Barcf!lonaTraction case.
In the case of the instruments now under consideration by the Court, we
have only two provisions specifically referring to the question of inter
national supervision. They are: Article 22, paragraph 7, of the Covenant
of the League, and Article 6 of the mandate instrument for South West
Africa. Both of them, Mr. President, define the obligation to submit to
supervisiqn only with reference to a particular· forum-a particular
supervisory organ-and the second one of them-Article 6 of the Mandate
itself-it says that the reporting is to be to the satisfaction of that organ.
In other words, there is nothing in· the language of the instruments
concemed on which to base a contention analogous to the finding of the
Court in the Barcelona Traction case, and as 1 have pointed out, the
language in that case-the language of the particular treaty there-was
something very strongly relied upon by the Court.
Apart from language, we have dealt at length with surrounding
circumstances and history, and we have submitted that on a full review
there is nothing in that extrinsic material on which the Applicants could
rely as justifying a finding of special features of a dual aspect of the nature
for which they contend. Again, the indications both of the language
which is clear and unambiguous-and of the surrounding circumstances
-which point to very strong probabilities in favour of our contention
and which militate against that of the Applicants-exclude any possi
bility ofafmding that the obligation was intended to be avague onerelating
to international supervision, and not one which was dependent entirely
upon the existence of the particular forum.
I submit that, Mr. President, in addition to the contention which I
mentioned to the Court yesterday, viz., that surely in rgrg and 1920,
there could have been no suggestion that an idea of submitting to
international supervision could in itself have been an established concept
-something on which there could, without more, have been a concur
rence of mind-a consensus ad idem--on the part of contracting parties.
Without further stipulation, without indicating what forum, without
indicating its composition, its manner of functioning, it would have been
impossible, I subrnit for the parties to know what it was that they were
required to submit toby way of legal obligation. And ail the probabilities, SOUTH WEST AFRICA
and ail the indications of language, are against the contention that that
was intended to be the agreement of the Parties.
1 proceed now to another of the contentions of my learned friend on
this basic issue of the interpretation to be given to the original agreement
between the Parties, the issue of specifie organ versus international
accountability. This is the contention which we find, Mr. President,
stated in the verbatim record at page 125, supra. My learned friend,
Mr. Gross, stated it as follows:
"It appears to be common cause between the Parties that super
vision,or the right of recourse to supervision, is normal and essential
in any situation in which control and benefit are separated, that is to
say, in which one person, or entity, exercises a power over property
or other interests, while another is entitled to the benefits thereof.
This, of course, is the essential underlying concept of trust, or
tutelle, in ali legal systems, of which the Applicants are aware."
Mr. President, 1do not know where this idea of common cause origi
nates from, because if there is anything which is not common cause in
these proceedings, then it isthat proposition. Now, 1should have thought.
with respect, that that should have been perfectly clear from the way in
which we deal with the subject in our Rejoinder, V, pages 41-42. I shall
revert in a moment to what we say in that regard in the Rejoinder. First,
may I point out that the Applicants develop the contention which I have
just referred to, in the verbatim record, at pages r88-r8g, supra. I am not
going to read all of it to the Court. 1shall indicate broadly what the main
essentials of the line of argument there were. My learned friend started
off by saying:
"Mr. President, 1 had reached the point of stating that in their
Reply the Applicants have demonstrated that the basic principles of
the Mandate structure, being a combination of the concept of trust
or tutelle and of mandatum, require that the Mandatory, the trustee,
or the tuteur, be subject to accountability. This is discussed in our
Reply (IV) at pages 525-540."
And my leamed friend goes on to refer, in fact, to the answer which we
gave in our Rejoinder. He refers twice-both at page r88, supra, of the
verbatim record thereof to page 43 (V) of our Rejoinder; and he refers to
the answer we gave, although I must say, with regret, he takes our answer
somewhat out of perspective. And what is it he says? At page r88 of this
record his submission is, firstly, that our rebuttal "consists of a mere
assertion". He says further that that rebuttal is "coupled with doubtfully
relevant propositions conceming principals and agents, masters and
servants, and certain types of brokers", and then he adds the contention
in regard to the trust in England. That is stiJl at page r88. And then still
at page r88 he ascribes to us a contention, which we never advanced,
namely that is that we have a duty to report and account to the inhabi
tants of the Territory. These would seem to be the main elements in the
answer which he gave to our exposition, and I should therefore like to set
the perspective straight and to refer to what our exposition was, in the
main, and to show to what extent these comments are or are not justified.
The Court will recall that these contentions on behalf of the Applicants
were advanced also in the Reply, where they sought to apply an analogy
from municipal law institutions of trust and tutelle to the case of the
mandates system. Our answer broadly was that their generalization in ARGUMENT OF MR. DE VILLIERS
regard to municipal law was wrong, and, therefore. that the application
oftheir generalization to the mandates system was also wrong. ln giving
that answer we distinguished, Mr. President, very clearly between our
contentions regarding municipal law and our contentions regarding the
mandates system. In fact, we dealt with those three subjects separately
under separate headings. At page 42 of our Rejoinder (V) we dealt with
the first one, under the heading "Fiduciary Institutions in Municipal
Law"-in the series of paragraphs commencing with paragraph 31. Then,
at page 45, we proceeded to deal with the other subject under this heading,
"The Analogy between the International Mandate and Municipal
Fiduciary Institutions", in the group of paragraphs starting with
number 34·
Mr. President, in regard to the situation in municipal law we made
certain points. 1 will just mention the main ones, I am not going to read
it all to the Court now. We made the point that there are many categories
and a very large number of ftduciary institutions in municipal law in
which control and beneftt are split or severed from one another-when
the man having control is obliged to exercise that control for the beneftt
of another, which is essential in the trust idea. We made the point that
that concept applies not only to a trust properly so called-not only to
cases of guardianship or tutelle-but in a variety of other cases having
different names but containing a similar fiduciary element. We referred
in that regard at page 42 (V), of our Rejoinder, to an extract from
Quincy Wright in which he refers to a large number of such situations
which bear sorne analogy to the situation in the mandates system. He
refers there to agents, to executors, to administrators, to attorneys, to
directors of corporations, to guardians "and others who are not strict
trustees but whose functions are like those of the trustee in that they act
for others and are entrusted with power over, and title to or possession of,
things to be used for the advantage of another". We pointed out, at the
next page, that there could even be additions to that list, and we men
tioned as a few examples certain types of servants and employees. We
had in mind, for instance, persons in a managerial capacity in a com
pany, andso forth, or in a partnership or ordinary ftrm, or members of club
committees; one could think of members of Church councils, and so forth.
Then, Mr. President, we proceed to submit at page 42 (V) that:
"\Vhen regard is had to the wide class of ftduciary relationships
referred to above, ali of which involve a division between control and
benefit, it immediately becomes obvious that Applicants are wrong
in saying that one of the consequences of such division is that 'there
must be supervision by a public authority', or that reporting to, and
supervision by, such authority are 'necessary corollaries of the
ftduciary character' of such relationships. Such supervision is not as
a matter of logic inherent in the division between control and benefit,
and, indeed, there must be few, if any, municipal systems which
provide for public supervision in respect of all such relationships, or
even most of them."
Mr. President, it seems, with respect, that our contention was stated
very explicitly and clearly, and 1 still do not understand where the
concept of common cause cornes from. .
We proceeded to point out, Mr. President, that the true position is
that the only obligation with respect to accountability which is normally SOUTH WEST AFRICA
regarded as incidental, in principle, to a fiduciary relationship, is the
duty to render account to the beneficiaries, and that was the distinction
we drew, purely in regard to municipal law. We made it clear that one
could not say that it was necessarily incidental to a fiduciary relationship
of a type where control is separated from benefit, that there must be
accounting to a public supervisory authority. What is incidental, is that
there must always be accounting to the beneficiaries themselves, but
that accounting is of a different kind. The accounting is of the essence of
the obligation itself. Accounting means, on the one hand, that there is to
, be given to the beneficiaries what is due to them under· the particular
legal arrangement. There is to be accorded to them what they are
entitled to,and, in order to accord to them what they are entitled to,
the trustee, or quasi-trustee, or whatever his title might·be in the particu
lar situation, is obliged to indicate what he has done with histrust-what
are the results of his trust. The results are paid over-madeavailable-to
the beneficiaries.
But, Mr. President, supervision by a public authority is a different
concept. It is true that it is very often regarded as very desirable to have
regular accounting by a trustee, or quasi-trustee, to such a supervisory
authority, but that does not flow from the institution of a fiduciary
relationshipas a necessary corollary, or as something inseverably
connected with it:It is·som~t h inhgis, in specifie instances, provided
for by a special·arrangement, and in municipal law mostly by legislation.
We say then, Mr. President, in our Rejoinder:
"In additiàn to the duty to account to the beneficiary, sorne form
of accounting to andfor supervision by a public autlwrity has been
introduced in many systems, in respect of the performance of
fiduciary obligations falling in spccified categories. Such introduction,
which commonly occurs by way of legislation, has in no case of
which Respondent is aware, resulted in a uniform duty falling upon
allfiducia traccount to, or submit to the supervision of, sorne
public authority. Afuchthe reverse is the position-aU probability
the majority of fiduciary institutions in the civilized world.are not
subjectto such supervisiOn at ali, and where it does exist, it does so
by virtue of a special provision made ad hoc :with respect to a
particular category of fiduciary institution." p. 43.)
It is that propos which weoproceeded to illustrate with reference to
varions systems and known fiduciary relationships.
I submit, Mr. President, that that position is indisputable (it appears
from the very authorities which the Applicants themselves have put
before the Court) and 1 pointed out the significance of it but have had
no reply from my leamed friend, that in the United Kingdom, which is
the home ot the Anglo-Saxon trust, there is no provision for regular
supervision by an administrative supervisory authority, or for accounting
to such an authority. We refer in that regard to the authority in footnote
4, page 46, of the Rejoinder (V).
We also refer to the authorities relied upon by the Applicants them
selves in regard to the situation in the United States of America, where
they point out that in some states, but not in all, there is provision for
accounting to authority by trustees, or at least trustees acting under a
will-in other words. not ail trustees, and not in all states-trustees
acting under a will in some states, but not in all, leaving out of account ARGUMENT OF MR. DE VILLIERS
ali other fiduciary relationships, even trustees acting under a deed inter
vivos.
We further pointed out, Mr. President, in the Rejoinder, V, paragraph
33, pages 44-45, that there is a need for special provision in municipal law
to have supervision of this nature-accounting to a supervisoty public
authority-and that in municipal law such provision is normally to be
found in legislation.
Then, .Mr.President, one cornes to questions asto the nature andscope
of the supervisory power, and of the obligation to submit toit, which is
the particular question with which we are concemed here, namely
whether the obligation was inseverably linked with a particular super
visory authority, or whether it could continue to exist independently of
that authority, if that authority should cease to exist.
· Those are questions of interpretation of the relevant legislation in
every case. In each instance it is a matter of ascertaining the intention of
the legislature. The normal situation is that the legislature provides for
the obligation and for the supervisory authority as two things linked
with one another. If the supervisory authority should fall away for any
reason, the legislature is always there to make a new provision, if neces-
sary. · · ·
That is generalizing. The main pointis that, as a matter of principle, it
is a question of interpretation in every case-of ascertaining the relevant
intent of the legislature-tc see whether it is intended that a particular
obligation to submit to supervision should survive when the particular
supervisory body, mentioned in that legislation, falls away. ·
That, Mr. President, brought us to the Applicants' suggested analogy
regarding the mandates system, their application of the principles of
municipal law to the case of the mandates system. Obviously, we stress,
thercfore, that in so far as one do,es find m the mandates sysü;m an
obligation relating to accountability, tpat obligation did not originate
because of any necessary, or inseverable, connection between such an
obligation and an institution of trust, or tutelle. It arose for one reason
only, and that is that the authors of the mandates system considered it
desirable to make such provision,_just as the legislatures in municipal
systems consider it desirable to make·such provision in particular cases,
but not in all cases. ·, ·
Therefore, it was again the question of a need to have law-making, as
in municipal systems, and the law-making here consisted of the treaties
and conventions in question-the Covenant of the League and the
mandate instruments made in pursuance of them. And, therefore, if one
is to. ascertain the question whether that particular supervision was
intended to survive the particular supervisory organization, it again
becomes a matter of ascertaining the intent of those responsible for this
law-making-in other words, the authors of the Covenant and the parties
that gave their consent to the mandates instrument ..That, and that only,
is the basis upon which one can determine a question of this kind.
We dealt with that question, Mr. President, in the Rejoinder, page 45
(V), particularly paragraph 35·
So that sets out our attitude. \Ve, of course, did not dispute that the
authors of the mandates system found it desirable to make provision for
supervision by a supervising body, but the question of the nature and the
content of that provision, and particularly its effect on this issue between
the Parties as to the continued existence of the obligation in the absence370 SOUTH ,WEST AFRICA
of the supervisory authorities, is a matter.which can only be determined
on the basis of ordinary interpretation and implication, relative to joint
intent-in other words, by applying the ordinary principles to ascertain
the joint intent of the authors of the instrwnent.
To suggest, Mr. President, that we are suggested to have said that we
are now, under the mandates system, liable to report to the inhabitants
of the Terri tory is to ascribe tous something which we never said. We do,
of course, accept that we are responsible for the inhabitants of the
mandated Territory. We accept that we have a trust obligation in regard
to them. We accept that we have to administer the Territory for their
benefit, and we are doing that; we assist them in building up their own
political institutions as a means of responsible deliberation and consulta
tion between them and the Mandatory Government, and also as a means
of self-expression in case they may have any cause for just complaint.
In any case, Mr. President, the Respondent Govemment acts openly and
before the eyes of the world, whether it is Hable to supervision, or not. It
has not treated the Odendaal Commission report or the Government's
reaction thereto, in the White Paper and the Parliamentary debate-as
official secrets or as matters of underhand scheming. These things proceed
openly before the eyes of the world, and they are done by way of fulfilling
a sacred trust towards the inhabitants of the Territory. But to suggest
that we say that we have to make reports to the inhabitants of the
Territory is ascribing tous something which we never said.
In dealing with this aspect of the matter in the Rejoinder, i\Ir. Presi
dent, we said:
"In order to determine the nature and content of the duty of
accountability, it accordingly becomes necessary, alj·in municipal
law, to examine and interpret the relevant law-making instrwnent.
The content of the duty of accountability to be thus determined,
must provide the answer to the question whether provision was
made for a substitution of supervisory organs. This answer can
consequently be obtained only by ascertaining the intentions of the
authors of the Mandate System as expressed or implied in the
Mandate docwnents." (V. pp. 45-46.)
We proceed to discuss that question with relevant reference to the
facts, as l have done in the course of this oral argument, and l do not
wish to reiterate, except to state these conclusions as they are set out in
the Rejoinder:
"They [the Applicants] do not show ... [that] the authors of the
System, in the circumstances then prevailing, [induced] to make
provision for the future succession of an undetermined body, in
unknown circumstances, to counter the effects of a situation (the
dissolution of the League) which they did not expect to arise and
which could be dealt with if and when it did arise." (V, p. 46.)
And we conclude, Mr. President, with this:
"AU this becomes the more evident from the fact that the Appli
cants do not show why, if there had been an intention to provide
for succession as regards supervisory organs, it was not expressed
in the documents themselves, or in any preparatory debatc or
negotiation or why it was not referred to in the later discussions
on that subject." ARGUMENT OF MR. DE VILLIERS 371
And that, 1 submit, may be a suitable note on which to conclude this
review of the fust major issue between the Parties.
I proceed, Mr. President, to deal with the next stage in the develop
ment, namely with the events of the years 1945 and 1946 when the
United Nations was formed and when the League of Nations was dis
solved. In the light of the issue between the Parties, i.e., the rival con
tention about the interpretation of the original obligation-the obligation
as originally stipulated in the Covenant of the League and the mandate
instrument-we have to determine the significance of the events of the
years 1945 to 1946.
Ifthe Respondent is correct in its submission that its obligations of
accountability under the Mandate related only to the specifie supervisory
organs referred to in the relevant instruments, the consequence would be
that, on dissolution of the organsin question, no duty of accountability
would have remained, unless specifie provision was made for a substitu
tion of organs. In other words, there would have bad to be what the
Applicants term in that regard a wholly new agreement. The Applicants
have conceded that that would have been necessary and 1 do not have
to refer to the passages again.
1 have also shown, Mr. President, that the Applicants apparently do
not attempt to show that if such a wholly new agreement was necessary
for the purpose of providing, or keeping alive, the duty of accountability,
it was in fact entered into. Their submission is, as we have shown, that
the Respondent was obliged initially to submit to international account
ability, and not to supervision by specifie supervisory organs. But we
have also indicated, Mr. President, that they admit that that leaves them
with the problem that when the specifie authority-the only supervisory
authority-initially mentioned feil away, that obligation, on thetr
premise, would have become dormant unless there was agreement for the
substitution of a new supervisory organ. So, on their premise as weil as
on ours, it becomes necessary to show that there was in this regard a new
agreement in the years 1945 and 1946-a new consent-a new arrange
ment-involving consent on the mandatory's part.
The Applicants contend that that consent was given ab initioin the
original arrangements of 1919 and 1920. They admit that they have to
establish sorne consent in the years 1945 and 1946.
And, Mr. President, whether one approaches the matter from the
Applicants' point of view-from their premise--or from the Respondent's
premise, it becomes clear that the same principles of law must apply to
this inquiry. It is common cause between the Parties that there was no
express agreement on this question in the years 1945 or 1946-no
express agreement whereby the United Nations, or any organ of the
United Nations, was accepted by the Respondent as the new supervisory
authority in substitution for those provided for in the initial agreements.
Therefore, the only basis upon which consent could be established would
be by way of the showing that it was tacit. It would be by way of a
process of inference from fact-by way of showing a proposition by
circumstantial evidence. The ordinary principles would apply in that
regard, it being necessary as the Applicants put it themselves, to establish
that proposition by proof which is so unequivocally clear asto leave no
room for any reasonable alternative.
In other words, Mr. President, we submit that irrespective of which of
the Parties is correct in its interpretation of the extent of the duty of372 SOUTH WEST AFRICA
supervision, as originally created, this Court has to determine whether an
implied or tacit agreement was concluded during the transitional years
whereby Respondent consented to submit to the supervision of the
General Assembly of the United Nations. And, as a matter of law, no
such agreement can be implied unless the inference is consistent with ail
the proved facts, and unless no other reasonable inference may be drawn
from the relevant facts and circumstances. That, as I have said, would
apply on either basis.
The orùy difference between the Applicants' approach and our ap
proach would seem to relate to a question of assessment of the facts.
The only conceivable difference could be this, that if the Applicants'
approach is correct there was still an obligation, although a potentially
dormant one, of a wide nature, to submit to international supervision.
Then, perhaps, sorne utterance or sorne event, or the totality of utterances
and events during the years 1945 and 1946, may, as a matter of fact, have
to be given some.different weight from what the position would have been
if it had been necessary to establish a wholly new agreement. That, of
course, ispurely a question of appraisal offact in particular circumstances.
1t does not affect the legal principle which I have mentioned which makes
it necessary for the Applicants to establish their proposition as a neces
sary inference from all the relevant facts.
As far as we are concerned, Mr. President, it does not matter tous, in
this particular review which I am going to imdertake now, which of those
approaches is followed. In our submission,. the result is the same, in any
event.
May I fust put to the Court the way in which the Applicants have
stated their approach? They said in the verbatim record at page r32;
supra: ·
''... whatever conclusions might be reached in respect of the degree
or quality of truth necessary to demonstrate a new amendment
under the false premise from which Respondent proceeds, a different
set of considerations, we submit, is applicable ifone proceeds from
the premise that the obligation of international accountability is an
essential and integral element of the Mandate and that it must
survive so long as the Mandate itself endures. It would follow from
this premise, upon which the Applicants rest, that the only refll;aining
question-although an important one indeed-would be whether the
function of supervision passed to the nearest equivalent of the
League, to wit, the United Nations. If not, these Articles would not
have lapsed, but would have become inoperative for lack of a
supervisory organ with capacity to replace the League Council.''
In our submission, Mr. President, as I have said, there can' be no
different set of circumstances as far as the legal principles are concemed.
The only basis upon which the Applicants could establish, in their own
words, that "the function of supervision passed to the nearest equivalent
of the League, to wit; the United Nations", would indeed be consent on
the part of ail the interested parties, and in particular, on the part of the
Respondent. And that is, therefore, the purpose of this review.
As I have said, 1\fr. President, it does not matter to us whether this
review follows the Applicants' approach or ours. In our submission, the
events of the years 1945 and 1946 are so clear that they not only show
that there can be no necessary inference of a general agreement on this ARGUMENT OF MR. DE VILLIERS 373
point, but that they also show definitely that there was no such general
agreement, and we say that that is so whether one has to establish a
wholly new agreement, or a lesser proposition of consent to a substituted
organ.
Now, Mr. President, before reviewing the events themselves, it may be
necessary to draw a distinction with respect to something which arises
in the manner in which the Applicants have presented their review of the
facts of this period, and that is a distinction between the question
whether the Mandate survived the dissolution of the League and the
question whether provision was made during the transitional period for
a substitution of supervisory organs.
The Applicants, Mr. President, approach the matter as if the two
questions were inseparably linked with one another-as if a positive
answer to the one would necessarily imply a positive answer to the other.
They seem to approach the matter more or Jess in this way: firstly, that
the Court must find that accountability was an essential element of the
Mandate, or that it was the very essence of the Mandate, as they have
put it, with the result that if the· Mandate can be said to exist it must
necessarily follow that accountability under the Mandate also exists.
That seems to be their first proposition, viz., that the Court must come
to that conclusion. ' ·
Then, Mr. President, arguing from that premise, they seem to suggest
that it must follow that ali States which dealt with this problem in the
earlier stages must, at ali times, have held a similar view about the sit
uation with the result that if any State indicated that it thought that the
Mandate would stiJl exist after a certain event, say, after the dissolution
of the League,.then that must necessarily also carry the implication that
that State considered that accountability would still exist after the dis
solution of the League.
Mr. President, that, in my submission, is of course a complete fallacy.
The two questions are entirely distinct: i.e., what the Court finds now as
a matter of law and ex post facto, and what varions States thought
at varions stages whilst this question was emerging and while it was
being discussed and dealt with in the varions organs. If the Court should
now find that on the basis of interpreting the intentions of the authors
of the mandates system the element of accountability is indeed an
essential part of the Mandate, then the Court would be making something
which I yesterday described as being in the nature of an ex post facto
finding.
We proceed from a factual basis which is common cause, viz. that the
authors of the mandates system did not contemplate the dissolution of
the League. Therefore, Mr. President, it seems quite evident that it can
nat be said that they specifically contemplated what would happen in the
event of the League, as supervisory body, falling away, i.e., whether the
mandates could or could not stiJl remain in existence after that event.
That is a matter which is not specifically dealt with in any of the instru
ments which have to be interpreted. It is a matter on which there was
no expression of opinion at the time of the creation of the mandates sys
tem, and, Mr. President, it is a matter in regard to which the probabi
lities show that it was never in fact contemplated by the authors of the
system at ali. They did not think about it. They did not intend to make
any provision in that regard.
Now the Court may be faced with the question, namely that if it finds374 SOUTH WEST AFRICA
that supervision has lapsed whether the rest of the mandate instrument
can stand without supervision. Then the Court has to relate that ques
tion to the probable intent of the authors of the mandates system. That
can only be done, as in so many of the cases that arise in practice, on a
somewhat artificial, and almost speculative, basis, particularly in view
of the facts which 1 have mentioned, namely that as far as we know, and
in all probability, the authors of the system gave no thought to this
question at all, or that, if they did, they did not express their thoughts
anywhere so as to serve as a guide for us-neither in writing at the time
or in speech. We accordingly have no guidance directly and specifi.cally
on that question from the authors of the mandates system.
In the circumstances it becomes a somewhat artificial task now for the
Court to determine-but one on which the Court must necessarily em
bark-whether, in the light of general indications of what the intent of
the authors of the system would have been on this particular question,
they would have intended the rest of the Mandate to survive in this
truncated form. As 1 indicated before, that is the type of question which
a court may weil, in particular circumstances, have to decide on a pre
ponderance of probability, because there would be no other basis upon
which itcould decide itBut that does not follow, because it is a situation
which is to be entirely distinguished from the question which arises when
the Court is to determine from circumstances whether an inference of an
agreement to operate hetween the parties was, in fact, entered into in
any particular respect. In that instance the principle is that there must
be an inference, which is the only reasonable inference in the circum
stances. It must be a necessary inference. That is the process by which
the Court can then come to its conclusion that parties actually bound
themselves to an obligation.
But where it deals with the converse question which we have here, i.e.,
whether on the lapse of part of an instrument the rest of the instrument
may still stand, it may well be, and it very often happens, that the Court
has to decide on what I have just described as a somewhat artificial basis.
It therefore follows immediately from that situation, Mr. President,
that the mere fact that the Court may now, ex postfacto,find that those
two elements were to be regarded as inseverably connected with one
another, so that if one takes away the supervision then the whole struc
ture must collapse, can surely not by itself afford any indication·as to
what the various interested parties and States must have thought at
various stages of the historical development of this matter, especially in
the years 1945-1946, and especially if we accept the premise that no
positive thought was given to that question in 1919 and 1920 when the
original instruments were forged.
That is one factor, Mr. President, which immediately distinguishes
those two situations.
Another factor which lends emphasis to the distinction is this, that in
the Opinion of 1950 on the South West Africa question, given by this
Court and its .M:embers,it seems to have been fairly generally accepted
that accountability under the Mandate-the duty of a report under Arti
cle 6---could be regarded as severable from the rest'of the mandate insti
tution. That that was the contemplation of the two judges who gave
minority opinions, Sir Arnold McNair and Mr. Justice Read, is quite
apparent from the very result-from the very conclusions-at which
they arrive. They concluded that the Mandate was still in existence, but ARGUMENT OF MR. DE VILLIERS
375
that there was no obligation of reporting and accountability as from the
time of the dissolution of the League.
As far as the majority opinion on that point is concerned, there is
no statement whatsoever to the effect that those two elements were re
'garded by the majority as having been inseverably linked with one
another-no indication really that the majority embarked upon that
inquiry at ali. On the contrary, the reasoning and the manner in which
it was set out in the Opinion, seemed to imply that the majority re
garded the two questions as severable because the majority dealt first,
Mr. President, with the question whether the Mandate could be said to
be stiJl in existence after the dissolution of the League. The Opinion
dealt with the whole of that question without bringing into relationship
with it the problems arising under Article 6 asto the question of a super
visory organ which has fallen away.
It came to its conclusion that the Mandate as an institution was still
in existence, without adverting to the problems regarding Article 6 at ail.
It was only in a separa te part of the Opinion that it proceeded to discuss
the problems relating to Article 6. The indications are, Mr. President,
that the Court, to ali intents and purposes, regarded those two questions
as severable, because if it had approached the matter from the opposite
premise-if it had considered that the question whether the Mandate
was still in existence, was inseverably linked with the question whether
Article 6 was still inexistence-then surely it could not have come to
its conclusion that the Mandate survived without having discussed the
problems regarding Article 6 at ali.
That lends emphasis to the fact, Mr. President, that whatever the con
clusion of this Court may now be on the question of severability or in
severability between Article 6 and the rest of the institution, that that
was not necessarily the contemplation of parties dealing with this ques
tion over the years that have passed, and particularly during the years of
transition and when this dispute took shape.
The Applicants' own attitude, as now presented to this Court, shows
that this assimilation of the probable views of parties, ali along the line
with what the Court is now asked to find upon the question of insever
ability, is an artificial one, that is, in so far as they now place themselves
on the basis of the reasoning in the Barcelona Traction case-of the dis
tinction drawn there-and in so far as their suggestion is that the Man
datory (and this is their contention) is now obliged to report and account
to the General Assembly of the United Nations. They cannot now come
and contend that, if the Mandatory indicated, or if any State indicated,
a contemplation that the Mandate would still be in existence, that that
·necessarily implied an obligation on the part of the Mandat ory to report
and account to the General Assembly of the United Nations because
they themselves say that, if there was no agreement about a substitution
of supervisory organs, it could not have resulted.in a lapse of the obli
gation of accountability. The obligation of accountability would survive,
although dormant. Therefore, Mr. President, no question of lapse of the
Mandate could arise on that premise. The obligation of accountability,
even ifan inseverable part of the Mandate, would still survive and, there
fore,the Mandate as a whole would still survive-only one of the obli
gations would have become a dormant one and no question of the lapse
ofthe old institution could then, on this premise of the Applicants, have
arisen. · SOUTH WEST AFRICA
Surely it then follows that, if somebody under those circumstances
spoke of the Mandate as surviving, and adopted the Applicants' premise
and approach to this whole matter, but yet did not in any way imply
that the Mandatory was liable to report and account to an organ of the
United Nations, it would indicate, Mr. President, that the Applicants'
approach to the events of the period, in so far as they identify the two
questions of lapse ofthe Mandate, or continued existence of the Mandate
and continued existence of accountability to an organ of the United Na·
tions, is fallacious.
It is further shown to be fallacious by the very facts of the period 1945-
1946 and the first years ensuing after those, because the facts show, as
we shall indicate, that there were a number of States which indicated a
view to the effect that the Mandate was still in existence and, at the same
time, indicated that they did not think that there was any obligation of
accountability to organs of the United Nations.
In other words, the manifested attitude of varions States during that
period was that they regarded those two questions as severable. They
accepted the possibility that the Mandate might still be regarded as be
ing in existence, without any accountability to any supervisory organ.
I thought it was necessary to make that distinction clear because, if
one does not do that, then one falls into the confusion to which the Ap
plicants' analysis of the events of 1945-1946 must necessarily lead one.
On that basis, Mr. President, and for those purposes I now proceed to
consider the first phase of this history, namely the events concerning the
foundation of the United Nations and the fust period of its existence up
to, and until, the dissolution of the League. After that I shall consider
the events at the dissolution of the League and turn to a consideration of
further developments in the United Nations in the period thereafter. I
shall deal with the matter with reference to those three phases, the fust
one being the foundation of the United Nations.
Now, Mr. President, these events are dealt with in our pleadings, fairly
extensively, as well as the signifi.cance which we place upon them. I do
not intend to review them all in full. I shall give the Court the references
to the places where we deal with them and shall indicate very briefly,
for the convenience of the Court, what significance we attach thereto.
Firstly,we point out in the pleadings that the establishment of the
-United Nations Organization flowed largely from inter-allied co-operation
during the Second World War. The preliminary negotiations and con
ferences leading up to the drafting and coming into effect of the Charter
.ail took place while the League of Nations still remained in existence. In
fact, the Charter came into effect on 24 October 1945 whereas the League
of Nations was dissolved only in April 1946. We deal with that in the
Counter·Memorial. II, page 32-33. There, Mr. President, we also point
out that there was a substantial difference in the membership of the two
organizations and we give details in that regard, which I need not repeat,
at page 33·
Next, Mr. President, we point out that already at the drafting of the
Charter at San Francisco in the period between20 April and 26 June 1945,
the question of the future of the .Mandate for South West Africa was
raised. On II May 1945 the South African representative made a state
ment in which he gave reasons why the South African delegation claimed
"that the Mandate [for South West Africa] should be terminated and
that the Territory should be incorpor aatpart of the Union of South ARGUMENT OF MR. DE VILLIERS 377
Africa". Those were his words and we quote that statement in full in
our Counter-Memorial, Il, pages 33-34. The statement indicated, Mr.
President,that the matter would not be pursued further at the San Fran
cisco conference, but would be raised .at a future contemplated Peace
Conference where territorial questions would be handled. \Vhat exactly
was contemplated in that regard I do not know, but that was the tenor
of this statement. The statement as far as I have repeated it now, Mr.
President, indicates implicitlythat the Union of South Africa was not
intending to place this Territory under trusteeship and that it did not
want its. participation in the proceedings leading to the drafting of the
Charter to be rnisunderstood as involving any commitment on its part
relative to this new trusteeship system and its possible application to
South West Africa. That, as 1 said, was implicit from that statement
itse1f.
It becomes more emphatically so, however, if one looks at the addition
which we cite in the footnote at page 34 (as the Court will recall, the ver
batim officialrecords do not contain that, but it is contained in our record
and the person who made the statement, Dr. Smit, confirmed to the Re
spondent that he had made it). The words were:
"As stated in the memorandum, this is not a matter 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 held
to have acquiesced in the continuance of the Mandate or the inclu
sion of the territory in any form of trusteeship under the neInt~r
national Organization."
Mr. President, at the adjournment I had quoted from a statement by
a South African representative at the San Francisco Conference. 1 may
just add that in the Counter-Memorial, Il, page 35, there is a quotation
from a st.atement by General Smuts in the next year, on 4 November
1946, in which he explained what the significance and the purpose of
this previous declaration had been. He explained that it was necessary
to ensure-I am quoting from the statement as we have it at page 35-
" ... that, when the proper time arrived for consideration of any
change in the status of the Territory, such consideration should not
be prejudiced by any prior commitment on the part of the Union
Government by virtue of its membership of any organization which
might replace the League of Nations;".
The statement went on to explain that when eventually, in Article 77 of_
the Charter, the word "may" was substituted for "shaH", that made the
application of the trusteeship system "a matter of voluntary agreement",
and then the real necessity of this statement, as it had been seen earlier,
to that extent feil away. But nevertheless, Mr. President, it is significant
that the emphasis falls on the need to have no-
"prior commitment on the part of the Union Govemment by virtue
of its membership of any organization which might replace the
League of Nations".
Now, Mr. President, the next element in this review is that the United
Nations Charter itself made no provision in the future for a mandate. As
stated in the 1950 Opinion-
"... the Charter has contemplated and regulated only a singlesystem, SOUTH WEST AFRICA
the International Trusteeship System. It did not contemplate or
reguJate a co-existing Mandates System."
The quotation is given in the Counter-Memorial, Il, at page 127 and also
the reference. And so, Mr. President, we find that in the provisions of the
Charter not only was there no provision for power on the part of the
United Nations, or any of its organs, to exercise supervisory ~urisdic
tion in respect of mandates as mandates, but there was no prov1sion for
any machinery in that regard either.
lt is also, Mr. President, common cause in this case that there was no
obligation on the mandatory powers to subrnit or conclude trusteeship
agreements-that was a voluntary matter. The reference to my learned
friend's statement on that point is in the verbatim record at page 209,
supra.
We now come to the next important step, Mr. President. Towards the
conclusion of the San Francisco Conference, on 25 June 1945, a Prepara
tory Commission of the United Nations was established, inter alia,to
"formulate recommendations regarding the possible transfer of certain
functions, activitiesand assets of the League of Nations which it might
be considered desirable for the new Organization to take over"-that was
the phraseology used in this regard. The details of the Commission's
activitiesand the resolutions finally adopted by the General Assembly in
that regard are set out in the Counter-Memorial (Il), at pages 35-38.
Although, Mr. President, there is now no contention on the part of the
Applicants that there was a transfer of powers from the League to the
United Nations-no contention any more of a general succession in
respect of powers in that regard-these events-these special arrange
ments here-remain of particular significance, because of the light which
they throw on the intent of everybody concerned, and partictùarly on the
way in which the whole question of mandate was differentiated from the
other matters with which the Conference was dealing. I shall explain in
what particularly significant way that indicated the intentions in regard
tomandate.
The following aspects we see to be important in regard to this aspect
of the matter-the work of the Prepara tory Commission in this regard.
Firstly, there were by sub-committees-the Executive, and so on
proposais that provision should be made for the transfer-I emphazise
the word "transfer"---of functions and activities of the League. That,
after debate, was altered-the phraseology was altered, because the
word "transfer" was-I quote from the debate---one which could "imply
a legal continuity which would not in fact exist"; so careful were the
States concemed to make it clear that there was no legal continuity
between the League of Nations and the United Nations. Consequently,
Mr. President, the terminology was altered, and the new terminology was
"the assumption of responsibility for certain functions and powers" by
the United Nations-we give that at page 38 of the Counter-Memorial.
Nevertheless, Mr. President, although this terminology was altered, there
was a very careftùly devised resolution to provide for such an assumption
of functions and powers-I shaH give sorne of the other significant
aspects of it in a moment-but the most significant aspect of it was that
there was an exception in regard to mandates. Nothing was provïded
for in regard to mandates, and in the circumstances, which I shall deal
with, the only inference is that the omission was a deliberate one.
The next step is, Mr. President, specifically as regards mandates. ARGUMENT OF MR. DE VILLIERS 379
It will be recalled from what we set forth in our pleadings (Counter
Memorial, II, p. 40) that the Executive Committee of the Preparatory
Commission recommended that the General Assembly should create a
temporary trusteeship committee which ·would have the function,
amongst others, 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 hitherto exercised under the Mandates System".
I emphasize those words, Mr. President-"the transfer to the United
Nations" of the functions and responsibilities concemed. And in the
proposéd provisional a&'endaof this temporary trusteeship committee,
the following item was mcluded: "Problems arising from the transfer of
functions in respect of existing mandates from the League of Nations to
the United Nations" (ibid.J-again the same concept, that there was a
necessity for a transfer of functions. The recommendations regarding the
temporary trusteeship committee were, however, as the Court is aware,
not accepted by the Preparatory Commission, but the Commission
replaced them by a recommendation that the General Assembly should
adopt a resolution calling on States administering mandated territories
to submit trusteeships at an early date-that we find in the Counter
Memorial, II, pages 40-41-and nothing, Mr. President, was substituted
in that resolution or in any other resolution for these previous suggestions
of making sorne arrangement in regard to the transfer to the United
Nations of any functions and responsibilities hitherto exercised under the
mandates system.
The next step is that during the discussions preceding this recommen
dation of the Preparatory Commission-in a debate on the same subject
in the Preparatory Commission and also afterwards in the General
Assembly-Respondent's representative repeatedly emphasized that
Respondent was not undertaking to enter into a trusteeship agreement,
but that in its view the interests of the Territory could best be served by
incorporation with South Africa, and that the matter would subsequently
be raised at an appropriate time and on an appropriate occasion. That
we find dealt with in the Counter-Memorial, D, pages 40-42.
Another important factor is that other mandatories also indicated in
debates and in statements that they would not, or might not, submit
or conclude trusteeship agreements in respect of certain mandated
territories. We give the references in Book II of the Counter-Memorial
(II), pages 42 and IJI. The Court will recall that the reference is amongst
others, to the United Kingdom-its intentions in regard to Palestine.
Those intentions were at that stage not entirely clearly formulated as
regards the future, and the United Kingdom found it necessary toreserve
its position entirely in regard to Palestine. In regard to Trans-Jordan it
indicated that there was an intention to !?ive independence to that
territory-again, in other words, a clear intimation that that territory
would not come under the trusteeship system. '
The position with regard to the Pacifie Islands, previously under
Japanese mandate, was entirely uncertain, and the United Kingdom and
France in any case indicated in their statements that, in so far as they
proposed to negotiate in regard to trusteeship agreements, their intention
was subject to the obtaining of satisfactory terms in that regard.
Next, Mr. President, the resolution regarding the conclusion of trustee- SOUTH WEST AFRICA
ship agreements wlùch was eventually adopted by the General Assembly,
indicated that its members-the members of the General Assembly
were weil aware that trusteeship agreements would not be submitted in
respect of ali mandated territories.We find that in Book II of the
Counter-Memorial (II), at pages 43, 131 and 132. At page 43 we give the
text of this relevant portion of the resolution, and we refer there in one
of the paragraphs to these words-
". . . the General Assernbly:
Welcomes the declarations, made by certain States administering
territories now held under mandate, of an intention to negotiate
trusteeship agreements in respect of sorne of those territories... "
In the result, Mr. President, and by rea.Sonof the failure to provide
any specifie provision for the transfer of functions under the mandates,
it follows that such functions could have been transferred only by
applying the general provisions agreed upon by the founders of the
United Nations, that is, under the resolution to which I have referred,
before regarding the assumption of responsibilities for certain functions
and powers. · . _ _·
The Court will recall that there were two resolutions. No. XI was the
'onereferring to the speedy"entering into of trusteeship agreements, and
the other one, regarding the assumption of functions and powers, was
No. XIV. . . .' · . ·.
· Inasmuch as the trusteeship resolution XI made no provision in regard
to mandate a~ mandates, or "the taking over of any functions-the
transfer of any functions or powers in regard to mandates a.Smandates_:.
the oply way in which that function could then have been dealt with, if at
ail, would have been under this other resolution XIV, providing in
general for the taking over or the assumption of responsibility for
functions and powers.'But in this regard, Mr. President, _itissignificant
that the General Assembly in thàt. resolution distinguished between
League functions contained in treaties having a non-political character,
ànd League funétions contained in treaties h!lving a political character.
In regard to non-political ma:tters generally, including tliose falling
under treaties, there was a statement in the resolution XIV of general
willingness on the part of the United Nations to assume those functions·.
We find that in the Counter-Merri.orial, Il, pages 38-39 and again aïpage
130. The text is at pa"ge39, and I read this one portion of the resolution
paragra ph 3 of Part 1:
"3. The General AssetJtbly declares that the United Nations is
\villing in principle, and subject to the provisions of this resolution
and of the Charter of the United Nations, to assume the exercise
of certain functions _andpowers previously entrusted to the League
of Nations, and adopts the following decisions, set forth in A, B, and
C below."
· This resolution of being \villing in principle was qualifi.edin sorne minor
respects which are not relevant to our theme, but subject to those it was
a general willingness and it related to these various matters of a non
political character. The portion A following dealt with. functions per
taining to a Secretariat. The portion B following dealt with functions and
powers of a technical and non-political character, and there the expression
of general willingness was confirmed. The full wording is set out in the
Counter-Memorial, I need not even read it to the .Court. ARGUMENT OF MR. DE VILLIERS
These functions of a non-political character would obviously not include
the function of supervision in regard to mandates, and so the only portion
of the resolution XIV under which that function could possibly fall
would be PartI, 3, C, which read as follows:
·"C. Functions and Powers under Treaties, International Conventions,
Agnements and Other Instruments Having a Political Character
The General Assembly will itself examine, or will submit to.the
appropriate organ of the United Nations, any request from the
parties that the United Nations should assume the exercise of
functions or powers entrustedto the League of Nations by
treaties,internationalconventions,· agreements and other
instruments having a political character. " (II, pp. 39 and
130.) . . ' · · .
In other words, Mr.·President, for the purpoof ~neassumption. of a
supervisory function regarding mandates, if the matter was to be.<l:ealt.
with in terms of this resolution there would have'to be, firstly, a request
from the parties to, or legallyinterein, tl,r~spect mianeates and,
secondly, there would.have'o be a decision acceding to that request by
the General Assembly or the other United Nations organ considetobe
the appropria te one. That was the procedure envisaged for.the assumption
of functions having a political character. . ~ ·'
Mt. President, if one merely looks at the face of this resoluthfe..:.......to
provisions generally regarding these functions under instruments having
a politicalharacter would then seem to .be a resolution which could
cover the'case of mandates if somebody wished to bring it. under that
resolution. However, it beco'mesclear from the history of this resolution
and coripled with resolution XI that that was not the scheme intended
by the pro·posers of.the 'resolution. They did not, in fact, foresee, o,r
contempla te, that mandates would 'be dealt with under this resolution
at a_ll..That emerges very clearly from the history, as I say, from the
history of this resolution read in conjunction with that of resolution XI.
It will be'recalled, Mr. President, that this resolution was based on a
recommendation of the Prepàratqry. Commission,_and this Preparatory
Commission bad in turn· considered a prior report from its Executive
Comn:üttee~ teJindaitCounter~Memo I,rpiael3,6-38~an the
releVant'portion of the Executive Committee's report stated, inter alia,
the following: · ·
.· "Since the questions arising from tli.ewinding up of the Mandat~
system are dealt with in Pàrt III, Chapter IV, no recommendation
on this subject is included here." (Il, p. 36.)
So, Mr. President,he proposaiswhich led up eventually to resolution XIV
were not intended to include any recommendation on the subject of
mandates and the reason given was because thé matter in regard to
mandates .was dealt with in other parts ,of the proposals-thosother
parts being part of the history which led up to resolution XI, the eventual
resolution calling on powerso submit to trusteeship agreements. The
referenceto Part III, Chapter IV, may be .somewhat misleading, but if
one correlates it, it seems that the only portion to which it could refer
was that portion which dealt with the establishment of the trusteeship
system~t portion which contained the proposais regarding a tempo
rary trusteeship committee, which I havealreadyread-anthesuggested
function ofthat committee of advising the. General Assembly on any SOUTH WEST AFRICA
matters that might arise with regard to the transfer to the United
Nations of any functions and responsibilities hitherto exercised under the
mandates system.
As we have shown, Mr. President, those proposais were rejected by
the Preparatory Commission without anything of a similar nature being
substituted in their place.
In other words, therefore, also in regard to resolution XIV we find an
exclusion of an intent to deal with anything in the nature of a transfer
of functions in regardto mandates because it is intended to be dealt with
in the proposais leading to resolution XL In the development of those
proposais leading to resolution XI we fmd the specifie proposais in regard
to the temporary trusteeship committee-those particular functions to
be assigned to it to cope with this problem of providing machinery for
a supervision of a mandate outside of trusteeship itself-providing for a
necessary transfer of functions in that regard. If those proposais are not
acceded to, they fall away; nothing is substituted in their place.
So, Mr. President. in those circumstances, we submit, itis very highly
significantthat there was no express provision anywhere in regard to
future supervision of manda tory administration. Against the background
that I have putto the Court, the fact that there was no such provision has
not only a negative value but also has a positive value. It has the positive
value, 1 submit, of showing by inference that that question was deliber
ately avoided-that the decision to have no agreement in that regard was
a deliberate decision.
The States which drafted and signed the Charter and which were the
foundation members of the United Nations were aware, firstly, that time
would elapse before the coming into effect of the trusteeship system.
Second!y, they were aware of the fact that there was no certainty that ail
mandated territories would end upas trust territories. Yet, Mr. President,
no attempt was made to arrive at the general arrangement, either for
interim supervision, after dissolution of the League, of mandated terriw
tories until they should become trust territories, or for any supervision at
ail in respect of mandated territories which might not become trust
territories. They knew there were these contingencies-that time would
elapse in regard to those that might become trusteeship territories. They
knew there were con~inge haci orne might not end upas trusteeship
territoriesat ali and yet they refrained from making any provision for
supervision to cover those instances--either during the interim period or
at ali, in respect of those that might not end up at ail as trust terri tories.
The United Nations made elaborate provision for the assumption of
certain Leal?lle functions and powers and for transfer to it of League
assets knowmg, however, that its resolution XIV in this regard was not
designed for the transfer of supervisory functions in respect of mandates.
The specifie proposai envisaging investigation and recommendation
regarding possible transfer of functionsunder the mandates system was
rejected and nothinl? was substituted for it. There was no provision
whatsoever for machmery to exercise any supervi.s.ionover mandates as
mandates, in spite of the proposais that were made emphasizing the need
for having such machinery if there was a contemplation of such a provi
sion.
Mr. President, in those circumstances my submission is that the infer
ence is inescapable that these omissions were deliberate omissions. The
situation in toto amounts to a deliberate decision to take no decision in ARGUMENT OF MR. DE VILLIERS
regard to mandates-a delibera te decision to make no provision in regard
to mandates-and when I say "no provision"-! mean no provision,
expressed or implied.
It seems most unlikely, Mr. President, that it would have been pos
sible to achieve a general arrangement applicable to all mandated terri
tories in view of the widely varying circumstances pertaining to them and
the different intentions of the mandatory powers in respect to their fu
ture. The result was that the matter had perforee to be left to a special
arrangement, if any, to be arrived at in each particular case. There was
no provision and everybody knew that there was no provision of a gen
eral nature dealing with ali mandates so asto bring them under super
vision outside of trusteeship.
Mr. President, as 1 understand the Applicants' contention in this
regard, it seems to agree with ours to this extent, that the decision to
have no express provision was a deliberate one. We come into conflict
on the question of tacit consent. The Applicants contend that, despite
the circumstances 1 have just dealt with, there existed a common intent
among ali the members of the United Nations, that the United Nations
would be substituted for the League of Nations as supervisory organ in
respect of mandates.
Now, Mr. President, if that were so, the first question that arises is, if
there was that common intent and if there was ali this specifie express
provision in regard to similar common intent relating to other matters,
why was nothing expressly said in regard to mandates? Ali this elaborate
machinery is created-all these elabora te provisions are made-but there
isthis common intent in regard to mandates that there is no express pro
vision. We find in the verbatim record at page 213, supra, the answer
suggested by the Applicants, namely:
"The United Nations membership n:;sisted and avoided explicit
measures or steps, such as the establishment of a temporary trus
teeship committee, for fear that any such measures or steps might
encourage delay in the completion of trusteeship agreements."
I refer, Mr. President, to the first part of that sentence-"The United
Nations membership resisted and avoided explicit measures or steps".
That shows the agreement to which 1 have just referred-the effect that
the decision to have no express provision was a delibera te one. The reason
given is the fear that any such measures or steps might encourage delay
in the completion of trusteeship agreements.
Now, Mr. President, in so far as this is advanced as a possible explana
tion~ev epnrobable explanation-of the fact that no express provision
was made, I have no quarre! with it at all-it is perfectly acceptable.
It confirms, as 1 have said, that the decision to have no express provision
was a deliberate one.
But, Mr. President, in so far as this explanation is offered as indicating,
or even being consistent with, an intention-a general tacit intention
that there would nevertheless be such a provision-such a transfer of
powers-such supervision to be exercised over mandates not converted
into trusteeships-1 submit that a moment's reflection will show that
that argument is completely without foundation and that it really bor·
ders on the absurd.
'Vhat does it amount to? We know that a tacit, or.;m implied, agree
ment has exactly the same legal force as an express agreement. It brings SOUTH WEST AFRICA
about the same consequence and it cornes into existence on the basis
that everybody is aware of it-everybody is so much aware of it and so
much impressed with this common agreement that exists between every
body in that regard, that they do not trouble to express it because it is
too clear. So both in legal effect, and in regard to the fact that everybody
is aware of it, an implied agreement stands, for present purposes, in
exactly the same position as an express agreement.
So, Mr. President, if the mandatories would be encouraged to delay
in submitting trusteeship agreements by the express transfer to the
United Nations of supervisory functions in respect of mandates, then
they would surely be equally encouraged by a tacit agreement, clearly
concluded and accepted by everybody concerned. The only difference
between those two agreements would lie in their manner of proof in the
event of a later disagreement about the matter-in the event of a later
conflict or dispute. The express agreement would be an easier one to
prove than the tacit, or implied, agreement.
· Therefore, Mr. President, if the Applicants' argument were to have
any validity at ail, it would amo"unt to this, that those members of the
United Nations which were not keen to encourage delay in the sub
mission of trusteeship agreements-which preferred to conclude an agree
ment which is difficult to prove rather than one which is easy to prove
would do that as a measure in order to discourage delay in the concluding
of the trusteeship agreements.
But now, how would that suit their purpose, Mr. President? Appar
ently, if I understand the Applicants correctly, or if it is to assist their
argument at ali, if it should suit their (i.e., the United Nations Mem
bers') purpose later that there was an agreement, then they would say
there was an agreement. If it would suit their purpose to say there was
no agreement, then they would say there was no agreement-in other
words, a suggestion of rank dishonesty of purpose. The suggestion is
apparent! y that if it became clear that a large number or ali of the man
datory powers concerned were taking steps, or were intending to place the
territories under trusteeship, then the attitude takcn in regard tb the
mandat ory powers would be: :·vou are not under supervision at the
moment. Therefore you ought to expedite the submission of trusteeship
agreements." This would appear to be the implication of the suggestion
made on behalf of the Applicants. On the other band, in the case of a
mandatory power which might, in regard to a specifie territory,. decide
not to place it under trusteeship, then the powers that be would have
to be in the position of saying to that power: "No, there was a tacit
agreement, as we ali know. It was generally agreed that although we do
not make any express provision there would be a transfer of powers in
respect of Mandatories, and you would have to fall under the supervision
of the United Nations even though you do not submit a trusteeship
agreement.'' These would appear to be the implications of this suggestion
on behalf of the Applicants if it were to make any sense at ail.
But, Mr. President, even on that basis it makes no sense, in my sub
mission, because how could this scheming take place without the manda
tory powers knowing aboutit, and how could there be this scheme which
was intended to be used against the mandatory powers and at the same
time, although the mandatory powers do not know about it, there is
general agreement. between aU concerned so clear as not to need expres
sion at all, to the effect that there would be a transfer of supervisory ARGUMENT OF MR. DE VILLIERS
powers and an obligation of the manda tories concemed to submit to it?
Surely it does not make any sense. If there was in fact a tacit agreement,
then everybody concemed would know that there was such a tacit agree
ment, and then that in itself would discourage the mandatories to an
equal extent, orto no extent at ali, depending on the circumstances, just
as would be the case with an express agreement. \Vhether the agreement
was express or tacit, therefore, would make no difference whatsoever in
regard to this factor mentioned by the Applicants, namely the fear that
measures or steps might encourage delay in the completion of trusteeship
agreements. We cannat admit, with respect, that there would have been
any such intention of rank dishonesty on the part of United Nations
Members as seems to be implicit in this suggestion. We cannot accept, on
the other band, that it would have assisted them at ali. If there was a
tacit agreement, everyone must have known about it, and this could
have brought them nowhere.
The only suggestion, therefore, made by the Applicants, Mr. President
-the only reason why they say that the omission to have provision was
deliberate only in respect of express provision, but that it nevertheless
provided scope for an implied agreement-the only reason advanced by
the Applicants is completely without foundation. 1 submit the only con
clusion that one can come to is that the deliberateness of the decision to
have no provision extended both to express provision and to tacit or
implied provision.
That is indeed, Mr. President, the logical conclusion to be drawn from
the very practical premise which the Applicants here suggest-the pre
mise that there was a desire not to encourage delay in the submission of
trusteeship agreements. Accepting that there was such a desire, the logi
cal conclusion would be that the Members of the United Nations were
induced to conclude no agreement at ali regarding transfer of powers in
regard to mandates, or exercise of supervision on mandates outside of
trusteeship. That would be the logical conclusion of a decision not to
encourage delay in the submission of trusteeship agreements. It would
then enable the United Nations Members to say that the supervisory
functions of the League had fallen away and they would then have an
added argument for urging the speedy submission on the part of every
body concemed of trusteeship agreements.
That, Mr. President, was the view adopted in the rg6z joint opinion
by the honourable President and Sir Gerald Fitzmaurice. 1 would like
to quote from page 539 of the report, leading on to page 540, a passage
with which 1 very respectfully wish to associate myself and the conten
tions on behalf of the Respondent:
"Our concem here is simply to show that the two Assembli~;
[the General Assembly of the United Nations and the League
Assembly at its final session] were texcept for Article 73 of the
Charter) unwilling to provide in any specifie way for the conse
quences of the termination of the League and its membership, or
for a possible eventual failure to bring a mandated territory into
trusteeship. In this lies the key to the whole matter.
lt is the key to the whole matter because it is strikingly evident
that the two Assemblies (and the Applicant States were Members
of both) relied, and preferredto rely, on the hope or expectation that
the mandated territories would eventually be brought into trust
eeship. \Vhether this was a reasonable assumption in the case of SOUTH WEST AFRICA
South West Africa, considering the declarations that were made on
behalf of the Union Government, is another matter. The fact
remains that it was relied upon, in the full knowledge of facts from
which it was manifest that the expectation might not be realized,
and of the fact that the 1\iandatory was under no legal obligation
in the matter.
It seems tous fairly clear as a matter of reasonable inference that
an important part of the reason for this attitude was the desire to
avoid even the suggestion that any mandated territory might not
be brought into trusteeship; or, by providing for the situation that
might arise if that was not done {and if the League had in the mean
time been russolved) to appear to be countenancing such a situation
by providing for it, or to be giving grounds on the basis of which
any Mandatory could contend that, express provision having been
made for continuing the Mandates as Mandates, no further action
was required.
In short, given the view that they took of the whole matter, those
concemed thought it unnecessary to provide for this situation and
better policy not to. This course having been chosen, and the possi
ble consequences it entailed accepted, there is no legal principle
which would enable a Court of law to put the dock back and, by
judicial action, make provision for a case which those concerned
elected not to deal with, for reasons which appeared to them good
and sufficient at the time."
That, with respect, Mr. President, we submn w oe file only logical
inference one can draw from the events which I have tried to depict to
the Court this morning-the events relative to the formation of the
United Nations and these initial decisions taken in regard to the assump
tion of functions in various respects,and the creation of the trusteeship
system.
There is one aspect of the Applicants' argument in thisre~ar towhich
I must still make brief reference; that is, in the verbatrm record at
pages I52-I53, supra. I read from it a statement of my Iearned friend,
Mr. Moore:
"I emphasize, Mr. President, that no argument was presemea oy
any delegate to the Preparatory Commission that the proposai for
a temporaty trusteeship committee was not acceptable on the
grounds that the United Nations had no supervisory authority over
mandated territories. Rather, it seems to have been assumed by the
Preparatory Commission that the United Nations did have such
supervisory authority, but that the most expedient method, not the
only method, for giving effect to such authority was the rapid con
clusion of trusteeship agreements and the formation of the Trustee
ship Council."
Mr. President, my leamed friend did not indicate in any way the
source from which he seeks to derive this interpretation of the view of
the deliberating States and delegates concerned. On the contrary, the
indications are that they considered that there was no provision in law
for any such supervisory powers on the part of United Nations organs
no provision for any machinery in that regard-and that if there was a
desireto exercise such supervision, special provision had to be made for it.
That indication is apparent from a number of circumstances, including ARGUMENT OF MR. DE VILLIERS
the very wording of these proposais that were made in regard to a pos
sibletemporary trusteeship committee. The words which 1 have empha
sized,the words "with regard to the transfer to the United Nations of any
functions and responsibilities hitherto exercised under the Mandates
System" (Counter-Memorial, Il, p. 40) emphasized, Mr. President, the
apparent acknowledgment of a need to have such transfer if itwere
wished to exercise such functions on the United Nations side. Again, in
the provisional agenda item appears the wording "Problems arising from
the Transfer of Functions in respect of Existing Mandates from the
League of Nations to the United Nations" (ibid.). Those words in them
selves emphasize the contemplation of a need to make special arrange
ment in that regard. The contemplation in that regard is further empha
sized exactly by the fact that all these other elaborate resolutions and
provisions were arrived at in order to make provision for transfer of
assets from the one Organization to the other and also for the transfer
of functions in other respects, non-political, and sorne political respects,
the word "transfer" later being altered to one of assumption of the func
tionsand powers concerned.
The mere fact that there was all this concern and special trouble taken
to come to these specifie arrangements in regard to ali these matters,
emphasizes what is, in any event, inherent as a probability in the old
situation, namely that everybody concerned knew 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.
1 have not found any argument submitted by the Applicants which
points to any evidential factor on the record tending to show the opposite.
1 conclude this survey, therefore, Mr. President, with the submis5ion
that there was very defmitely no provision, either express or implied,
for a transfer of supervisory functions in regard to mandates, or for the
exercise of any supervision over mandates, as mandates, outside of
trusteeship. I submit that this result was arrived at by deliberate deci
sion, and that everybody concerned knew that that was the position.
That is a very important factor to be borne in mind as a background to
the next phase of the history relating to the final session of the League
Assembly, and the dissolution of the League.
Before 1 come to that, Mr. President, there is one more aspect relating
to the foundation of the United Nations and the possible bearing of the
Charter and arrangements in regard to the United Nations on the ques
tion now before the Court. That is the question of the interpretation now
put on Article So, paragraph r, by my learned friends-the interpreta
tion put on it, or the significance attached toit.
1 need not read the text of the Article to the Court again, the Court
will recall that 1 have read it before, and will know the terms of it very
weiL
The Court will recall that, after apologizing "for the incompleteness
of presentation of this question during the preliminary objections phase
of these cases" (p. 223,suPra) my learned friend expressed his agreement
with a proposition, stated by the honourable President of the Court and
Sir Gerald Fitzmaurice, in their joint dissenting opinion in 1962, in the
following words:
''The sole purpose of the Article was to prevent any provision of SOUTH WEST AFRICA
Chapter XII of the Charter being construed so as to alter existing
rightspriortoacertain event.'' (I.C.J. Reports rg62, p. 516, f. n. r.)
(Ibid.)
My learned friend indicated that they associate themselves with that
interpretation, but they still contend, Mr. President, that the Article
may be invoked to show the understanding of the authors of the Charter
-the pre-supposition in regard to continued existence of rights under
the mandates, even after the dissolution of the League.
In order to evaluate this argument properly, Mr. President, one must
have sorne regard to the chronology of events during this relevant period.
As we have pointed out, the Charter was drafted and signed during the
San Francisco Conference, between 25 April 1945 and 26 June 1945-in
other words, sorne 10 to 12 months prior to the dissolution of the League.
We give that in the Counter-Memorial, Il, at page 32.
The Charter came into force on 24 October 1945, as we stated in the
Counter-Memorial, U, pages 32-33-in other words, sorne six months
prior to the dissolution of theLea~;ue.
It is, therefore, Mr. President, qmte understandable that, at the signing
of the Charter and its coming into force, the authors of the Charter would
have contemplated the existence of rights and obligations under the
Mandate. The League was still in existence. It had not become dissolved,
and nobody was suggesting, and we have never contended, that prior to
the dissolution of the League, ri~h ts obligations under the Mandate
came to be altered. There is nothmg inconsistent with our contention in
a contemplation on the part of the authors of the Charter, at the time
when the United Nations was forrned, and at the time when the Charter
came into effect, that there were unaltered rights and obligations under
mandates-unaltered, that is, by any of the provisions of Chapter XII
of the Charter, because that was what Article 8o (r) was dealing with.
We must emphasize, Mr. President, that Article 8o (r) could clearly
do no more than indicate which rights were, in the views of its authors,
in existence as at the stage of its drafting and possibly the stage of its
coming into effect. Nevertheless, we find that my learned friend for the
Applicants said:
"... the inclusion of Article 8o, paragraph 1, in the Charter serves
to confirm the understanding of the authors of the Charter that
certain rights, including those under mandates, did continue to
exist, notwithstanding the dissolution of the League". (P. 223, supra.)
Later, Mr. President, in the same record we fi.ndthe following:
"... the authors of the Charter assumed that mandate rights, bath
of States and of peoples, continued, notwithstanding the dissolution
of the League, and that the authors of the Charter, in Article 8o,
paragraph I, sought to make clear that Chapter XII was not to be
construed in a manner which would alter, in any way whatsoever,
such rights which continue to exist by force of other instruments
or undertakings". (P. 226, supra.)
Now, Mr. President, taking these submissions, or contentions, as they
stand literally, the only way in which they would appear to make sense,
with respect, would be to assume that there must be sorne misapprehen
sion onthe part of my leamed friend as to the proper sequence of events.
because otherwise they do not seem to make sense. ARGUMENT OF MR. DE VILLIERS
It is not clear how there could have been a contemplation, at the time
when the Charter came into existence or when it was being forged, of
any pre-supposition regarding the position after the dissolution of the
League. That, surely, is not something which could be derived from
Article So (1) itself, particulaily not in the light of the Applicants'
admission that it is to be construed as any clause of that nature. It is a
mere aid to interpretation and merely makes it clcar that certain provi
sions of the particular instrument are not to be construed as altering an
existing position. That existing position was as at that date, and the
wording of the Article certain! y, and nothing which has been advanced in
regard to its background or surrounding circumstances, would suggest
any contemplation that this Article of the Charter, or anything in the
contemplation of its authors, would have any effect on what would
become of mandates as from the dissolution of the League-an event
which was not yet there, and was yet to come.
The only way in which one could make sense, with respect, of this
submission, would be to suppose that it is intended to mean something
more than it literally says. In other words, that it is intended to mean
that Article So (1)in sorne way shows a contemplation on the part of the
authors of the Charter, that rights under mandates would, in fact, remain
unchanged until trusteeship agreements were entered into-that they
contemplated that at the time of providing for Article 80 (1)-in other
words, a sort of tacit agreement amongst themselves on that point.
Now, Mr. President, in the first place, it seems most inherently un
likely that the authors of the Charter would have intended to make a
provision of that kind, in regard to matters which really concemed
relationships of certain States with another organization-an organiza
tion of which all the authors of the Charter were not members, and also
an organization which included members which were not Members of the
United Nations or included amongst the authors of the Charter.
It would have been a most unusual provision, quite apart from an
unlikely one, and if, Mr. President, it was the intention to have such an
unusual provision, then one would surely have expected it to have been
set forth with cxplicit clarity, in ordero have no mistake aboutit in the
future. But, Mr. President, apart from the fact that it would be a most
unusual provision, that argument would completely ignore the wording
and the purpose of Article So itself. The Article dealt only with rights
existing at a particular time, that is, at the time of the drafting or the
coming into force of the Charter. Consequently, the Article itself shows
no contemplation other than that certain rights were in existence as at
that stage.
As to the future of these rights, the Article was only concemed with
making it clear that the provisions of Chapter XII would not affect
them unless and until trusteeship agreements, in terms of the said
Chapter, were concluded. That was the only indication which the Article
gave of being concerned with the futureof those rights and obligations
at an.
That, clearly, does not show a contemplation that nothing would
affect those rights until trusteeship agreements were concluded. Purely
as a matter of language, Mr. President, and as a matter of logic, no
contemplation to this effect can be derived from the Article, nor from the
circumstances surrounding its creation. I would like in that regard to
refer the Court to a passage in the joint dissenting opinion, to which I SOUTH WEST AFRICA
referred before, of the honourable President and Judge Sir Gerald
Fitzmaurice, in the footnote on page sr6:
"What Article So (r) does not say is as important as what it does
say. lt does not say that rights shall continue. lt does not provide
that these rights shaH not thereafter, until trusteeship agreements
have been concluded, be subject to the operation of law, or that
they shall not terminate or be extinguished by effiuxion of time,
failure of purpose, impossibility of performance or for any other
reason. It does not say these rights shaH not be altered or be subject
to alteration even by normal legal processes." (I.C.]. Reports I962,
p. sr6, f. n. I.)
Mr. President, the facts themselves belie any conclusion that there was
a contemplation of such an unusual nature on the part of the authors of
the Charter. It must have been clear to all concerned that, at least in
sorne of the mandated territories, the mandatory regime would or might
be altered or terminated, other than by placing the territories concerned
under trusteeship.
Apart from South West Africa, in respect of which Respondent had
already, at the San Francisco Conference, made clear its intentions in
that regard-its desire of obtaining recognition of a termination of the
Mandate by incorporating the Territory with the Union-there were also
the cases of Palestine and Transjordan, to which I have referred, in
respect of which the Mandates were intended to be terminated although
no trusteeship agreement was contemplated, or was in fact subsequently
concluded.
Suppose, Mr. President, with respect, that, prior to the dissolution of
the League, ali the interested parties within the League had come to the
conclusion that the best way of dealing with the whole mandate system
was to have an express cancellation of all the mandates, so that there
could be a dean start-so that there was no carry-over-no remnant of
the mandates system at ali. That would put everything in a position of
suspense again and from there new agreements would have to be made,
ifat aU, under the system and under the Charter of the United Nations.
What 1 suggest in that regard is not a completely fanciful possibility.
One knows that it was a practical idea to which sorne consideration was
given in certain quarters, at a particular stage. The idea in the end did not
prevail, but suppose it had prevailed, and suppose it had been decided in
the League quarters that that was the practical way of approaching the
matter, and that there had been express agreements to cancel ail the
mandates, surely, 1\frPresident, Article So, paragraph r, or any contem
plation lying behind it, could not have affected that matter. Surely, as a
matter of fact, as a matter of probability, there could have been no
intention at the time when Article So, paragraph r, was brought into
existence, to try to forestall, or cope with, a possible situation of that
kind-a possible decision on the part of the interested parties in the
League to deal with the matter in that particular way.
Mr. President, the same misapprehension and lack of logic in regard to
chronology apparently underlies the Applicants' repeated references to
statements made by South African delegates at the fust meeting of the
General Assembly-the first part of the first meeting. We find a reference
to that in the verbatim record at page r64, supra, and again at page 224,
supra. It is in both cases a reference to the same statement, as far as I ARGUMENT OF MR. DE VILLIERS 391
recall. There is a quotation, on page 224 of the record, from a statement
by Respondent's delegate to the United Nations General Assembly
that-
" ... arrangements are now in train for ... consultations to take
place and, until they have been concluded, the South African
Government must reserve its position concerning the future of the
mandate, together with its right of full liberty of action, as provided
for inparagraph 1 of Article 8o of the Charter".
That, again, Mr. President, is a reference to a statement which was made
before the dissolution of the League. The statement was, in fact, made
in January 1946-we find the reference to that in the Counter-Memorial,
Il, at page 41-in other words, still sorne months prior to the dissolution
of the League. At that stage the only question was whether the Charter
had in any way affected rights under the Mandate. The effect of the
dissolution of the League, which was at that stage still in the future,
although contemplatcd, was, for that reason, not an actual issue. The
League Members still had to decide for themselves in what exact manner
they were going to deal with the mandates.
No doubt, l\lr,President, if the matter had arisen, the opinion might
well have been expressed that the effect on the mandates of the projected
dissolution of the League would depend on the arrangements to be made,
or to be omitted to be made, during the final session of the League.
In any event, Mr. President, if one looks at the provisions of Article So,
paragraph 1, merely the negative effect that certain provisions of the
Charter were not to be construed as altering or effecting rights, leads at
most to a contemplation that certain rights would, but for normal
terminations, stay in existence. How could an article of that kind possibly
cope with a problem of a substitution of supervisory organs in respect of
an obligation such as that incurred by the mandatory under Article 6.
On my learned friend's contention, as well as on our contention, a new
agreement was necessary-a new consent was necessary-with a view to
affecting such a substitution in order to keep such an obligation either
alive or operative, as the case might be. Surely nothing in Article So, and
nothing indicated as a possible contemplation of its authors, could by
any stretch of the imagination be said to have been intended to cope with
a problem of that kind.
Our submission is, therefore, in conclusion, that no agreement, express
or implied, was embodied in the Charter, or otherwise concluded by the
founders or Members of the United Nations, at any stage prior to April
1946, whereby the United Nations assumed the supervisory functions of
the League in respect of mandates, or whereby any mandatory was
rendered obliged to report and account, outside of trusteeship.
We can proceed now to a consideration of the later events which
succeeded these.
[Public hearing of 5 April I965]
Mr. President, and honourable Members, at the adjournment on
Frida y 1 had just concluded a review of events during the establishment
of the United Nations Organization and during the first few months of its
existence, up to and including the time immediately prior to the last
session of the League Assembly in April 1946. The purpose of the enquiry392 SOUTH WEST AFRICA
was to ascertain whether there was any general agreement between
interested parties, includingthe mandatories in general and the Respon
dent in particular, to the effect that the United Nations would exercise
supervisory powers over mandatory administration outside of trustee
ship. We concluded the review, Mr. President, with the submission that-
" ... no agreement, express or implied, was embodied in the Charter,
or otherwise concluded by the founders or Members of the United
Nations, at any stage prior to April 1946, whereby the United
Nations assumed the supervisory functions of the League in respect
of mandates, or whereby any mandatory was rendered obliged
to report and account, outside of trusteeship". (P. 391, supra.)
Earlier, we had contended thatthat result was arrived at, not by accident,
but by design. By deliberate design the Members of the United Nations
preferred not to make any provision for supervision of mandatory
administration outside of trusteeship, and we indicated the reasons why
we made that submission to the Court on the basis of a review of the
relevant facts.
We now come to the next phase of the facts in the historical develop
ment, namely those pertaining to the final session of the Assembly of the
League of Nations in April 1946, and the purpose of the enquiry is the
same as before.
Previously, Mr. President, the Applicants gave very little attention
to this last session of the League Assembly. ln the pleadings that have
been filed, and in their oral argument in regard to the Preliminary
Objections in rg62, they hardly dealt with these events at ali and they,
in fact, relied on arguments which reduced the significance of events at
this particular session-arguments which were aimed at avoiding the
significance of these events.
Now, the Applicants do make a serions attempt to meet our arguments
based on the events at the last session of the League, and they do attempt
to derive from those events support for their contention of consent, on
the Respondent's part, to accepta substitution of supervisory organs
consent which they now acknowledge to be a necessary element for the
purposes of their test. The Applicants now contend, Mr. President, that
all the parties conccrned manifested an intent to substitute the United
Nations for the League as the supervisory organ in respect of mandates.
Respondent's contention is, as it has always been, that the very opposite
is the case, viz. that the States that attended the session showed a clear
contemplation that no such substitution would take place.
We submit that it is not only a case of the Applicants being unable to
justify a necessary inference of tacit agreement, as they are required to
do in order to establishtheir contention. We submit that the facts show
the opposite. They show an absence of such an agreement, and they show
an overwhelming understanding that prior to new arrangements, which
might be agreed upon between the mandatories and the United Nations,
there would be no accountability under the mandates to the United
Nations, and also that there would, in fact, be no accounting under the
mandate by any mandatory. That is what the facts in our submission
show.
Now, Mr. President, it must be recalled at the outset (as I pointed out
on Frida y) that at the time when this final meeting of the Assembly of the
League took place, the United Nations had already been in operation for ARGUMENT OF MR. DE VILLIERS 393
sorne months. Although the membership of the two organizations differed
in substantial respects, the same States formed the majority in both
organizations-both in the United Nations and in the League of Nations.
lt must further be borne in mind, Mr. President, that for resolutions
of the League Assembly unanimity was required. These factors, taken
together, forma very important background to the deliberations at the
final session of the League Assembly.
We indicated, in our review of events at the formation of the United
Nations and during the first months of its existence, that the Members
of this new Organization deliberately abstained from making any provi
sion for a transfer to the United Nations of supervisory functions in
respect of mandates, and we submit, as I have said, that that result was
arrived at deliberately.
In the circumstances, Mr. President, one could hardly expect that a
few months later an Organization consisting, as far as the majority was
concerned, of the same States, would, without more ado and without
very special reason, have come to a diametrically opposite conclusion as
to the ensuing position, they wanted, after the dissolution of the League.
It was not impossible, of course, that there could have been a complete
turnabout as far as those intentions were concerned, but if there had been
such a remarkable turnabout in intention, one would at least have
expected that there would have been a special reason for it-a special
reason leading to specifie discussion of the subject, and leading eventually
to an explicit and unmistakable resolution on that subject, so that
everybody could know where they stood.
But, in fact, Mr. President, in our submission, an examination of the
events will show that the League Assembly, just as the founders of the
United Nations, deliberately abstained from making any provision
whatsoever for a transfer of supervisory functions. They knew very well
that that was the result at which they had arrived deliberately, and we
submit that the picture in that regard is, in the case of these final events
at the last session of the League Assembly, if anything, even more clear
than in the case of the United Nations during the first few months of its
existence.
At this final session of the League Assembly, the fust occasion on
which the question of the future of mandates was raised, was the plenary
meeting on the morning of 9 April, and the delegate who raised it was the
representative of the United Kingdom. We give a relevant extract from
his statement in the Counter-Memorial, II, at page 46.
Mr. President, it will be recalled that, at that time, Transjordan had
already become independent, and the gist of the statement, as we gave it,
at the page which 1 have mentioned, was to the effect that, pending
fresh arrangements about Palestine, the position of which was still
uncertain, and pending satisfactory terms of trusteeship for the other
territories under British mandate at the time, "it is the intention of
His Majesty's Government in the United Kingdom to continue to
administer these territories in accordance with the general principles of
the existing mandates".
1 wish to invite attention at once to the words "it is the intention".
1 submit, Mr. President, that they do not bear out the suggestion that
there was any contemplation of a binding obligation in law. I am merely
painting that out in passing, because it was an element which was neces
sary for the purposes of the Applicants' argument to show that what SOUTH WEST AFRICA
394
was said by mandatories there, in the particular context, was intended
to be an expression of a legal undertaking-a legal commitment-on
the part of mandatories to the other members of the League. I submit
that the wording in itself certainly does not bear out that construction.
However, Mr. President, the major dispute between the Parties hinges
on the interpretation of the words "the general principles of the existing
mandates", the intention being expressed to continue during this interim
period to administer these territories in accordance with those general
principles. This phrase was not explained or defined on that particular
occasion, but the Applicants now suggest, Mr. President, that those words
must have. included the obligation of accountability. and they suggest
that since the United Nations was then the only body capable of exer
cising international supervision, this statement, like the statements of
the other mandatories, must be taken to involve a promise or consent to
submit reports to the United Nations. That they make these contentions
with reference to ali the mandatories, and not only with reference to the
Respondent, is abundantly clear from the way in which their submissions
are phrased in this regard.
1wish to refer the Court fust to the verbatim record at page 149, supra.
This is a contention by my learned friend, Mr. Moore, following immedi
ately upon extensive quotations from the declarations made by aU the
manda tories on that occasion. The contention reads as follows:
"The declarations by each of the mandatory powers make it
abundantly clear that the general intention and understanding was
that ali of the obligations of the mandate agreements remained in
force pending the conclusion of trusteeship agreements."
Later on the same page of that record, in relating this general sub
mission specifically to the case of the Respondent, my learned friend
made it clear that when he spoke of ali the obligations of the mandate
agreements in this regard he included the obligations under Articles 6
and 7 thereof. This point is also made explicitly clear by my learned
friend Mr. Gross in the verbatim record at page 212, supra:
"The Mandatories, including Respondent, accepted the continu
ance of the existing regimes, including the substitution of the United
Nations for the League as the supervisory organ, for what everyone
concerned hoped would be a short, transitional period."
So that would include, Mr. President, the representative of the United
Kingdom.
Mr. President, if that bad been the intention of the representative of
the United Kingdom, the question immediately arises, why did he not
say so? Vlhy did he use these vague, general words, viz. "in accordance
with the general principles of the existing mandates"? And why did he
relatethem only to the question of the administration of the territories
and not to anything falling outside the concept of administration, such
as the concept of accountability or the rendering of reports?
Mr. President, in fact, in my submission, those words in no way sup
port the Applicants' contention. If the intention was to comply in full
with all the obligations prescribed in the various British mandates, in
cluding 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. At ARGUMENT OF MRo DE VILLIERS 395
least, Mr. President, if there bad been any contemplation in regard to
reporting and accounting, one would have expected the speaker to advert
to the problem which would arise by reason of the fact that the only
supervisory body mentioned in the mandate instrument, namely the
Council of the League, would cease to be in existence. He would at least
have adverted to that problem, and he would have indicated in what
manner there could still be compliance with that obligation of account
ability, as defined with reference to that l?articular supervisory organ.
But we find nothing of the kind, Mr. President. We find that the word
ing was confined to the question of administering these territories, and
the basis upon which that was to occur, was said to be "in accordance
with the general principles of the existing mandates". The wording of
that statement itself, Mr. President, is therefore, in my submission, de
structive of the Applicants' contention.
But the matter goes very much further than the wording alone. There
were surrounding and subsequent events which threw very clear light on
the actual intent of the British delegate in using those words. In the very
next year the United Nations appointed the United Nations Special
Committee on Palestine and they, in their report, said, with reference to
this particular passage, how it was in their view to be understood. One
finds the passage in the report, in the Counter-Memorial, D, at page 137.
It reads:
"Following the Second World War, the establishment of the Uni
ted Nations in 1945 and the dissolution of the League of Nations
the following year opened a new phase in the history of the manda
tory regime [this is now with reference to Palestine]. The mandatory
Power, in the absence of the League and its Permanent Mandates
Commission, had no international authority to which it might submit
reports and generally account for the exercise of its responsibilities
in accordance with the terms of the Mandate. Having this in mind,
at the final session of the League Assembly, the United Kingdom
representative declared that Palestine would be adrninistered 'in
accordance with the general principles' of the existing Mandate
until 'fresh arrangements had been reached' ." (Italics added.)
=
Mr. President, this was a report by an II-nation committee. It was
not a report by the United Kingdom itself, but in the first place it seems
most unlikely that the committee would have given this interpretation
of the words used by the British delegate, unless they had obtained that
explanation at the very source of the statement, i.e., from the delegate
himself, or from the British authorities. That seems inherently unlikely.
Apart from that, Mr. President, even if we should assume that they did
not get the information directly from British sources, one must bear
in mind that there was in fact never any repudiation by the British
authorities of this explanation given by the committee.
On the contrary, the conduct of the British authorities in this regard
was entirely consistent with this explanation given by the committee,
because one finds that, in fact, the United Kingdom withdrew from the
administration of Palestine as late às 15 May 1948. That was nearly three
years after the Charter came into force and more than two years after
the dissolution of the League, and during the whole of that period no
report under the mandate was in fact made to the United Nations by
the United Kingdom. In other words, this conduct entirely confirms the SOUTH :WEST AFRICA
interpretation put upon that initial statement at the final session of the
League Assembly by this Committee, the interpretation to the effect
that there was an intimation that in the interim period there would be
no reporting and accounting under the mandate.
At the very least, Mr. President, this interpretation put upon the
statement by the Special Committee shows what was the natural inter
pretation of that statement in its context and historical setting. And it
shows more than that. It shows the way in which other interested States
actually understood the statement made on behalf of the mandatory
power, in this case the United Kingdom.
The States which were members of this Committee are mentioned in
the Counter-Memorial, II, at page 14r. They were Australia, Canada,
India, the Netherlands, Uruguay, Czechoslovakia, Guatemala, Iran, Peru,
Sweden and Yugoslavia. We have checked, Mr. President, and we find
that nine of these States were Members of the League at the time of its
dissolution. They were therefore represented on the occasion when the
statement was made, and this is the clearest evidence one can get of the
manner in which the expressions of intent on the part of the mandatory
powers were in fact understood by the other States present.
(Mr. President, I could give the Court a reference indicating where we
got that figure of nine in regard to membership. We have not got it here,
unfortunately, but 1 will give it to the Court on a later occasion.)
I submit, therefore, Mr. President, that this British statement alone,
taken on the basis of what it meant in its setting-in its context-and
having regard to these further events which throw a light on what was
intended to be conveyed by that statement, and on how that statement
was understood-then that statement is in itself totally destructive of
the Applicants' contention. How can the Applicants under these circum
stances say that the agreement-the general consensus for which they
contend-is consistent with all the proved facts and inconsistent with
any other reasonable inference from the facts?
The next delegate, Mr. President, to speak on the question of mandates
was the South African representative. That was later on the morning of
9 April 1946.
I refer to the quotation of his statement at pages 46-47 of the Counter
Memorial Il, and I submit, Mr. President, that from this statement itself
clearly emerges exactly the same contemplation as we found in the case
of the statement of the United Kingdom. The statement began by re
ferring tothe intimations that had already been given, viz., that, on a
future occasion, there would be a presentation of a case on behalf of
South Africa to the effect that the Mandate for South West Africa was
to be terminated and that the Territory was to be incorporated within
the Union. The statement intimated that the intention of the Union
Govemment was to raise this case at the forthcoming session of the
United Nations General Assembly in New York.
Then the statement proceeded to deal with what would happen in the
meantime, and 1 proceed to read from that point:
"In the meantime the Union will continue toadminister the terri
tory scrupulously in accordance with the obligations of the mandate,
for the advancement and promotion of the interests of the inhabi
tants, as she has done during the past six years when meetings of
the Mandates Commission could not be held." (II, p. 47-) ARGUMENT OF MR. DE VILLIERS 397
There we find, l\fr. President, the statement of intent on the part of the
Union Govemment. This is its main statement of intent. The further
portion of the statement goes on to explain in more detail.what is meant
by this statement of intent. The statement of intent will be seen to be
concemed again with the question of administration of the Territory, i.e.,
it wille"scrupulouslyin accordance with the obligations of the Mandate,
for the advancement and promotion of the interests of the inhabitants"
clearly confined to that alone. To make it doubly clear that this was not
intended to refer to anything beyond that concept-to anything of the
nature of reporting or accountability-the statement proceeds to add
"as she has done during the past six years when meetings of the Mandates
Commission could not be held". Nothing could be clearer than that, Mr.
President.
The rest of the statement, as I have said, is clearly explanatory and
has to be read in that context. It reads as follows:
"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
compliance with the letter of the mandate." (ll,p. 47.)
It is again, in the context of what has just gone before, a reference to
an intent to continue to administer the Territory as had been done dur
ing the previous years when meetings of the Permanent Mandates Com
mission could not be held. This 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.
The statement proceeds:
"The Union Government will nevertheless regard the dissolution of
the League as in no way diminishing its obligations under the man
date, 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."
(Ibid.)
The Applicants in this regard, Mr. President, place reliance on the
words "the Union Government will nevertheless regard the dissolution
of the League as in no way diminishing its obligations under the man
date ... " l\fr. President, they contend that this expression is to be taken
not only as relating to obligations regarding administration of the Terri
tory for the benefit of the inhabitants, but also, Mr. President, as relating
to obligations to account and report. But surely the fust part of the
statement, where the ambit of the statement of intent has been indicated
so clearly, rulesout any construction of that kind. It is quite clear that
where the statement speaks of the obligations of the Mandate, it means
obligations relating to the advancement and promotion of the interests
of the inhabitants-relating, in other words, exclusively to the concept
of administration of the Territory.
Let me put it this way to the Court, Mr. President. Let us leave the
question of context out of consideration for the moment. Let us assume
that the South African delegate made a bare statement to the last
session of the League Assembly to this effect, that, after dissolution of
the League and prior toentering into new arrangements with the United
Nations the Union Government would continue to honour its obligations
under the l\Iandate-would regard those obligations as stiJl being in full SOUTH WEST AFRICA
force and effect. Surely a statement of that kind, in the circumstances in
which it was made, would have imported an enormous ambiguity on this
very question of reporting and accountability. The statement was made
in circumstances where everybody knew that the dissolution of the
League was imminent and that the disappearance of those organs of the
League, which were charged in the mandate instruments and in the
Covenant of the League with the supervision of mandatory administra
tion, was also imminent.
Now clearly, as I have said before, a problem in that regard arose of
which everybody is aware-a problem to the effect that if there was now
to be further reporting and accountability under the Mandate, to whom
was that reporting to be made? Was it to be made to any organ of the
United Nations Organization, when everybody also knew that there was
no express provision anywhere in the Charter of the United Nations, or
in the initial resolution passed at the first part of the first session of the
United Nations to make provision and to create machinery for that type
of supervision on the part of the United Nations? Surely it was a question
that did not resolve itself. If there was to be any intent that there was to
be continuation of an obligation to report and account, then it could
only have happened in the event of a reference to the question of substi
tution of a supervisory organ and, therefore, in the absence of any
reference to that particular point-any general statement to the effect
that obligations under the Mandate would still be honoured must-in
itself, be an ambiguous one.
Mr. President, if one takes into account the context of this whole
statement, any ambiguity that might result from the use of that phrase
itself, divorced from its context,s immediately resolved. As I have said,
the statement commences by indicating the ambit of the intent in this
regard, and the ambit corresponds exactly with that which had been
indicated on behalf of the United Kingdom, that is, the statement of
intent related purely to the question of administering the Territory in
accordance with the obligations of the Mandate. And that it was in that
context, and in that context alone, that the South African delegate made
clear that his Government would not regard the obligations of the Man
date as having been diminished. It could hardly be clearer, Mr. President,
following as it does immediately on the statement that disappearance of
the particular organs of the League would preclude complete compliance
with the letter of the Mandate.
If one goes back further and sees the pointed reference to "as she has
done during the past six years when meetings of the Mandates Commis
sion could not be held", any doubt that there could otherwise have been
on the point must surely disappear.
Further support for this contention is derived from circumstances
outside the statement itself-from extrinsic factors. Firstly, there is the
factor of probabilities in the light of the surrounding circumstances and
the surrounding events. Further, Mr. President, support is derived from
the subsequent conduct of the parties themselves.
On the first point-the question of probabilities. Why should South
Africa have wished to renew voluntarily an obligation of accountability
which was about to lapse or which, at the very least, on the basis of the
Applicants' contention, was to become dormant by reason of the falling
away of the supervisory organ, despite the view which the South African
representatives had indicated so clearly before "that the Mandate should ARGUMENT OF MR. DE VILLIERS 399
be terminated and that the Territory should be incorporated as part of
the Union of South Africa". (Il, p. 34.) This is a point with which I have
dealt before.
Further, Mr. President, there is the statement which had been made
previously by the South African representative-
" ... that South Africa may not afterwards be held to have acqui
esced in the continuance of the Mandate or of tlie inclusion of the
territory in any form of trusteeship under the new International
Organization".
The Court will recall that that statement was made at the San Francisco
Conference and that the subsequent explanation of that statement made
clear beforehand that the real wish of the South African Govemment
-the real intent-was that this Territory ought not to be included under
the trusteeship system at ali, and that it was destined to become in
corporated within the Union of South Africa itself. These previous
statements had been designed to make it clear that the Union was not
to be regarded as having committed itself in any way to supervisory
powers on the part of the United Nations in regard to this Territory.
Surely, then, it becomes most highly improbable that the South African
delegation, on this particular occasion, would have indicated an intent
to regard itself as bound to report and account under the Mandate to
this new organization-the United Nations.
What is equally important, Mr. President, if not more so, is this. Why
should the South Afncan delegation alone, of ali the mandatory powers,
have manifested an intention of that kind? I 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 delega
tion's statement being neutra! on this particular point. The question then
arises, why should the South African delegation, when it did not intend
to put the Territory under United Nations trusteeship, and when it had
made clear that intention, alone have decided to put the Territory under
interim supervision until_new arrangements had been entered into?
Furthermore, Mr. President, the subsequent conduct of the South
African Government itself, and the subsequent conduct of other States
who were present on this occasion, again show, firstly, that nothing of
that kind was intended and, secondly, that there was no understanding
on the part of the other delegates concerned of such an intention on the
part of the South African delegation. That is made perfectly clear by the
subsequent history. I am not going to deal with it now-I shall come to
it at the appropriate stage.
We come next, Mr. President, to the statements by the representatives
of France, New Zealand and Belgium. They are ali quoted at pages 47-48
of the Counter-Memorial (Il). They all followed much the same pattern.
Ail of them, it will be observed, were confined to expressions of intention.
Secondly, Mr. President, not one of these statements indicated any
intention whatsoever of reporting and accounting under the Mandate, or
of regarding the United Nations General Assembly as having been
substituted for the Council of the League for that purpose. The statements
of France and Belgium were completely silent on those points-on the
question of reporting and accounting, or of regarding the United Nations
General Assembly as substituted as the supervisory organ. That again is400 SOUTH WEST AFRICA
in itself remarkable, for the same reason as I stressed before in the case
of the statements of the United Kingdom and South Africa. Everybody
knew of the problem which would result from the disappearance of the
supervisory organs of the League; everybody knew that if there was to
be further reporting and accounting, sorne special arrangement would
have to be made in view of the existence of that problem. So these
statements being silent on that particular point is in itself significant,
especially as that is a feature which runs right through every one of the
statements of the Mandatories. May I just say in that regard, that if
there bad been, on the part of these Mandatories, which bad obviously
discussed the matter with one another, as appeared subsequently from
the debate, and which had conferred with one another as to these
expressions of intent of which they were to inform this meeting of the
League Assembly-if there had been any intention on their part to
regard the United Nations as having been substituted for the League of
Nations as a supervisory authority, then one would surcly have expected
at !east one of them to have said soin one of their statements, but not a
single one of them did so. Every one of their statements is confined to
the question of what they would do with relation to administration of
the territories in the interests of the inhabitants.
And then we find, Mr. President, that the statement of New Zealand
in fact goes further. It intimates positively, and I submit in an implicit
sense, that there would be no reporting and accounting as far as New
Zealand was concerned in this interim period. The relevant statement
reads as follows:
"New Zealand does not consider that the dissolution of the
League of Nations and, as a consequence, of the Permanent Mandates
Commission will have the effect of diminishing her obligations to the
inhabitants of Western Samoa, or of increasing her rights in the
Territory. Until the conclusion of our Trusteeship Agreement for
\Vestern Samoa, therefore, the territory will continue to be adminis
tered by New Zealand, in accordance with the terms of the Mandate,
for the promotion of the well-being and advancement of the in-
habitants." '
Again, there is a clear intimation that the dissolution of the League and,
as a consequence, the disappearance of the Permanent :Mandates Com
mission, will have sorne effect; implicitly that is so-it will have sorne
effect, but one effect, New Zealand says, it will not have, and that is,
to diminish ber obligations as far as administration for the benefit of the
inhabitants of the territory is concerned.
Again, therefore, there is this common theme running through ali these
statements. And, Mr. President, on this same point, we come to the
statement which is in that respect the most significant and the most
explicit ofali, and that is the Australian statement. That we find quoted
at page 48 of the Counter-1\lemorial (0), and because it is so very explicit
and so very significant in this respect, I would liketo refer to it fairly
fully. The third line of the statement reads as follows: ·
"After the dissolution of the League of Nations and the consequent
liquidation of the Permanent Mandates Commission, it v."ill be
impossible to continue the mandates system in its entirety."
That in itself, Mr. President, is very explicit. There is nothing ambiguous
when it is said that "it will be impossible to continue the mandates ARGUMENT OF MR. DE VILLIERS 401
system in its entirety". Sometlùng would be Iacking; something would
not be present. And what could that be but the very function exercised
by the Permanent Mandates Commission as an organ in the League-the
function of supervision of mandatory administration? The Australian
statement proceeds:
"Notwithstanding this, the Government of Australia does not
regard the dissolution of the League as lessening the obligations
imposed upon it for the protection and advancement of the in
habitants of the mandated territories, which it regards as having
stiJl full forcend effect."
There is .the same common theme, here explicit, which we find implicit
in the New Zealand statement and in the South African statement,
namely that notwithstanding the disappearance of supervision, the
obligations relating to the protection and advancement of the inhabitants
would not be regarded as in any way lessened.
The statement proceeds:
"Accordingly, until the coming into force of appropriate trusteeship
agreements under Chapter XII of the Charter, the Government of
Australia will continue to administer the present mandated terri
tories, in accordance with the provision of the Mandates, for the
protection and advancement of the inhabitants."
Again the statement of that same intent, in the same way as we find in
the other statements to which I have referred.
The quotation continues-
"In making plans for the dissolution of the Leagile, the Assembly
will very properly wish to be assured' as to the future of the man
dated territories, for the welfare of the peoples of which this League
has been responsible. So far as the Australian territories are con
cerned, there is full assurance. In due course these territories will
be brought un der the trusteeship system of the United Nations;
until then ... "
I break here because this is of the highest importance: what is the intent
of the Australian Government in regard to this interim period-what is
its intent in regard to the future of mandated territories-the question
on which the League would want to be assured? "Until then", the
statement says-
"the ground is covered not only by the pledge which the Government
of Australia has given to this Assembly to-day but also by the
explicit international obligations laid down in Chapter Xl of the
Charter, to which 1 have referred. There will be no gap, no inter
regnum, to be provided for."
So, Mr. President, for that interim period the ground is covered by two
things. The one thing is the pledge which the Australian Government
gave to the Assembly on that day: the pledge relating to the manner in
which administration of the mandated territory would proceed for the
benefit of the inhabitants of the territory. The other aspect was the
explicit international obligations laid down in Chapter XI of the Charter,
to which the Australian representative had referred before. And, as we
indicate at page 48 of the Counter-Memorial, in the earlier part of his
statement in which he had referred to Chapter XI of the Charter, the
Australian representative had said the following:402 SOUTH WEST AFRICA .•
"Amongst other things, each administering authority under that
chapter undertakes to supply to the United Nations information
concerning economie, social and educational conditions in its
dependent territories.''
Now, Mr. President, Australia therefore speaks in its statement not only
of this factor to which ali the other statements were confined, viz. the
factor of what the actual administration of the mandated territory would
be like, and on what principles-on what obligations-it would be
founded. It speaks also of the other element on which the other state
ments are silent, except for the pertinent indications implicitly given.
It speaks pertinently of the question of report and accountability. And
what does the statement indicate? That there would be a continuation
of report and accountability as under the League system? No, Mr.
President, clearly the statement indicates in its earlier portions, which I
stressed, that Australia contemplated there would be no such further
report and accountability under the mandate: instead there was an
explicit international obligation laid down in Chapt er XI of the Charter.
And now, Mr. President, if we come to analyse what that explicit inter
national obligation is, as laid down in the Charter, we find that it is not
an obligation ofaccountability under a mandate at all.l tis not an obligation
involving supervision on the part of supervisory organs. It is merely a
very limited obligation of supplying information of a technical nature on
economie, social and educational conditions in its dependent territories
for the information of the United Nations. The fact, Mr. President, that
that obligation under Article 73 was not intended to involve accoantabil
ity as under a mandate-accountability in the sense of having to report
on and account regarding compliance with substantive obligations laid
upon the administering power-the fact that that is so appears firstly
very clearly from the very wording of Article 73 of the Charter itself.
The Arttcle which, together with Article 74, comprises Chapter XI of
the Charter, is headed "Declaration regarding non-self-governing
terri tories". As my learned friend stressed also in his address, this is a
declaration. It does not take the form of an agreement, and history
shows that this was a very deliberate choice of wording, because the
parties concerned were particularly agitated about the question that
their commitment was not to be put on a higher level than a declaration.
It provides that:
"Members of the United Nations which have or assume responsi
bilities for the administration of territories whose peoples have not
yet attained a full measure of self-government, recognize the prin
ciple that the interests of the inhabitants of these territories are
paramount, and accept as a sacred trust the obligation to promote
to the utmost, within the system of international peace and security
established by the present Charter, the well-being of the inhabitants
of these terri tories, and, to this end:
(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 economie, social and educational
conditions in the territories for which they are respectively respon- ARGUMENT OF MR. DE VILLIERS
sible other than those territories to which Chapters XII and XIII
apply." (Art. 73.)
We find immediately that this information is to be transmitted for
information purposes only. We find that it may be subject to such
limitations as securityand constitutional considerations may require, and
we find that it is to relate to economie, social and educational conditions
-no mention whatsoever of political conditions. \Vhen one compares
this with the definition of the obligation of reporting and accountability
as set out in the mandate instruments-and for the purpose I read
specifically from Article 6 of the Mandate for South West Africa-the
contrast is a glaring one:
"The Mandatory shall make to the Council of the League of
Nations an annual report to the satisfaction of the Council, con
taining full information with regard to the territory, and indicating
the measures taken to carry out the obligations assumed under
Articles 2,3, 4 and 5·"
The fact is, therefore, Mr. President, that the obligation under Article
73 (e) is not an obligation of reporting and accountability regarding
compliance with substantive obligations. It is very clearly a very much
lesserobligation-a very minor obligation-as compared with the obliga
tion of reporting and accOlmtability under the Mandate. That appears
from the wording itself, and my learned friends who represent the
Applicants, admit that this distinction exists as a matter of law. As a
matter of law this obligation cannot be equated with one of accounting
and reporting under the Mandate. We find their admissions in that regard
in the verbatim record at pages 227-230, supra. I do not have to read
the passages to the Court. The Court will recall what the gist of it was.
But, Mr. President, we also refer in our Book II of the Counter
Memorial, at page 138 (Il), to the history of Article 73 which had
occurred during the middle and later portions of the year 1945-in other
words, only sorne months prior to this final meeting of the League
Assembly-a history, therefore, which was very much in the minds and
within the knowledge of the delegates who were present on that occasion
in April 1946--at least those delegates who were also Members of the
United Nations. Vo/erefer there to the debates which took place on this
subject-debates which emphasized the very points which I have
mentioned now, regarding the construction of the provisions of Article 73
(e). And we refer to certain passages in Hall, and I should also like to
amplify those, Mr. President, with a reference to certain passages which
we do not give in our Counter-Memorial. We fi.ndthem in A History of the
United Nations Charter, by Russell and Muther. It is the edition in this
Library, and I wish to refer the Court particularly to passages at pages
821 and 822. There was, according to the authors, considerable discussion
on the question of the title "Declaration" on the question whether the
operative portion was to speak of "undertake", or "agree", and on what
language should be employed in that regard. And they state at page 822,
at the particular stage when this tapie was under consideration:
"... Great Britain pointed out that the section was voluntary and
that 'undertake' went too far for sorne States. A Chinese proposai
also to drop 'agree' was accepted. Thus the opening paragraph only
committed administering States to recognize the 'paramount
interests' of the inhabitants of dependent territories, to accept ... SOUTH WEST .-\FRICA
the obligation to promote to the utmost their well-being and, 'to this
end', to ensure political advance, develop self-government, etc., as
listed inthe subparagraphs."
That shows what care was taken on that particular point. But even
more specifically important for our purposes is the question whether
there was a concept that there would be supervisory powers on the part
of the United Nations or any organ of the United Nations pursuant to
this declaration. And that was a point on which the colonial powers were
specifically insistent, namely that there was to be no conception of any
supervisory power on the part of the United Nations.
At page 821 of the work to which I have referred there is a reference
to one of the occasions when there was a suggestion, made on behalf of
the Soviet Union, that the word "political" should be inserted in sub
paragraph (e}-"political" in addition to "economie, social and educa
tional conditions". But there was objection on the part of Great Britain
and France particularly, on th at occasion, and France is reported to have
declared that "the imposition of specifie commitments amounted to
establishing international supervision of colonies under national sover
eignty". That was the concept against which there was very strong
opposition on the part of the colonial powers.
Duncan Hall deals with this same matter in Mandates, Dependencies
and Trusteeship. 1 wish to refer the Court first to a passage at page 285.
After referring to Article 73(e), the author states:
"This, according to the Charter, is transmitted 'for information
purposes'. The British Commentary on the Charter noted that 'the
general declaration ... does not empower the United Nations
Organization to intervene in the application of these principles by
the Powers concerned."
That was a British commentary on the Charter to which reference is
made by the author.
At page 286, the author states:
"The limitations in the Charter, that the data should be of a
'technical nature'-not political-and should be transmitted to the
Secretary General 'for information purposes', were the result of a
compromise at San Francisco. The purpose of the Iimiting words was
to prevent the information being used for political purposes, e.g., to
prevent outside interference in the government of the territories."
The author proceeds, Mr. President, to point to subsequent events
during the years 1946 and 1947 on the question of the procedures that
would be adopted in regard to the submission of information under
Article 73 (e). He also points out that the General Assembly appointed
an ad hoc comrnittee, 1"nteralia,for the purpose of going into the question
of procedures, and the author's general comment is that in the Prepara
tory Commission of the United Nations, in the autumn of 1945, through
out the 1946meetings of the General Assembly, as in the adhoc committee
in 1947 and the second General Assembly, there was strong pressure on
the part of a number of delegations to go beyond the wording of the
Charter, in arder to prepare the ground for intervention by the United
Nations organization in the application of the principles of Chapter XI.
The author points out, at page 287, that there was opposition against
the very establishment of this ad hoc committee, and that the opposition ARGUMENT OF MR. DE VILLIERS 405
included the United Kingdom, the United States, France and other
colonial powers. Nevertheless, the committee was appointed and it
proceeded with its deliberations.
At page 288 the author records:
"In the course of its meetings the Committee rejected severa!
proposais by the Soviet and other delegations, including
(a) visits by the United Nations to non-self-governing territories.,
(b) the right of the United Nations to receive and examine petitions
from such territories,
(c) instructions from the Secretary General to make use in his
analysis of information drawn from unofficial sources in the terri
tories.
The ad hoc committee agreed by a majority that there was no
obligation under Article 73 to submit information on 'political
progress'; if, however, governments sent such information vol un:
tarily there was no objection to the Secreatry General including it in
his summary."
The author proceeds, at page 289, to point out that there were a
number of resolutions in the Fourth Committee adopted eventually by
narrow margins, which bad been proposed by, what he terms, "the anh
colonial bloc", led by the Soviet Union and India in the Assembly's
Fourth Committee. He says that they succeeded by a series of votes,
carried by very narrow margins, to undermine the agreement reached in
the ad hoc committee, and he gives examples of these decisions of the
Fourth Committee, at page 289:
"Under the Fourth Committee's new proposai, the sending by
governments ofinformation onpolitical progress was toberecommended
by the Assembly. The position of the minority was that as a result
of an agreement at San Francisco, the Charter excluded political
information from Article 73 (e). Thus, governments were under no
obligation, either legal or moral, to supply ii.To attempt to make
them to do so was an attempt to rewrite the Charter by Assembly
resolution."
After a few lines he continues:
"A further resolution greatly widened the powers of the Special
Committee by enabling it to make such recommendations as it
deemed appropriate. This was objected to by the United States
respresentative as an attempt to change the Charter, since the
United Nations does not have any power of supervision over the
administration of non-self-goveming territories. The resolution, he
pointed out, blurred the fundarnental difference between Chapters
XI and XII to XIII of the Charter, and placed no limits on the
powers of the Special Committee. The United Kingdom representa
tive added that the special committee as now proposed would be a
rival organ to the Trusteeship Council. These Fourth Comrnittee
resolutions were rejected by the General Assembly on 3 November
1947 by substantial majorities and the resolutions of the ad hoc
committee were adopted in their place."
Mr. President, 1 have referred at sorne length to this question of the
history of Article 73 (e), and also to the very firm attitude adopted SOUTH WEST AFRICA
consistently by the Powers concemed immediately afterwards when
attempts were made to impose upon them a more onerous obligation
under Article 73 than that to which they considered themselves com
rnitted. I have stressed that because that history must, in fact, have
brought the fact very firmly to the notice of everybody concerned in the
years 1945 and 1946, viz. that Article 73 was not intended to impose an
obligation of reporting and accountability. Bearing that in mind, we can
revert now to the statement of the Australian representative that he
considered that, in that interim period, his Government would deal with
mandated territorieson the basis of Article 73, and would submit
information of the limited nature and for the limited purpose referred to
in Article 73· That, in itself, Mr. President, excluded any contemplation
whatsoever on the part of the Australian delegation that there would be
an obligation of full report and accountability under the Mandate. And
that must have been present in the mind not only of the Australian
delegation, but of everybody present who was aware of this history and
of the content of Article 73 (e) of the Charter.
Mr. President, whether the Australian delegate was correct or not, as
a matter of law, in considering that Article 73 (e) would apply in that
interim period in relation to the mandated territory under Australian
control, is immaterial, to my contention. \Vhat is important is that the
Australian representative, in fact, thought that Article 73 was applicable,
and that he indicated that that was the view of his Government-that
his Government was going to deal with the situation on the basis of the
applicability of Article 73 (e)-and, therefore, that excluded very clearly
any contemplation on the part of his Government of a continuation of
an obligation of report and accountability under the Mandate itself.
Mr. President, I promised to give the Court a reference to authority
on the point that nine of the members of the Special Committee on
Palestine were Members of the League, at the time of its dissolution. The
reference is Walters' History of the League of Nations, Volume 1, pages
64 to 65. The two countries that were not members at the time of the
dissolution of the League were Guatemala and Peru.
Mr. President, 1 now summarize the conclusions to be drawn from the
varions statements by the mandatory powers. I submit it can fairly be
said, firstly, that not one of those statements indicates, in express
language, that reports under the mandate would, in future and until
termination of the mandate status, be rendered to the United Nations.
Secondly, not one indicates any contemplation of any substitution of
supervisory organs, for the purposes of the obligation of report and
accountability under the mandate. Thirdly, aU of them indicate an
intention of continuing with those obligations under the mandate which
relate to the manner of administration of the territory. Fourthly, in four
cases-those of the United Kingdom, South Africa, New Zealand and
Australia-a clear indication is given that no reporting and accounting
under the mandates would occur. \Ve submit that it is perfectly plain that
that is the manner in which the statements were also understood. That
follows, not only from the arguments which 1 have already addressed to
the Court, but also from consideration of the further events which led up
to the eventual resolution of the League on that subject, and the very
wording of that resolution itself. We give the wording in Book II of the
Counter-Memorial (II), at pages 51 to 52, and just on this particular
point, I refer to paragraph 4 of the resolution which- ARGUMENT OF MR. DE VILLIERS 407
"Takes note of the expressed intentions of the members of the
League now administering territories under mandate to continue
to administer them for the well-being and development of the
peoples concerned in accordance with the obligations contained in
the respective mandates until other arrangements have been agreed
bctween the United Nations and the respective mandatory powers."
The concept, which we find in all those statements of expressions of
intention, is limited to the concept of administering the territories in a
particular way, viz.,in accordance with the obligations of the mandate
for the welfare of the peoples concerned.
This, in itself, in our submission, Mr. President, dispels any suggestion
that all States, at the final session of the League, had a common intent to
effect a substitution of a supervisory organ. The mere fact that the
mandatories themselves were so clear on that point makes it obvious
that at least it cannot be said that the mandatories (and they were, after
aH, the crucial parties concerned-those upon whom it is sought to
impose this obligation) agreed to this obligation. But the lack of consent,
not only on the part of the mandatories but on the part of everybody,
becomes more manifest when we have regard to the history of the resolu
tion on mandates.
On the afternoon of 9 April (that was after the statements by the
United Kingdom and South Africa which had been made on the moming
of the gth, but before the other statements by manda tories), the Chinese
representative, Dr. Liang, proposed for discussion a draft resolution
which is quoted at page 49 of the Counter-Memorial (II). I am not going
to read its terms now. 1 shall do so presently. The Chairman, on that
occasion, ruled, in the Committee concemed, that the proposai was not
relevant to the item then under consideration. (That is on the same page
of the Counter-Memorial.)
Subsequently, Mr. President, three days Iater, on 12 April 1946, the
same Chinese delegate, Dr. Liang, introduced a new draft, in the Com
mittee concemed-that is Committee 1 if 1 remember correctly-and of
this new draft, Sir Hartley Shawcross, the United Kingdom representa
tive, said, when seconding the proposai, that it "had been settled in
consultation and agreement by ail countries interested in mandates, and
he thought it could, therefore, be passed without discussion and with
complete unanimity". (Il, p. so.)
This draft, as introduced on 12 April, was the basis of the eventual
resolution conceming mandates, and the resolution is quoted, as 1 have
said, at pages sr to 52 of the Counter-Memorial (ll).
This may be a convenient time to refer to the wording of the two
proposais.
The first one, the one of 9 April, read as follows:
"The Assembly,
Considering that the Trusteeship Council has not yet been consti
tuted and that aH mandated territories under the League have not
been transferred into territories under trusteeship;
Considering that the League's function of supervising mandated
territories should be transferred to the United Nations, in order to
avoid a period of interregnum in the supervision of the mandatory
regime in these territories; (Italics added.)
Recommends that the mandatory powers as well as those adminis- SOUTH WEST AFRICA
tering ex-enemy mandated territories shall continue to submit
annual reports to the United Nations and to submit to inspection
by the same until the Trusteeship Council shall have been consti
tuted." (P. 49·)
That was the first proposai.
The final proposai, settled after the discussions and consultation, read
as follows:
"The Assembly:
Recalling that Article 22 of the Covenant applies to certain
territories placed under mandate the principle that the well-being
and development of peoples not yet able to stand alone in the strenu
ous conditions of the modem world forma sacred trust of civilization:
[I skip paragraphs 1 and·2, and proceed to 3)
"3. Recognizes that, on the tennination of the League's existence,
its functions with respect to mandated territories will come to an
end, but notes 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 League;
+ Takes note of the expressed intentions ... [1 read that to the
Court recently]."
Mr. President, before we consider the differences between these two
drafts (or the first draft and the eventual resolution), it may be as well to
have regard to the similarities, and there are two similarities which are
very important. The first one is that both of these drafts contemplated
the falling away of the League and of the League supervision, and that
there would be an eventual creation of new arrangements, by agreement
with the United Nations. Secondly, Mr. President, both of them were, in
their wording, directed at the situation which would exist in the interim
period, that is, between the two contemplated events-between the
falling away of League supervision and the new arrangements to be
effected by agreement with the United Nations. It is in the manner of
dealing with this second factor-with this interim situation, that these
two drafts are pales apart.
The first draft, Mr. President, would, if accepted, have included the
specifie provisions contained in its last two paragraphs-specific provi
sions relating to this interim period-the first being that the League's
function of supervising mandated territories would be transferred to the
United Nations, and the second that mandatories should continue to
submit reports to the United Nations and to submit to inspection by the
same-express provisions to that effect.
The second draft, Mr. President, is in its wording very much more
lirnited, its terms being confined to taking note of the expressed inten
tions of the mandatories regarding the manner in which they proposed
to administer the territories in that interim period. That is the marked
contrast.
Mr. President, what then is the effect of this alteration in wording
what is the significance of it? My learned friends now advance a con
tention about it, whereas they previously did not really deal with this
situation as being sÏgnificant at ali. Their contention now is that the
alteration brought about no change whatsoever in the meaning and in
the effect of the resolution. They say in effect, Mr. President, that this ARGUMENT OF MR. DE VILLIERS
new resolution rnerely represented a different, and a less explicit, way of
saying the sarne things as the first resolution. That is what the argument
amounts to. If we look at the verbatirn record of rg March, we find that
my leamed friend, Mr. Moore, in dealing with this subject-the contrast
between the two resolutions-made various submissions about it, and
the crucial ones were two-fold. One, 1 find at page 151, supra, where he
says-"The ward 'principles' i<;not qualified in any way, and must surely
inelude the essential principle of international accountability". That 1s
part of his interpretation of the speech of the Chinese delegate with refer
ence to the final resolution.
Then he says at page 152, supra-
"... it would seem obvious that the general understanding of the
League Members in adopting the resolution was that aU the obli
gations of the various mandates survived the dissolution of the
League and were binding upon the Mandatory Powers pending the
conclusion of new arrangements under the United Nations trustee
ship system".
One finds similar contentions, Mr. President, which 1 need not read, in
the verbatim record at page q8, supra.
Those are the contentions for the Applicants. In other words, the final
resolution in effect means the same as what was originally raised for
consideration.
Our contention is, Mr. President, that this change in wording very
clearly reveals a change in intent and in effect. Before 1 weigh the rela
tive merits of these contentions, with reference to the wording, let me
refer to the reason which was given by the Applicants for the alteration
in the wording of the resolution-the reason which the Applicants sug
gest for altering the wording, and the reason which we suggest for alter
ing its sense. The Applicants state their attitude in that regard at page
151, supra, of the verbatim record-
"... it is most likely that the League of Nations, notwithstanding
the several undertakings by the mandatory powers to carry out aU
of the obligations of the mandate agreement pending the establish
ment of the United Nations trusteeship system, did not wish to
appear to encourage delay in the early formation of the trusteeship
system".
Now, Mr. President, the Court will recall that 1 dealt with a similar
contention in regard to the proposai conceming a temporary trusteeship
committee as it came before the Preparatory Commission of the United
Nations. 1 indicated the absurd conclusions to which it leads-the
absurd implications in its context as seen against the background of
events at the United Nations. 1 submit, Mr. President, that the result
is even more obviously absurd in this context of the League dissolu
tion. Applicants' contention would involve this, that, in the expression
used by Sir Hartley Shawcross, aU countries interested in mandates
solemnly agreed with one another on this formulation rather than on a
more explicit one, and the abject was to encourage themselves, or at
any rate sorne of those interested, not to delay in submitting trusteeship
agreements.
In other words, we have a number of States specially interested in
mandates, the manda tories themselves and sorne others who were partie-410 SOUTH WEST AFRICA
ularly interested for various reasons. They have a full discussion about
all the implications. They come to a basic arrangement wlùch is then
eventually proposed for unanimous adoption by the last Assembly of the
League. Ali the mandatories are included in this circle, thls circle that
may be called "the proposers" of the particular resolution. They evolve
a scheme asto what is to be done and, according to my learned friends,
the scheme is that they should not say expressly that there is to be
any United Nations supervision in respect of mandates outside of
trusteeship, because that would discourage the early submission of
trusteeship agreements.
And my learned friends say that, despite the fact that the proposers
do not have an express agreement on that point, they still have an
implied agreement, whlch is to the same effect, namely that there will be
United Nations supervision over mandates outside of trusteeship. Never
theless, despitethe fact that they all know that-they are ali agreed upon
that-they do not regard that as discouraging the early submission of
trusteeship agreements. It simply, in my submission, does not make
sense, Mr. President.
The much more likely and, in our submission, the obvious explanation
for the change in wording, is that amongst ali the countries that were
interested inmandates it became apparent, during discussions, that they
could not obtain unanimity on the objectives that were involved in the
first Chinese proposai. That is perfectly obvious when we consider the
attitude of the various parties in relation to specifie mandates as we
summarize them in the Counter-Memorial, Il, at page 133-firstly, the
attitude of Respondent itself-Respondent which had stated in effect
that neither the mandates system nor the trusteeship system should in
future apply to the Territory of South West Africa; secondly, the atti
tude of the United Kingdom in relation to Palestine, when it had made
it clear that it had reserved its future intentions regarding Palestine
completely, and thirdly the attitude of Egypt which considered that
Palestine had to be regarded as having outgrown the need for being
govemed under mandate or trusteeslùp. Surely then Egypt could not
agree to a resolution which would make it obligatory on the mandatory
power (Great Britain) to submit to United Nations supervision in regard
to Palestine.
Then Mr. President, in addition to those States, to whlch we refer in
the Counter-Memorial, there may weil have been certain States which
were concemed about the possibility that if specifie machinery was
created-even an express resolution was taken--on the subject of
United Nations interim supervision over mandates not converted into
trusteeship, that that would have the effect of discouraging the early
submission of trusteeship agreements. We noted that that was quite a
probable attitude.explaining the actions of the United Nations Members
during the early months of operation of the United Nations. We have
noted the fact that the majority of the members of the United Nations
constituted also the majority of the Members of the League of Nations.
We have noted that it was unlikely that that line of approach would have
changed in this short period of months unless sorne special reason for it
arose why the States concemed should see the matter in a new light to
that which they had seen it in before. It, therefore, seems quite probable
that States which bad this view of the situation, would also have been
opposed to the first Chinese proposai and that the grounds of their oppo- ARGUMENT OF MR. DE VILLIERS 4II
sition would have then have been that it would then have been preferable
to make no provision at ali for interim supervision, because, as I have
said before, they could hardly, in taking this view, have distinguished
between a tacit agreement and an express agreement-a tacit agreement
being concerned with something about which everybody is so clearly
agreed that there can be no dispute-there can be no question about it.
Everybody knows it is so, it is too clear. But how they could have
entered into a tacit agreement that there was to be supervision by
United Nations of territories outside trusteeship without the manda
tories knowing of it-1 simply cannot see how that could have happened.
So, Mr. President, those reasons indicate, in our submission, very
strong probabilities that in the discussions, which we know occurred,
unanimity could not be obtained about the objectives of the first Chinese
proposai and that was the simple explanation for the change in wording,
as far as the second draft was concerned. It appears that the represen
tative of China himself was, in our submission, fully aware of the signi
ficance of the contrast. That appears from the contrast between what he
said on the first occasion on 9 April 1946 and what he said on 12 April
1946. In both of these addresses he commenced by posing the problem,
as he saw it, namely the fact that, pending new arrangements between
mandatory powers and the United Nations, there would be a period of
interregnum in the supervision of the mandatory regime, unless special
provisions to the contrary were made. That was the problem as he posed
it.ln addressing the Committee first on 9 April he raised this problem
as follows: he referred to-
"... the position of territories under mandate and to the position
which would arise on the dissolution of the League, in view of the
fact that the trusteeship council of the United Nations has not yet
been appointed and was not likely to be set up for sorne time".
(Il, p. 49·)
If we relate the speech to the second paragraph of the proposed reso
lution we find his conception of what the position would be in that
interim period. There, he states that:
"Considering that the League's function of supervising mandated
terri tories should be transferredtothe United Nations, inorderto avoid
a period of interregnum in thesupervision of themandatory regime ... ''
(Ibid.}
That then was the problem as he saw it and as he stated it.
The same problem he mentioned also at the beginning of his second
address sorne days later. 1shall refer in a moment to the manner in which
he raised it there. The contrast cornes, Mr. President, in the manner in
which he proceeded to indicate how that problem was to be dealt with.
On the first occasion he immediately proceeded to state:
"The Chinese delegation wished to submit a resolution recommend
ing that the mandatory powers should continue to submit annual
reports on the mandated territories to the United Nations and that
they should agree to inspection b): the latter, pending the constitu
tion of the trusteeship council." (Ibid.}
Now we come to what Dr. Liang said on the later occasion on 12 April.
"The United Nations Charter in Chapters XII and XIII established412 SOUTH WEST AFRICA
a system of trusteeship based Iargely upon the principles of the
mandates system, but the functions of the League in that respect
were nd transjerreatdomati cothelUlnited Nations."(Ibid.p.5o.)
This is a statement, Mr. President, of the same problem mentwned
before, namely that special provision was necessary for a transfer of
functions otherwise there would be an inte1'regnumin the supervision of
the mandatory regimes. He proceeded in the next sentence: "the Assem
bly should therefore take steps to secure the continued application of the
principles of the mandates system." I agree with my learned friend,
:Mr.Moore, that the ward "therefore" is significant. lt is because of the
fact that in the absence of special arrangements· there would be an
interregnum that it was necessary for the Assembly to do something.
Mr. President, the difference turns on the question what it is sug
gested the Assembly was to do. We saw what the previous suggestion
was namely directed to the point of providing for interim supervision
and reporting and acounting. Here the matter is put in the more general
words "the Assembly should therefore take steps to secure the continued
application of the principles of the mandates system" (II, p. 50) and if
we read what the learned speaker said further, we find that it becomes
absolutely clear that he was proposing a new method of dealing with that
situation.
The new method proposed, Mr. President, was adopted from that of
the Australian declaration, namely that: "The League would wish to be
assured asto the future of mandated territories."
So what do we find: in the first proposal there is a proposed resolution
involving positive action on the League's part-a positive resolution
affecting a transfer of powersnd calling upon the mandatory powers to
submit reports and to submit to supervision on the part of the United
Nations. The other proposai is that the League is to play a passive part
the League would "wish to be assured as to the future of mandated
territories"-in complete keeping with the whole basis that mandatories
are making statements or declarations to the League, containing assur
ances in the form of statement of intention of the mandatories.
Mr. President, since that assurance of the League was, in fact, estab
lishedby the varions statements of the mandatory powers and since
they were taken note of in the resolution proposed, it was entirely con
sistent in those circumstancesthat the Chinese delegate should express
his gratificationbecause that was the new method which he had
accepted-which he had, in my submission, become forced to accept in
order to deal with the problem.
As we have seen, these statements pointedly made no reference to
reporting and accounting to the United Nations in that interim period.
They were limited ta the factor of admimstration of the territories in
accordance with the obligations under the mandate. It was, therefore,
to be understood, Mr. President, that the statement of the Chinerepre~
sentative, in saying what it was that he was gratified about, would also
be confined to the element of administration of the territories in accor
dance with the principles and the obligations of the mandates system and
that is what we, in fact, find.
We find that the Chinese delegate proceeds to state:
"It was gratifying to the Chinese delegation, as representing a
country which had always stood for the principle of trusteeship, ARGUMENT OF MR, DE VILLIERS
that all the Mandatory Powers had announced their intention to
administer the territories under their control in accordance with
their obligations under the mandates system until other arrange·
ments were agreedupon." (Il, p. so.)
That was understood then as being the method by which this problem
would be dealt with. That was the method by which the Assembly was
to take steps to secure the continued application of the principles of the
mandates system: it should take steps by being assured by the state
ments of the mandatory powers.
The Applicants, Mr. President, place reliance upon the concluding
words of the last portion of the state:ment which I read, namely "obliga
tions under the mandates system", but again, in doing so, they take
those words out of their context. The context of those words is entirely
confined to the concept of administering the territories under their con
trol in accordance with those obligations.
The Applicants also, Mr. President, place reliance in their argument
upon the fact that the Chinese representative regarded this resolution
as a step taken by the Assembly to secure the continued application of
the principles of the mandates system and they place particular emphasis
on the words "continued" and "principles". Their suggestion is that in
this context principles must then include the principle of report and
accountability to a supervisory organ. But, Mr. President, apart from
ali the arguments I have already adduced to the Court to show that that
was not contained in the statements of the mandatory States-that that
was not understood to be so-there is also the factor of context to which
I have just referred, and there is this further factor which the Applicants
themselves admit in their argument, by way of a quotation from Duncan
Hall. They say that "the welfare of native peoples ... is the real heart
of the system". We find that quotation in the verbatim record at page
147, supra. .
The solution is this: that in the first resolution the Chinese delegate
had sought to ensure the continued welfare of the Native peoples by a
particular method. That particular method was to make special provision
for United Nations supervision of a mandat ory administration in the
interim period. His proposai in this regard could not command general
support, and in the end he had to be satisfied with this ether method
directed at the same purpose, and this method was that the League was
to rely on the expressed intentions of the mandatories to give effect to
this "real heart of the system" -"the welfare of native peoples"-in their
administration of mandated territories. And therefore his statement is
confined to that factor. It was a different method of dealing with the
same ideal-of satisfying the League asto the future of rnandated terri
tories. That this was so realized by Dr. Liang himself is manifest not
only from what I have already referred to, but also from a sentence which
was not quoted by my learned friends in reading this passage to the
Court, and this sentence reads as follows:
"It was to be hoped that the future arrangements to be made with
regard to these territories would apply, in full the principle of trust
eeship underlying the mandates system." (Il, p. so.) (Italics added.)
There could hardly be a clearer, further manifestation of the realization
that the princip les of trusteeship would not in the interim period apply
in full,and that the respect in which it would not apply in full would SOUTH WEST AFRICA
be exactly in relation to what was the subject-matter of the first proposai,
narnely specifie provision for interim supervision.
In the context, therefore, this address by the Chinese delegate leaves
no doubt whatsoever that he realized full well the change that had come
about-the change that had come about in the provision to be made for
this interim period: that now there was to be no provision for accounting
and reporting under the mandate-it was merely to be a matter of the
mandatories giving a full assurance that they would act in accordance
with the principles of the system for the well-being of the peoples con
cerned in the administration of the territories. And he hoped that the
aspect which was Jacking would be supplied in full at the later stage in
the new agreements to be made between the mandatories and the United
Nations.
Mr. President, we must have regard to the way in which my learned
friend forthe Applicants sought to interpret the wording of the resolution
itself soas to reach the same result as that expressed in the first Chinese
draft. His argument on the wording of the resolution was this. First of ail
he had to construe the resolution as referring to explicit undertakings of
a binding legal nature on the part of the manda tories, and his contention
was therefore this: that acceptance by Respondent of this resolution
clearly involved an explicit undertaking of sorne sort. Otherwise, he said,
the phrase "until other arrangements have been agreed between the
United Nations and the respective mandatory Powers would have been
meaningless, if not, indeed, misleading"-we find that in the verbatim
record at page 212, supra. In this way my learned friend attempts to get
round the explicit wording of the resolution, which does not purport to
embody or record any undertaking, but merely says that it "takes note"
of "expressed intentiOns". In this respect his argument departs, in my
submission, from the clear meaning of the resolution. But his argument,
1submit, is untenable when he says that acceptance by Respondent of the
resolution clearly involved an explicit undertaking of sorne sort because,
in our submission, there isnothing anomalous or meaningless in expressing
an intention, as distinct from giving a binding undertaking, to continue
with a present course of conduct until other arrangements are made.
The effect of the acceptance of the resolution is simply an expression of
intent to continue with a certain course of conduct which is now being
engaged upon until new arrangements are made. And why that should be
construed as being from its very nature a kind of undertaking of sorne
sort, as opposed to a mere expression of intention-that, 1 must say, I do
not understand.
It may be noted, Mr. President, in passing, that the ordinary meaning
of this resolution, therefore, confirms Respondent's submissions regarding
the sense in which the statements by mandatories are to be understood,
by indicating an appreciation on the part of the Assembly as a whole that
the said States did not purport to give binding undertakings, that they
merely gave expressions of intention.
The second step in the Applicants' argument is the one that is of
particular significance here, and that concerns the legal scope of this
statement of intent, or of the suggested undertaking, as they put it.
They say that the scope of the undertaking was determined by the
significance of the phrase "in accordance with the obligations contained
in the respective mandates". They contend, Mr. President, that the
"obligations" must include "international supervision" with the conse- ARGUMENT OF MR. DE VILLIERS
quent effect that the resolution must be read as embodying agreement
to render reports to the United Nations.
Mr. President, we submit that even as a matter of wording that
contention is far-fetched. In its context in the resolution the word
"obligations" refers only to the exercise of the functions to which the
expressed intentions relate, namely "to administer them [the mandated
terri tories] for the well-being and development of the peoples concerned".
These are the "obligations" which are intended to be continued, and
there is no warrant,in the interpretation of that resolution, for extending
the word beyond that meaning which it clearly bas in the context, and
which is, 1submit, in that context capable of no other interpretation.
We have pointed out, Mr. President, that that quoted phrase, "to
administer them for the well-being and development of the peoples
concerned", corresponds exactly with the terms of sorne statements by
the mandatories and with the general tenor of ail of them. And in
addition to the wording of those earlier statements on behalf of the
mandatories, Mr. President, the matter becomes even more emphatically
established by reference to what .the French and the Australian repre
sentatives said on the occasion of the adoption of the resolution itself
in the First Committee. We find the reference to that in the Counter
Memorial, ll, at pages so-sr. The French representative, speaking in
support of this proposed resolution on 18 April, said as follows--he
"... wished to stress once more the fact that ali terri tories under
the mandate of his Government would continue to be administered
in the spirit of the Covenant and of the Charter". (Italics added.)
I repeat-"continue to be administered in the spirit of the Covenant and
of the Charter" which in other words, emphasized again the crux of the
whole situation-no reference whatever to accounting or reporting. The
Australian representative-
"... welcomed the initiative of the Chinese delegation in moving the
resolution, which he supported. The Australian delegation had made
its position clear in the Assembly-namely, that Australia did not
regard the dissolution of the League as weakening the obligations of
countries administering mandates. They regarded the obligations as
still in force and would continue to administer their mandated
territoriesin accordance with the provisions of the mandates for the
well-being of the inhabitants. Over and above that, Australia recog
nized obligations under the Charter which she bad already assumed
as a Member of the United Nations and others which she would
assume inbringing the Territories under the international trusteeship
system." (II, pp. so-sr.) (ltalics added.)
Clearly, then, there is the reference again to the two things which we
noticed in the original Australian statement-the intention to continue to
administer the mandated territories in accordance with the provisions
of the mandates for the well-being of inhabitants, and, secondly, overand
above that, the obligations under the Charter which, as has been ex
plained before, were to be the obligations under Article 73 (e) of the
Charter-the limited obligation of supplying information for the infor
mation of the United Nations in the limited scope of Article 73 (e), and
therefore the exclusion of a contemplation of accounting under the
mandate.
We wish to emphasize, Mr. President, the similarity. in concept, and SOUTH WEST AFRICA
even in language, in ali the important steps of the process, the first step
being the statements of the mandatories made prior to the resolution of
r8 April; the second the address of the Chinese representative in moving
the resolution; the third, the words of the French and the Australian
delegates in supporting the resolution, which 1 have just read; and the
fourth, the terms of the resolution itself. Ali these varions expressions of
intent indicate the future conduct of the mandatories to consist of
administration for the benefit of the inhabitants-that was aUthe League
was being assured of, and ail that it understood it was being assured of.
The contrast, Mr. President, with both the terms of the fust Chinese draft
proposai and with the words of the Chinese representative as at that
initial stage is, in the words of the honourable President and Sir Gerald
Fitzmaurice in 1962, "absolutely glaring and revealing" to such an
extent that they require, in my submission, no further comment.
As we will show later, Mr. President, subsequent events on behalf of
ail the interested parties show an entirely consistent and continuing
understanding that the scope of the expressed intentions, and therefore
also ofthe resolution, was limited, in the way 1 have indicated, to admin
istration, and that it did not extend to reporting or accountability
under the mandate. Taking these varions elements in the situation, that
picture emerges very clearly from the history of this resolution, and
from the wording of the resolution, and, Mr. President, that is, 1 submit,
therefore an indication of intent which agrees entirely with the intent we
find on the part of the Members of the United Nations in the history
with which I dealt yesterday.
Mr. President, it may be useful at this stage to give sorne attention
to the question whether the events at the dissolution of the League show
any contemplation on the part of the States there present as to the
continuation of the mandate as an institution. We deal with that matter
in our Rejoinder, V, at pages 60-63, and we point out that there cannot
be said to have been an explicit, uniform statement of opinion on the
part of the States concerned. What we want to emphasize, as we did in
the Rejoinder, is this: that this duality in the attitude of the States
concerned, or in the possible interpretation of their attitudes regarding
the proceedings on mandates at the last session of the League-that
duality-Mr. President, concerns the choice between the two alternatives
for which the Respondent contends-the two alternatives being either
that the mandate as a whole lapsed, or that the mandate survived
without accountability to a supervisory authority. Those were the two
alternatives between which their attitudes appeared to waver. There
was a clear exclusion on the part of the States concerned as far as their
actual attitudes were concerned; there was a clear exclusion of the
position contended for by the Applicants, namely that the mandate
would survive, together with accountability to the United Nations, as
an integral portion thereof.
The Applicants point out in the verbatim record of their oral argwnent
at pages rsr-rsz, supra, that the Egyptian delegate stated his Govern
ment's reservation to the League resolution as it affected Palestine, and
that he then said:
"The opinion of my Government is that Palestine has intellec
tually, economically, and politically reached a stage where it should
no longer continue under mandate or trusteeship or whatever
other arrangements may be considered." ARGUMENT OF MR. DE VILLIERS
The delegate further stated: "It is the view of my Government that
Mandates have terminated with the dissolution of the League of Na
tions ... "and that in so far as Palestine is concerned there should be no
question of putting that country under trusteeship.
Mr. President, as far as this statement is concerned, my learned
friends argued as follows. I read from the verbatim record at page 152,
supra:
"It is important to note that the Egyptian representative clearly
felt that the resolution under consideration was not acceptable
because it signified that mandates continued in force and were not
terminated by the dissolution of the League of Nations. Since the
opinion implicit in his reservations was not controverted by any
Member of the League of Nations, it would seem obvions that the
general understanding of the League Members in adopting the
resolution was that all of the obligations of the varions mandates
survived the dissolution of the League and were binding upon the
Mandatory Powers pending the conclusion of new arrangements
under the United Nations trusteeship system."
Mr. President, we submit that this contention which I have just read
is a completely untenable one. The Egyptian attitude was that Palestine
was to be given independence immediately; that was what Egypt
wanted-that was the practical result for wh1ch it was contending-and
for that reason the resolution was not acceptable to the Egyptian
representative. His statement that the mandates had terminated was
only one of the reasons advanced for advocating the immediate indepen
dence of Palestine. In the result, Mr. President, it is not clear why any
of the other States should have controverted this view. Even If the
other States agreed with him that as a matter of law the mandates
would lapse on the dissolution of the League, there would have been no
point in their saying: "I agree with yon that the Mandate willlapse on
dissolution of the League, and the resolution is not in confl.ict with that
view, but it is nevertheless in conflict with your attitude regarding the
future of Palestine." There would not have been any point, Mr. President,
in the delegates answering in that manner, because the important thing
was not the question of the view whether the Mandate had lapsed or had
not lapsed, but the important thing was, what was to happen in the case
of Palestine? And inasmuch as the Egyptian delegate in any event was
not opposing the resolution, but merely explaining why he was abstaining,
it was quite unnecessary to take him up on that point at ail.
But, Mr. President, even if the Applicants were to be correct in saying
that there was a general contemplation that the mandates would continue,
it does not follow that this contemplation extended so far asto embrace a
substitution of supervisory organs. There is nothing in the history of this
Egyptian reservation to suggest such a contemplation. The Egyptian
reservation did not object to supervision. 1 t objected to the status of
Palestine as a dependent or mandated territory. The silence on the part
of the other delegates could therefore indicate no more than a view that
this status would survive the League, the status of being a mandated
territory. That view, Resporident has conceded already, is a view which
may have been held by a number of the delegates-it may have been
held by ail of them. I am not concerned with that for the moment. What
I am concerned with is the view which they took on the question whether<J.I8 SOUTH WEST AFRICA
there was to be reporting and accounting under mandates to United
Nations supervisory organs. In that regard, after aU, it will be recalled,
Mr. President, that the Chinese representative had said previously in
that same debate, "that the functions of the League in that respect,
[that is in respect of mandates] were not transferred automatically to the
United Nations". (Il, p. so.) (Italics added.) And it will also be recalled
that nobody in the debate controverted the Chinese representative on
that point.
Mr. President, we submit therefore that this survey of the events
occurring at the final session of the League Assembly shows that there
was a general contemplation on the part of the Members of that Organi
zation that supervision would Iapse, or at !east that it would become
dormant or inoperative, on the dissolution of the League. Although this
point was pertinently brought to the attention of the League by the
first Chinese proposai, and again when it proposed the second resolution,
the League deliberately, in our submission, refrained from making any
provision for interim supervision.
But, of course, it is unnecessary for us togo so far. It is unnecessary
for the Respondent to say, as we do say, that there was general agreement
on this contemplation that there would be no United Nations supervision
after the dissolution of the League and prior to new arrangements. Ali
that it is necessary for us to show is that the Applicants have not estab
lished the contrary~t tea tpplicants have not established a general
consensus by a process of necessary inference-a general consensus to the
effect that there would be such supervision after the dissolution of the
League. That, it seems clear beyond any doubt, the Applicants have
entirely failed to establish. If we disregard even anything else, the
Australian attitude makes it perfectly clear that there was no agreement
on the part of Australia in that regard. We, of course, contend that the
British, the New Zealand, the South African, and the French statements,
read in their context, made their attitudes equally clear.
Mr. President, thereisa final factoin this part of the case \Vith which
1 have to deal, and that is the treatment which was accorded in practice,
at this final session of the League and thereafter, to the various resolutions
which bad previously been taken by the United Nations General Assem
bly on the question of transfer of assets and assumption of functions
and powers previously exercised by the League. 1 would like to deal with
this subject, Mr. President, in relationo three matters. Firstly, 1 would
like to deal with it in relation to those earlier resolutions of the United
Nations. Secondly, 1would like to deal with it in relation to the provisions
of Article 102 of the Charter, which requires "registration of ail treaties
and international agreements entered into by Members of the United
Nations". And thirdly, Mr. President, 1 would like to deal with it in
relationto the activities ofthe Board ofLiquidation, which was appointed
at the final session of the League Assembly.
First, it may be convenient if I were to refer the Court to the wording
of Article ro2 of the Charter. lt reads as follows:
"r. Every treaty and every international agreement entered into
by any Member of the United Nations after the present Charter
cornes into force shaH as soon as possible be registered with the
Secretariat and published by it.
2. No party to any such treaty or international agreement which
has not been registered in accordance with the provisions of para- ARGUMENT OF 1\IR. DE VILLIERS
graph r of this Article may invoke that treaty or agreement before
any organ of the United Nations."
Mr. President, I revert to the question of the manner in which the
League Assembly dealt with these prior resolutions of the United Nations
General Assembly. We deal with the subject in Book II of our Counter
Memorial (II), at pages 44-46. We point out there that the League
Members were fully informed beforehand--even those who were not
Members of the United Nations--of these varions resolutions that had
been taken by the United Nations General Assembly. That was doue in a
communication from the Secretary-General of the League dated 20 Sep
tember I945· A suggestion was made that in regard to the proposed
transfer of assets the Supervisory Commission of the League should be
empowered to negotiate with representatives of the United Nations, and
for that purpose to draw up provisional terms of transfer, subject to the
final decision of the League Assembly. I am sorry, that suggestion related
not only to assets. 1t related to transfer in general of functions and
powers, as weil as assets. But eventually, because of limitations in
resolutions taken on the United Nations side, the actual negotiations
between the representatives of the Organization were limited to the
question of the transfer of assets. Nevertheless, the League Members
were fully informed of the other resolutions which had been taken in
regard to functions and powers. In that regard, we find that the authors
of the publication The League Hands Ovn-stated as follows in a quotation
at page 44 of our Counter-Memorial(II):
"Thus by the time the Assembly met in its twenty-first session
it was in possession of the United Nations' plans for taking over the
League's material assets and for carrying on, either directly or
through one of its related agencies, all the League's most important
functions and activities of a non-political character. Its main
business, therefore, was 'to make provision for bringing the League
of Nations to an end in orderly fashion, so that as much as possible
of its surviving work can be continued without interruption and as
much as possible of its property can be used to promote those high
purposes of international peace and co-operation for which the
League itself was founded'."
And so, Mr. President, we find that in these negotiations, a common
plan was drawn up for the handing over of assets, and that common plan
was approved by a resolution of the League at its final session. It was
actually one of the paragraphs providing for the dissolution of the League.
Another paragraph in that same resolution providing for dissolution,
provided for the appointment of a board of liquidation, which was to
represent the League for the purpose of effecting its liquidation. This
board, Mr. President, was specifically enjoined to do the following:
"Subject to the provisions of this resolution and other relevant
decisions taken by the Assembly at the present session, the Board
shall have full power to give such directions, make such agreements
and take all such measures as in its discretion it considers appropria te
for thispurpose." (II, p. 45·)
In other words, in taking action, in pursuance of this resolution to
dissolve the League, the board had to act not only with reference to the420 SOUTH 'WEST AFRICA
provisions of the resolution itself, and not only with reference toits dis
cretion, but also with reference to other relevant decisions taken by the
Assembly at the present session. This is a point which assumes particular
significance in view ofthe nature of the Applicants' contention of a gen
eral tacit consensus regarding a transfer of powers, or a substitution of
supervisory organsin respect of mandates.
Mr. President, we fmd that for the guidance of this board of liquidation,
in general, and with a view to co-operating with the ideas of the United
Nations in regard to the resolutions which had already been taken con
cerning functions and powers, the League passed two resolutions, which
are set out at page 45, of the Counter-Memorial (Il). The first one is set
out in paragraph 39, under the heading "The Assumption by the United
Nations of Functions and Powers hitherto exercised by the League
under International Agreements". In so far as is relevant, it adopted
certain resolutions regarding the custody of the original texts of inter
national agreements, and also regarding functions and powers arising out
of international agreements of a technical and non-political character.
The resolution about custody of original texts of international agree:
ments is not quoted in our Counter-Memorial, but the effect of it was an
instruction to the Secretary-General to transfer ail those texts and rele
vant records to the United Nations Secretariat, at a time that might be
convenient to the United Nations. One finds that in the relevant League
document, refèrred to in the footnote on page 46.
The resolution about functions and powers arising out of international
agreements of a technical and non-political character, took the form that:
"The Assembly recommends the Governments of the Members of
the League to facilitate in every way the assumption without in
terruption by the United Nations, or by specialized agencies brought
into relationship with that organizatwn, of functions and powers
which have been entrusted to the League of Nations, under inter
national agreements of a technical and non-political character, and
which the United Nations is willing to maintain." (Il, p. 45.)
The gist of it is,r. President, a recommendation to the governments
of Members of the League to facilitate the assumption of powers and
functions out of instruments'of a techniçal and non-political nature.
There is nothing here of the nature, shall I say, of an international
agreement between Members of the League on this point, or between the
League and the United Nations on this point. It is merely a matter of
encouraging governments of Members of the League to co-operate with
the United Nations in that regard.
So here, there was no question of any agreement arising, which might
require registration.
The same applied to the resolution "The Assumption by the United
Nations of Functions and Powers hitherto exercised by the League",
which conccrns, in general, various non-political activities,and again the
effect of it was that the Secretary-General of the League was directed to
afford every facility for the assumption by the United Nations of those
non-political activities. So, again, inthat respect, there was nothing in
the resolution itself of the nature of an international agreement which
required registration.
The position was different, Mr. President, in regard to the common
plan referring to assets, because that related to international agreement, ARGUMENT OF MR, DE VILLIERS 421
and the position would, in my submission, also have been different in
relation to the suggested common tacit consensus on the part of every
body concerned, regarding a possible substitution of supervisory organs
in respect of mandates, because what would that have amounted to? It
would have amounted to an agreement between all the Members of the
League and the mandatory powers, that mandates could now be regarded
as being amended in that particular respect-that whereas the Mandate
spoke of supervision of mandatory administration by organs of the
League, the mandates are now to be regarded as amended to the effect
that there will now be supervision by organs of the United Nations. That
could only come about by agreement between the interested parties, who
were the Members of the League, and the mandatory. It would amount
to imposing upon the mandatories either a new obligation, in that re
gard, or an amended obligation, depending on how one looks upon it,
and that could only come about by new international agreement.
In the light of this background, it is interesting, Mr. Presidentto note
how the matter was further dealt with, fi.rst, by way of registration,
under Article ro2, in the Treaty Series of the United Nations, and then in
regard to the further actions of this board of liquidation-how it viewed
these varions matters, and how it saw its task, and reported on the com
pletion of its task in that regard.
The Treaty Series of the United Nations, Volume 1, for the period 1946-
1947. contains an introduction by the Secretariat in which it explains
the system to be followed inthis Treaty Series. It refers first, at page XIV
of this introduction, to the provisions of Article 102 of the Charter, which
I have already read. It points out further, Mr. President, that Part r of
the Series would cover cases falling under Article 102 of the Charter.· It
also points ont, at the same page, that this Treaty Series wonld not only
contain treaties or agreements falling only under Article 102. It would
also contain treaties and agreements falling under Article ro of certain
regulations adopted by the United Nations General Assembly, which
provided, inter alia, for the registration of treaties or international agree
ments entered into by the United Nations, or by one or more of the
specialized agencies. ·
It explained, in regard to this latter class of treaties and agreements
to be registered, that they would come in Part II of this Treaty Series.
Mr. President, one other point I wish to emphasize from the introduc
tion is found on page XVI, and that concerns registration, under Part 1,
of treaties and international agreements falling under Article 102 of the
Charter.. The Secretariat says:
"The exact meaning of the term 'treaties and international agree
ments' has been the subject of discussion. In this connection, the
Secretariat thought it necessary to conforrn to the interpretation of
the term 'agreement' given in the report of Committee IV/2, of the
San Francisco Conference which includes 'unilateral engagements
of an international character which have been accepted'. "
So that interpretation is then given to treaties and international agree
ments for the purposes of this registration, and on the basis thereof we
turn to the contents of Parts 1 and Il, in which is set out what it was con
sidered necessary to register in respect of these events that passed at
the last session of the League Assembly.422 SOUTH .WEST AFRICA
[Public hearing of6 April I965]
Mr. President, at the adjournment yesterday I was dealing with
certain events which followed upon the dissolution of the League as being
relevant material, in that they threw further light on the intentions of
the States which attended the last session of the League in April 1946.
I dealt in that regard with the United Nations Treaty Series, and
referred the Court to the introduction written by the Secretariat of the
United Nations to the scheme set out in the introduction to Part I
thereof, which relates to treaties falling under Articl102 of the Covenant,
and then to Part II thereof, which covers cases falling under Regulation
roof the regulations approved by the General Assembly. The differences
for our purposes were that under PartI, that is, under Article102 of the
Charter, fail those cases where the parties, or sorne of them, were Mem~
bers of the United Nations, and the treaties or agreements had of course
to be entered into after the coming into force of the Charter. In the other
case, under Part II-that would be under Regulation ro-fall cases
outside Article 102: they could be of varions classes, but for our purposes
the important class would be treaties or agreements to which the United
Nations itself, or a specialized agency, was a party.
I referred the Court also to the definition which was discussed by the
Secretariat for purposes of their work on this introduction (at p. XVI),
namely that international agreements would include unilateral engage
ments of an international character which had been accepted. Mr.
President, that definition would, in my submission, exactly cover the
construction which my learned friends for the Applicants put upon
the mandatories' acceptance of the League's last resolution regarding
mandates. The Court will recall that their construction îs that, by accep
ting that last resolution of the League, the manda tories accepted engage
ments to observe ali obligations under the mandate, including accoun
tability, with the United Nations then substituted as the supervising
authority.
On that construction the engagements by the various mandatories
would have been accepted by the other Members of the League which
participated in that resolution, and we would tberefore have an exact
.case covered by this definition, set out by the Secretariat as a basis upon
which they were registering treaties and international agreements in this
way.
Now, Mr. President, in PartI of the volume, falling under Article 102,
we find nothing of relevance to our purposes. There is nothipg about
mandates, as one would have expected if the construction of my learned
friends was the correct one and if that had been the intent of the persons
concerned.
As far as the other matters which were discussed at the final session of
the League Assembly are concerned, it is not surprising that Part I
contajns no reference thereto. For instance, the matter of the transfer of
assets took the form of an agreement between the two organizations,
namely the League and the United Nations. One would therefore expect
that to be dealt with in the second part of the Series and one finds, in
fact, that it is dealt with there.
In regard to the question of assumption of functions, powers and
activities of a non-political character by the United Nations, the Court
will recall that there was nothing of the nature of an agreement, either ARGUMENT OF MR. DE VILLIERS
between the organizations or between the States concemed. The final
resolutions ofthe League partook of the form that either the States or the
Secretary-General was requested and enjoined to take ail necessary steps
to co-operate with the United Nations in the assumption of such func
tions and powers, so that there was nothing of the nature of an agreement
involved in those resolutions themselves. The situation was different in
regard to mandates-on the construction which the Applicants wish to
place upon it-and yet it is significant, that no such agreement in regard
to mandates is contained in Part 1 of the Series.
1 might point out further, Mr. President, in that regard, that the
League itself, at its final session, did not adopt any resolution on the
question of political functions which corresponds with the United
Nations resolution on that point. The reason for that was probably the
forrn which the United Nations resolution took on that very point. The
United Nations resolution did not express any general willingness to
accept or to adopt functions of the League in regard to instruments with
a political character. The idea was that each case would be adjudged by
the United Nations on its own merits and there would have to be an
application by the parties concemed and a decision by the General
Assembly, or other organ acceding to that application. The League
probably considered that it had no function in that regard, that that was
a matter to be left to the ad hoc treatment which was envisaged in the
United Nations resolution.
But, Mr. President, on the Applicants' construction of what the general
agreement was in regard to mandates, that would certainly have been
an exception. That would have involved engagements on the part of
the mandatories and acceptance of those engagements on the part of the
other States concerned; in other words, an agreement between Members of
the United Nations and Members of the League-but also, to a large
extent, l\1embersof the United Nations-which would require registration
under Article 102.
In the second part of this Treaty Series, Mr. President, falling under
Regulation ro, one finds that the fi.rst six items all emanate from matters
which were dealt with at the final session of the League Assembly. But
again one finds in all those six items no reference at all to the case of
mandates. One finds item No. 2 of Part II on pages 109 to II7 of this
volume, which is the agreement to give effect to the common plan for the
transfer of assets. The agreement partook of the form, as I have said, of
the United Nations being a party toit, the League being the other party
thereto acting through representatives, and this agreement therefore
came to be registered under Part II of the Series.
Items Nos. 1,4 and 6 of Part II in this volume refer to certain specifie
matters which were concemed with the transfer of assets. More detailed
aspects, particular problems which arose, are to be found at pages 97,
131 and 140, respectively, of this first volume, and the same considera
tions apply to them as in the case of item No. 2.
Items Nos. 3 and 5 are agreements which refer, in part, to a transfer of
assets, but they are, in fact, mainly concerned with the transfer of certain
services and activities, such as library services, stenographie services,
roneo services, and so forth. One finds them at pages ng et seq. and 137
et seq.of this work.
These agreements in regard to the transfer of these services and activi
ties were made in pursuance of the resolutions of the League and of the SOUTH WEST AFRICA
United Nations on the very question of an assumption by the United
Nations of non-political activities.
So, Mr. President, 1 submit that the omission of any agreement in
regard to mandates from this whole treatment of the subject is very
significant. Apart from the effect which such an omission might have
on the validity of any such agreement, as is contended for on behalf of
the Applicants, I submit that the more significant aspect of this omission
isthe indication which it affords as to the intent of the persans concerned,
on the question whether there was any conception on the part of those
who participated in the last session of the League Assembly and on the
part of those who were charged with the execution of the decisions and
resolutions arrived at on that occasion, that there was any such agreement
as is contended. My submission is that this omission serves as a clear
indication to the contrary, and the matter becomes even more clear if we
proceed to consider, in conjunction with the registration aspect, the
.report of the Board of Liquidation which was appointed at that last
session.
The Court will recall, Mr. President, that this Board was enjoined to
have regard in the performance of its task to all relevant decisions of the
League Assembly taken at its last session. I quoted that portion from its
terms of reference yesterday. It is contained in our Counter-Memorial,
II, page 45· (P. 420, supra.)
In the report itself we find, Mr. President, that the Board "very con
scientiously endeavoured to comply with this requirement", and to have
regard in its task to all those relevant resolutions and decisions. We find
that PartI of the report, running up to page 10, is headed "General" and
it is concerned, in the main, with financial aspects of the liquidation.
That was in accordance with the main resolution which the League took
on the question of the liquidation.
Then we pass to Part II and we find that is divided into a number of
chapters, and that the headings of three of the first four chapters are
very significant. The heading of Chapter r of Part II is "Disposai of
Material Assets". The heading of Chapter 3 is "Assumption of Activities
by the United Nations and Specialized Agencies". The heading to
Chapter 4 is "Disposai of Non-Transferable Activities, Funds and
Services".
In Chapter I there is a reference to the common plan and to the steps
that were taken in pursuance of the common plan in regard to transfer.
There is in this regard, therefore, also a reference to the agreements to
which I have referred and which are registered in the volume of the
Treaty Series, which I have discussed. That part of this report we find at
pages n-12.
Then, Mr. President, in Chapter 3 under the heading "Assumption of
Activities by the United Nations and Specialized Agencies", we find
references in the first introductory paragraph to the varions resolutions
taken at the last session of the League Assembly on these subjects. The
matter is grouped under three headings and the report proceeds to deal
with the subject-matter under these three headings. The first heading is
"(a) Treaty Registration". The report states in this regard that-
"The continuity of this work is of prime importance to ali States
and the maintenance of the system inaugurated by the League has
been assured by the Charter of the United Nations. Thus thereshould
be no break in the Treaty Series, of which 205 volumes have been ARGUMENT OF MR. DE VILLIERS
published by the League. Formai transfer took place on r August
1946. The originals of international labour conventions had already
been handed over to the International Labour Office."
One has here a recording of an actual transfer which took place in this
respect in pursuance of the relevant resolution of the League.
The second group is entitled "(b) Transfer of Powers and Functions
Performed by the League under International Agreements of a Technical
and Non-Political Character". The report's reference to this group reads:
"This group includes powers and functions provided for in more
than fifty Conventions on communications and transit, economie and
financial questions, the work of narcotic drug control, health
questions, legal questions and questions of a social and humanitarian
character. The duties of the League in respect of these subjects were
transferred to ·the United Nations at dates convenient to that
Organization, the last being handed over on r October 1946"-
agam, Mr. President, action in pursuance of the relevant parallel resolu
tions of the United Nations, and partiqùarly of the League, instructing
its Secretariat to take the necessary action in that regard and calling
upon Member States to co-operate and as:;;ist..
Thirdly, under the heading "(c) Transfer of Certain Non-Political
Activities to the United Nations", we find these words:
"The responsibilities of the Secretariat, relating to matters
mentioned under (b) above, the Library Service, Publication
Service and the Central and Internai Services were transferred to the
United Nations at dates convenient to that body, with the result
that the latter was able to ensure their continuation without inter-
.ruption. The last of these services wa? transferred on I October
1946."
Again, Mr. President, the sarne comment applies as that in regard to the
previous group.
This makes the treatment of mandates in the next chapter stand out
in very marked contrast. The heading of the chapter, Chapter 4, page rg,
is "Disposai of Non-Transferable Activities, Funds and Services". The
chapter deals, in the course of the next two pages, with sorne six subjects
under varions headings and the last heading is "(F) Mandates; Protection
of Minorities". These two subjects are grouped together under this last
heading. The first two sentences apply to the case of mandates and the
last one to protection of minorities. I shall read the first two.
"On the proposal of the First Committee, the 1946 Assembly
adopted a resolution whereby it 'recognizes that, on the termination
of the League's existence, its functions with respect to the mandated
territories will come to an end, but notes 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' ."
Those words were a quotation from the resolution. The report continues:
"The mandates system inaugurated by the League has thus been
brought to a close, but the Board is glad to be able to record that the
experience gained by the Secretariat in this matter has not been
lost,the United Nations having taken over, with the small remaining
staffthe Mandates Section's archives, which should afford valuable SOUTH WEST AFRICA
guidance to those concerned with the administration of the Trustee
ship system set up by the Charter of that organization."
Mr. President, it is very significant that ail that is taken over here is the
mandates section's archives with the smali remaining staff-nothing
else-no functions or activities. Also, Mr. President, the expectation, the
anticipation, of valuable guidance which this transfer should afford,
does not relate to the question of supervision over mandates as mandates.
The guidance is foreseen as being valuable only to those concerned with
the administration of the trusteeship system set up by the Charter.
Clearly, Mr. President, there was no contemplation whatsoever on the
part of the authors of this report that there was to be any supervision of
mandates outside the trusteeship system.
So we find that the evidence mounts independently from aUsides. We
saw the very strong-the unanswerable indications of intent, as I
analysed them yesterday, resulting from the actions of the mandatories;
the statements on behalf of the mandatories, the history in regard to
the Chinese proposais; the wording of the final resolution of the League in
contrast with the earlier indications and the accumulative effect of ali
these factors. We pointed, also, to the way in which the mandatories
were obviously understood and the light which was thrown on that by, for
instance, the subsequent conduct of the parties and by the passage in the
Palestine Commission's report, to which l referred. Here we get inde
pendent evidence. We get officials-we get office-bearers-who were
specially charged with the execution of the decisions taken at the final
session of the League, and with the duty of taking further steps in
pursuance thereof. They conscientiously performed their task in relation
to treaty registration and registration of international agreements, they
performed their task in regard to the liquidation of the League and to
assisting in the handing over of ali functions and activities that were
intended to be handed over to the United Nations; and they recorded
that, in the case of mandates, that everything had come to an end, except
for archives and a small remaining staff and the assistance which it could
give in the administration of the trusteeship system.
This, Mr. President, then takes us to the next phase in the historical
development, namely the further events in the United Nations after the
dissolution of the League.
The Applicants in this regard gave, in their oral statement, a detailed
survey of events which took place as from the time that the United
Nations began operations in 1946. They then reached the foliowing
conclusions:
" ... while there was disagreement among severa] Members of the
United Nations with regard to the existence of the mandate and the
obli~at of intesnational accountability, the view of the United
NatiOns, as a whole, expressed through its resolutions on the subject,
demonstrated its understanding that the Mandate remained in full
force and effect and that the United Nations had supervisory authority
over the Territory.
• • 1 • ~ • • 1 ~ • • • • • • • • • • • • • •
Respondent, through the several declarations and statements
heretofore discussed, also demonstrated its recognition of the
continuance of the obligations of the Mandate after the dissolution
of the League. lt was not until the autumn of 1947 that supervisory ARGUMENT OF MR. DE VILLIERS 427
authority of the United Nations was questioned, and not until
November 1948 was it argued by Respondent that the Mandate
had lapsed.
Hence, the actions of the League Assembly, of the United Nations,
and relevant statements and actions of the Respondent, combine to
support the conclusion that the Mandate and all of the obligations
contained therein survived the dissolution of the League, and that
the United Nations replaced the League as the supervisory organ
over the Mandate." (P. 165, supra.) '
Those are the Applicants' contentions in regard ta thls period I am about
ta deal with although, of course, it covers, in their contention, an ante
cedent period also, with which I have dealt, namely the history up to the
time of the dissolution of the League in April 1946.
Iintend to deal with this same tapie in the next phase: on the one band,
the actions of the League and the United Nations, as the Applicants call
them; and on the other band, what they term the "relevant statements
and actions of the Respondent".
We shall concentrate first, Mr. President, on the question of the
"relevant statements and actions of the Respondent", with due regard
to their setting in relation ta other events which occurred at the tirne,
because these "relevant statements and actions" on the part of the
Respondent form the crux of this whole matter. If there was to be found
on the part of the Respondent an,v consent ta or acquiescence in a
substitution of supervisory organs, Itwould have to be found in these
"statements and actions"; it could not be found any:vhere else. And the
Applicants accept that it is necessary ta estabhsh such consent or
acquiescence on the part of the Respondent. It is, therefore, necessary,
in the first place, ta ascertain what these "statements and actions",
fairly construed in their context and in their setting, conveyed. Secondly,
the question arises, how they were in fact understood by the other parties
concerned. We concentrate on this fust part fi.rst, and then we proceed to
consider the attitudes expressed and the action taken by other United
Nations Members. Mr. President, this last factor is important, because
of the indications which it affords as to the view which United Nations
Members took in general of the situation in relation to mandates, and
particularly the Mandate for South West Africa, but also because it
affords the best evidence one can get of how the statements and actions
of the Respondent were actually understood by the other Members of the
United Nations. We submit, Mr. President, that when this review has
been undertaken fully, and with proper regard ta context, it will be
apparent that the result is diametrically opposed ta that contended for
by the Applicants. But for the purposes of this review we have to avoid
certain errors which are, in our submission, inherent in the Applicants'
approach, and it may be best ta point them out straight away at the
beginning.
In the first place, Mr. President, the whole of the relevant evidence is
to be considered, not isolated bits and pieces taken out of their setting
and out of their context, and thrown together as if they afforded the only
relevant evidence on the subject.
Secondly, the matter is not to be approached, as the Applicants do,
from a wrong premise, ta the effect that, as at the dissolution of the
League, the Respondent bad already indicated, and had already been
understood ta indicate, acceptance of a continued obligation of account- SOUTH WEST AFRICA
ability under the mandate, with the General Assembly of the United
Nations substituted as supervisory organ. That is the premise from which
the Applicants approach their review of this part of the relevant facts
-as if there had already, prior to this period, and at the stage of disso
lution of the League and even prior to that stage, been manifestations on
Respondent's fart of acceptance of aU obligations-of the continued
operation of al obligations under the mandate, including accountability,
and with substitution of a new supervisory organ. That premise, 1
submit, 1 have demonstrated conclusively to be a wrong one. On the
contrary, Respondent together with ali the other mandatories had indi
cated, very clearly that in respect of accountability the previous position
could not be maintained: it and the other manda tories bad intimated very
clearly, that they considered that there could be no accountability under
the mandate, and they were very clearly understood by the other
l\lembers of the League and the Members of the United Nations ta have
taken that attitude-the attitude being not only that there would be no
accountability, but also that they would in fact not report and account
in regard to compliance with their obligations under the mandate.
The Applicants, Mr. President, are also wrong in another assumption,
and that is that an indication on the part of a State that the mandate
itself continued in existence implied, at the same time, continued
accountability under the mandate, either in relation to the suggested new
supervisory organ, or at all. 1 have dealt before, Mr. President, with the
logical distinction between those two things: with the reasons why, if at
a particular time any State said that in its contemplation the mandate
was stili in existence, it did not necessarily mean that in that State's
contemplation accountability under the mandate also remained in
existence. 1 do not want to deal with the logic and the general principles
of that distinction again at this particular stage. When 1 dealt with the
matter before, I indicated to the Court that in our review of the facts we
would demonstrate that that assumption is factually not true and that,
whatever the legal position might be as to severability or inseverability
of accountability from the rest of the mandate institution, the States
which expressed themselves on this subject, in fact, from time. to time
took up the attitude that a mandate could exist but that there would
nevertheless be no accountability under the mandate. This factor becomes
particularly clear inthe history of the events with which we are about to
deal now.
1 must concede at the outset, Mr. President, that statements made
on behalf of the South African Government during those first few years
after the dissolution of the League did convey a conception on the part of
the South African Government that the Mandate as such could be
regarded as still in operation, or at least that the situation was being
handled by the South African Government as if the Mandate was still
in force. That is clear-whatever legal significance one wants to attach
to that factor is another matter with which I shaHdeal later in relation to
the question whether the Mandate is still to be regarded as in existence in
law-that that was in fact the kind of intimation that was given by the
Government at that particular stage is so, and it is a fact from which I
will not in the least attempt to escape.
It is also a well-known fact of history-1 need not try to bide it,
because there is no secret about it-that in this particular regard, i.e.,
on the question whether the Mandate could legally still be regarded as ARGUME::-<TOF MR. DE VILLIERS
in existence or not, there was a difference of opinion between the then
South African Government and the one which succeedcd it in 1948.
And that is why one finds this reference by my leamed friends to the
changed attitude expressed on that particular subject as from the years
late 1948-beginning 1949, and so forth. As the Court knows, there was a
change of Govemment in 1948-we might, for convenience, refer to
the previous Govemment as the Smuts Government; the later Govern
ment, which succeeded it in 1948, was under the leadership of Dr. Malan.
And it is a well-known fact that leading members of those two Govern
ments differed with one another on this legal question regarding the
continued existence of the Mandate qua Mandate. That is not surprising,
Mr. President, in view ofthe fact that those were not the only quarters in
which there was a difference of opinion on that subject ..The difference of
opinion extended to a number of States. ln our rev1ewof the attitudes of
States we shaH indicate to what extent States themselves, in this relevant
period, differed from one another on this question, and to what extent
they were inconsistent even with themselves on that point.
It is also a well-known fact that lawyers, discussing the various
problems which arose in regard to the mandates system, differed from
one another on this particular point. That again is not surprising, in view
of the fact that the mandate was in fact a novel international institution.
It did not fit in a ready made rnanner into the classical conceptions of
sovereignty--of a cession of territory and the like-and a new under
standing was necessary to assign to this novel institution its exact place in
the concepts of international law. .
We know, for instance, Mr. President, that many students of the subject
looked upon the mandate institution as something which involved a
cession of territory to the mandatories, subject, however, to conventional
obligations-treaty obligations-which comprised both the substantive
obligations under the mandate and the obligation of accountability to the
League. In other words, according to that view the mandate institution
was something in the nature of ownership subject to an onus-subject to
what wemight caU, in our law, a servitude--or what is called an casernent
in English •Iaw-something of the nature of a burden resting on title
so that, if and when the League disappeared, and if with the disappear
ance of the League that burden was seen as disappearing, then the
ownership itselfblossomed forth into something absolute. (I use the term
ownership, of course, by way of analogy-the concept here would be full
sovereignty pursuant to a cession of territory in the beginning.) 1am not
contending for that construction, 1 am merely painting out that it is a
well-known fact that many lawyers held that type of view of the situation.
This Court in 1950 showed that it was very fully aware of that fact--of
those differences of opinion which had arisen between lawyers in this
regard. That is why one finds that in its discussion of the basic question
whether the Mandate was still in existence, the Court itself, in the main
opinion, and particularly Sir Arnold McNair in his separate opinion,
concentrated on questions of this kind. The Court emphasized that the
whole concept of a cession of territory was inapplicable here; that it was
not a question of cession of territory subject to treaty obligations, but
that the title that was given to a mandatory was a limited one, that the
powers given were limited to the purpose of executing the trust which
was imposed on the mandatory for the benefit of the inhabitants of the
territ ory. But I am painting to these various questions of what one might430 SOUTH WEST AFRICA
cali a legal nicety which arose between lawyers, between States, and
between all interested persons, as being a very natural explanation for the
degree of vacillation and difference of opinion which manifested itself in
that period also between the two successive South African Governments.
And, Mr. President, what I do want to emphasize at this particular stage
is that there was no difference of opinion whatsoever between the said
South African Governments on the question whether there was account
ability under the Mandate to the United Nations. There the attitude
taken by the two Governments was exactly the same and absolutely
consistent.
It was not only so, as far as the South African Governments-those two
successive Governments-were concerned; it also applied to United
Nations Members at the time, namely to the way in which they saw the
situation. A number of them, as I have said, expressed themselves to
the effect that the Mandate had lapsed. Others considered that the
Mandate had not lapsed, but our review will show that during the period
1946 to 1949 there was almost complete agreement on the part of
United Nations Members on the fact that, outside trusteeship, there
was no accountability in respect of administration over mandated ter
ritories to the United Nations.
Then, Mr. President, there is a further respect in which the Applicants
approach this whole review in the wrong manner, in our submission. It
relates to a confusion between two other concepts which are really to be
kept separate-an attempt to equate or assimilate those two concepts.
There is, Mr. President, on the one hand, the concept of supervision by
an international organization of administration of a terri tory, and, on the
other hand, the concept of coming to an agreement with such an inter
national organization about the future status of such a territory. The one
isthe continuing concept of international supervision, the other is that of
a specifie arrangement made with an organization-an agreement made
with it regarding the future status of the territory. These two concepts,
as the Court will be aware, the Applicants attempted to assimilate in
their argument, and, I submit, completely without any justification
whatever. Notionally and as a matter of logic the two concepts are
entirely distinct. Under the concept of supervision by an international
organization, that is, one of a continuons process involving the passing
of value judgments over acts of government and administration as and
when they arise-depending on the policy pursued in the particular
organization, or on the specifie rules that there may be in regard to the
exercise of its power of supervision-there may be a greater or a lesser
amount of interference in the acts of government and administration on
the part of the supervisory authority. And that might happen at any
time. The whole process, as I have emphasized, is of a continuons and
recurriilg kind. It is, therefore, seen, from the point of view of the party
who submits to it in practice, as an extremely onerous obligation. How
onerous, would depend, of course, on the exact policy of the supervising
authority.
The othcr concept, Mr. President-that of coming to an agreement
with an organization-an international organization-about the future
status of a territory-is something quite different. It is something which
is confined to a particular occasion, that occasion being the attempt to
secure agreement between the State which seeks it and the other Members
of the organization. It is an act which is intended purely to avoid subse- ARGUMENT OF MR. DE VILLIERS 431
quent disputes and controversies ~bou he status of a territory. The
whole approach to a case of that kind on the part of States which may
refer such a question to an organization Iike the United Nations, appears
to be this: here we have an international organization, composed of the
large majority of the States in the world, and, if we can now, by agree
ment between ourselves and that organization, find a mutually acceptable
solution to the question of the future of a particular territory, then that
should for all practical purposes exelude further controversy and difficulty
about it-at any rate, controversy as to questions of the status of that
territory and the exact relationship between it and the State which
referred the matter to the international organization.
The fact, therefore, Mr. President, that such an agreement is sought
about a new arrangement in regard to the future status of a territory,
cannot by any stretch of imagination imply, or hold within itself, any
concept' of submitting to the supervision of that organization regarding
administration of that territory.
There are many practical examples by which I can illustrate this
distinction. Let me take as a first example the. final resolution of the
League Assembly. The Court will recall that in the last paragraph of that
resolution the League gave expression to a contemplation that other
arrangements between the mandatory powers and the United Nations
might be agreed upon. Nevertheless, the history of that resolution, its
wording, and aH the factors with which I dealt yesterday and this
morning, demonstrate that on the part of the participants in that
resolution there was no concept of supervision by the United Nations
over mandated territories before such new or fresh arrangements might
be agreed to. The distinction between those two notions was quite clear
in the contemplation of the very States which were present at the time
of adoption of that final resolution. And it stands to reason that it should
have been so. They contemplated that the new arrangements might have
results one way or the other, as my learned friends concede. The new
arrangements-the new agreements-might involve trusteeship over a
territory previously under mandate, and that trusteeship would then
involve the kind of supervision which is provided for in the Charter of
the United Nations in respect of trusteeship. The arrangements might
provide that a territory should become independent-a situation which
would involve no supervision whatsoever. Or the arrangements might
provide that a territory would be divided, as eventually happened in the
case of Palestine. Or they might have provided that there would be
incorporation of a territory with another territory, as was proposed in
regard to South West Africa. Surely, therefore, the mere fact that there
was a contemplation that such new agreements might be entered into
with the United Nations did not involve any concept of supervision b,v.
the United Nations as a necessary corollary. It was something which, 1f
it was to originate, would have had to originate from a new agreement
with the United Nations.
The next example 1 would like to bring to the notice of the Court IS
cases where reference to the United Nations for purposes of coming to a
new agreement about status did not concern a mandated or trust territ ory
at aiL Let us take, Mr. President, the case of Eritrea. That case was dealt
with in the Peace Treaty of Paris-the treaty with Italy-of ro February
1947. In terms of that treaty it was decided that Eritrea would remain
under British control until the United Kingdom, France, the United432 SOUTH WEST AFRICA
States and the Soviet Union had decided on the territory's future. It was
further decided and agreed that if those four powers could not agree, the
matter should be submitted to the General Assembly of the United
Nations. In fact, the four powers could not reach agreement, and the
matter was then submitted to the General Assembly. On 17 May 1949
there was a vote on a resolution providîng, inter alia, that Eritrea should
be split into a westernpart, to be given to the Sudan, and an eastern part,
to be ceded to Ethiopia; but this proposed resolution was rejected by
the General Assembly. On 21 November 1949 the Assembly adopted by a
majority of votes a resolution that Eritrea should forma federation with
Ethiopia. One fi.ndsthe references, Mr. President, in the General Assembly
OtficialRecords, Fourth Session, 250th meeting, dated 21 November 1949.
The reports from the First and the Fifth Committees which were con
sidered, were documents A/1089 and A(II09, respectively. There was a
minority proposai, supported, inter alia, by the Soviet Union, that
Eritrea should be made in dependent, but that was rejected.
Then, Mr. President, we have a case where parties try to agree amongst
themselves-a small, limited group of parties; they attempt to agree
between themselves on the future of a territory, pursuant to a situation
which has arisen after a war. The territory is not a trust territory; it is
not a mandated territory; it is not under any international supervision
whatsoever. They, however, agree amongst themselves that if they
cannat come to agreement on this particular point, they will submit the
matter to the international organization; and when a decision is given by
that international organization which leads to complete agreement upon
the subject, the question is settled. Then one gets a settled condition, and
the potential dispute is no longer in existence. It is, Mr. President, an
action similar to action which is taken by a State through ordînary
diplomatie channels after there has been an upheavallike a revolution,
or a similar condition, and that State or government therefore finds it
necessary to obtain international recognition. It is the same idea,
although not exactly fitted into the same legal moulds and legal concepts,
of course. 1 am not suggesting that; but there is the same idea of eradi
cating a difference of opinion, and dispute aboutit, so asto have a settled
situation.
That is indeed the manner in which the South African representative
at the last session of the League expressed his conception of the matter.
May I refer the Court to the statement in the Counter-Memorial (II), at
page 47:
"... it is the intention of the Union Government, at the forthcoming
session of the United Nations General Assembly in New York, to
formulate its case for according South-West Africa a status under
which it would be internationally recognized as an integral part of
the Union".
Another example, Mr. President, falling in the same category as
Eritrea, is the case of West Irian-the same category in the sense that
this was not a trust territory, or a territory under international super
vision-and yet the question of its future was, at a particular stage,
referred to the United Nations by the powers concerned. There was an
agreement of 15 August 1962 between the Netherlands and Indonesia,
and that provided, amongst other things, that alter the General Assembly
ofthe United Nations had accepted a joint resolution proposed by these ARGUMENT OF MR. DE VILLIERS 433
two States, the Netherlands would cede West Irian to a new international
body to be called the United Nations Temporary Executive Authority.
This temporary body would cede West Irian to Indonesia on r May rg63.
We find the reference to this in United Nations document A/SIJO.There
was a draft resolution sponsored by lndonesia and the Netherlands
(reference A/L 393), incorpora ting this agreement, which was proposed
to the General Assembly and adopted by it on zr September rg62
(reference in the records of the General Assembly, r7th Session, rr27th
Meeting, pp. 49 etseq.)-again, Mr. President, a case where there was no
question whatsoever of international supervision, but where this proce
dure was adopted in order to geta settled condition-in order to achieve
a new arrangement with a settled practical result-in regard to the future
status of a territory.
The fact that this had nothing to do with any concept of international
supervision was, indeed, stressed in the debate by the representative of
India, Mr. Krishna Menon. We find this at page 57 of this debate. His
words were these :
"We also want to say that this period of the presence of the United
Nations is in no sense a period when its authority will be exercised
as a kind of supervisory authority in the place. The United Nations
will have very limited functions."
Palestine itself, of course, Mr. President, affords a similar example,
except for the fact that Palestine was a mandated territory. But there,
too, the Mandatory Power, the United Kingdom, in referring the matter
to the United Nations, made it perfectly clear that this was not submit
ting the case of Palestine to United Nations supervision. The details of
the situation in that regard have been brought into dispute by my learned
friend's argument, and those details will be dealt with at a later stage
when dealing with the attitudes of the various States upon the question
of mandates at that particular time. I am merely mentioning at this stage
in broad outline what, in our submission, and as the details will later
show is clearly a case where a matter was referred to the United Nations
for a solution asto the further status of a territory, although there was
no anticipation whatsoever and no conception of international supervision
over that territory.
Mr. President, the United Nations Charter, Article r, might usefully
be referred to in this regard, to indicate the wide objectives of the Orgam
zation and the sense, the practicalsense, in which questions of this na
ture may be brought before that Organization. In paragraph r, Articler,
we find one of the purposes of the United Nations stated as follows:
"To bring about by peaceful means, and in conformity with the
principles of justice and international law, adjustment or settlement
of international disputesor situations which might lead to a breach
of the peace."
In the third paragraph we find this:
"To achieve international co-operation in solving international
problem of~,n economie, social, cultural, or humanitarian char
acter ...
In the fourth paragraph, Mr. President, we find: "To be a centre for
hannonizÎI1g the actions of nations in the attainment of these common
ends."434 SOUTH WEST AFRICA
It seems perfectly obvious that when a matter of that kind is referred
to the United Nations, it need have no bearing whatsoever on any ques.
tion of supervision of administration.
I know, Mr. President, that the Applicants have a rather ingenions
argument in this regard. They go back to the time of the League and of
the mandates system, and they let us look at the interrelationship be
tween Article 6 and Article 7, paragraph r, of the Mandate. They say
Article 6 provided for supervision, and that the body assigned to that
task of supervision was the Council of the League.
Now, Article 7 {1) provides for a possible modification of the terms of
the Mandate-a modification which may, or may not, lead to a change
in the status of the territory. Machinery is agreed upon whereby it would
be possible to effect such a modification. The machinery provides for
agreement between the mandatory and an organ of the international
organization. For that purpose, the choice is made of that same organ
which exercises the supervisory function, and my learned friends say,
and I agree with them entirely, that if one makes an agreement of that
kind, it is sound common·sense to make one's choice in that way because
that is the organ which would know most of the intimate details of the
problem and would be in the best position to exercise a judgment on the
question whether there is to be a modification ofthe terms of the Mandate,
or not.
So far, so good, Mr. President, but it does not follow that that com
bination is always to apply. In particular, Mr. President, it does not fol
low that the reverse process is to apply. We must remember that in the
League system we begin with an agreement on the part of ail concerned
that there is to be international supervision. That wc find in Article 22
of the Covenant. It is only when we come to the mandate instruments
that we find this provision in Article 7 (r). It does not appear in the
Covenant itself; it is something consequential-something subsequently
agreed upon. That is the order of events, therefore, in the case of the
arrangements actually made in the case of mandates. But, Mr. President,
if one starts from the initial position that there is no conception of inter
national accountability, and there is an intention of making provision for
a change in the status of the territory, or an idea of taking actual steps
in order to secure a change in the status of the territory, then the mere
fact that that contemplation involves going to a particular international
organization about it, surely cannot possibly carry with it a contempla
tion that there must also be this more onerous obligation, about which
nobody has said anything, namely that of international supervision by
that organization over the actual administration of the territory.
The logic simply does not work, Mr. President. lt does not apply.
It is, then, against this background, and with an appreciation of these
distinctions, that the facts of the pcriod under consideration are to be
reviewed and dealt with.
In commencing their analysis of the relevant historical occurrences,
as they called them, at the United Nations between the years 1946 and
1949, the Applicants said the following, in the verbatim record at page
153, supra:
"It is quite clear that events at the United Nations during the
autumn of 1946, that is to say, severa! months after the dissolution
of the League of Nations, indicate the general understanding of the
United Nations Organization and of the Respondent, that the man- ARGUMENT OF MR. DE VILLIERS 435
dates had not lapsed and were subject to the supervisory authority
of the United Nations."
Mr. President, this period during the autumn of 1946, referred to by
the Applicants in this passage which I have read, may perhaps be called
the crucial period in issue between the Parties in this case in regard to
the question now under dissussion-the question concerning Article 6, or
international accountability-because, Mr. President, the Applicants ad
mit that as from September 1947 there were explicitly clear statements
on behalf of the South African Government at the United Nations; in
other words, during the time of what 1 have termed "the Smuts Govern
ment", there were these explicit statements which rejected any idea of
United Nations supervision in respect of South West Africa. They are on
record; the Court knows what they are. But the Applicants suggest that,
somehow, these statements are to be seen as involving a change of ground
on the part of the South African Government. They are to be seen as
inconsistent with a prior commitment on the part of the South African
Government on this question.
Mr. President, 1 shall show, with respect, that this contention rests
purely on a fallacy. The scrutiny of the events, and 1 submit that it has,
for purposes of this conflict between the Parties, to be a very close scru
tiny, will show, in my submission, that there is no substance in this
suggestion on the part of the Applicants at all. But it does make it neces
sary, as 1 have said, to look very closely at the record of the period April
1946 to September I947·
I shall refer, fust, to the Applicants' contentions in that regard, and,
in answering them, 1 shall endeavour to make clear what the attitude of
the Respondent is in regard to this period. The Applicants refer, first,
to a memorandum prepared by the Secretariat of the United Nations
that is United Nations document A/II7 of 16 October 1946. In that
document reference was made to a letter addressed by the Secretary
General on 29 June 1946 to "the States administering territories now
held under mandate", those being the words used in the letter. Those
States, of course, includedthe Union of South Africa, and the Applicants
also drew attention to the following expressions in the letter, namely
"States administering trust territories now held under mandate" and,
also, "the mandatory powers". These are quotations from the verbatim
record at page 153, supra.
Now, :\Ir. President, the Applicants also say that according to that
memorandum the Secretary-General received from the mandatory pow
ers replies which indicated that four of the mandatory powers under
stood that their mandates were still in existence, notwithstanding the
dissolution of the League. He contended that they had indicated that,
by the use of such expressions as "the mandated territory of NewGuinea",
"the mandated terri tories of Togoland and the Cameroons", "the terri
tories in Africa under United Kingdom mandate", "the Mandated Terri
torv of South West Africa". This we find in that same verbatim record
at pages 153 to 154, supra. Now, Mr. President, this statement by the
Applicantsmaybecorrect,as far as it goes. ltisalso correct, as the Appli
cants say, that Belgium gave no indication of her view asto whether it
considered the terri tory of Ruanda- Urundi still to be under mandate,
and that New Zealand, in its reply, referred to Western Samoa as "the
former mandated territory". This indication by New Zealand is the op
posite of the view expressed by Australia, the United Kingdom, France SOUTH WEST AFRICA
and South Africa. Those features are there in the report. That is certainly
so. But, Mr. President, whatever the views of the said powers and of the
Secretary-General of the United Nations may have been at the time as
to the continued existence of the mandates-views which from the very
memorandum itself appear not to have been unanimous-there is nothing
in the memorandum which suggests that either the Secretary-General or
any of the States in question held the view that the United Nations had
replaced the League as supervisory authority or organ under the man
dates. There is nothing on that point in the memorandum. Indeed, Mr.
President, as we shaH indicate later in our argument, ali of those States,
with the sole exception of Belgium, expressed, in the proceedings of the
United Nations, contrary views in the years 1947 and 1948, making it
clear that, in their view, there was no supervisory power on the part of
the United Nations in respect of mandates not converted into trusteeship.
So, Mr. President, that memorandum and the covering letter and the
replies thereto do not assist the Applicants one jot towards establishing
that there was submission to United Nations supervision.
Next, Mr. President, Applicants deal with the Respondent's sub
mission to the United Nations in 1946 of its proposai regarding the in
corporation of South West Africa.
The Applicants refer, in this regard, to the statement made by the
Respondent's representative to the Fourth Committee of the General
Assembly on 22 January 1946 when he stated, amongst other things,
that, when the freely expressed will of both the European and Native
populations of South West Africa had been ascertained, the decision of
the Union "would be submitted to the General Assembly for judgment".
(P. I54. supra, and Counter-Memorial, n, p. 42 for a fuller text of this
particular statement.)
Mr. President, I was dealing with the Applicants' arguments concern
ing the submission by the Respondent to the United Nations in 1946 of
its proposai regarding incorporation of South West Africain the tcrritûry
of the Union. The Applicants say that the meaning of the words "for
judgment" was elucidated by the Respondent's Prime Minister in a
statement to the Fourth Committee on 4 November 1946, when he, that
is, General Smuts, said:
"... international responsibility precluded it from taking ad\•antage
of the war situation by effecting a change in the status of South
West Africa without proper consultation either of ail the peoples of
the Territory itself, or with the competent international organs".
(P. 154, supra.)
In addition, Mr. President, Applicants quote from a memorandum sub
mitted to the United Nations by Respondent with regard to this proposed
incorporation, and a covering letter dated 17 October 1946. The reference
is to the verbatim record, pages rss to rs6. supra, and that letter was
United Nations document Ajr23.
Now the Applicants make a point of the fact that the letter itself twice
referred to South West Africa as the "mandated terri tory", and they
say that the memorandum was based on the assumption that the Man
date was still in force. On the same point they cite portions of the memo
randum in which expressions were used such as-" the termination of the
mandate", "the future status of the mandated terri tory", "the manda
tory", and so forth. That is still in the verbatim record, pages I55 to rs6. ARGUMENT OF MR. DE VILLIERS 437
They then quote, Mr. President, three short passages from statements
made in the Fourth Committee regarding Respondent's proposai for the
incorporation of South West Africa. The fust passage is from a statement
by Respondent's then Prime Minister, General Smuts, to the effect that
Respondent could not ignore the wishes of the people of South West
Africa who wanted incorporation, and "had no alternative but to bring
their wish beforethe General Assembly". That we fmd in the same ver
batim record, page 157, supra.
The other two statements which they quote, one by Mr. Dulles of the
United States and the other by Mr. Liu Chieh of China, will be dealt with
later by us.
And now cornes the Applicants' contention, or conclusion, based upon
these factorsto which I have referred~t ishstted by them in the
verbatim record at page rss. supra-
"Thus by the end of 1946 Respondent had not, at any time, in
dicated a view that the Mandate for South West Africa had lapsed,
or that the United Nations had no supervisory authority over the
Territory.
On'the contrary, Respondent had on severa! occasions indicated
its understanding that the Mandate was still in force and effect and
that the United Nations had supervisory authority."
Mr. President, of course one part of this conclusion is correct, as I have
intimated before. The Respondent's Government at the time was, as
appeared from its conduct and the expressions it used, apparently of
the opinion that as a matter of law the Mandate had not come to an
end with the dissolution of the League. But apart from that, all these con
clusions stated by the Applicants in this passage, -which 1 have read
to the Court, are unfounded, particularly two, on which the whole
passage turns-the fust one being that by the end of 1946 Respondent
had not, at any time, indicated a view that the United Nations had no
supervisory authority over the Territory; and the second, the state
ment that Respondent had on several occasions indicated its understand
ing that the United Nations had supervisory authority. Neither of those
statements is supported by the facts relied upon by the Applicants, or
by any facts on record, or by any relevant evidence that we could find.
There was no such occasion at any time on which Respondent had
indicated its understanding that the United Nations had supervisory au
thority. And the suggestion that the first indication to the contrary was
given by Respondent after the end of 1946 and not before, is also factu
ally incorrect.In this respect, Mr. President, there is one item in the
record of events which is very significant and which was omitted by my
learned friends, on behalf of the Applicants, in their review of this part
of the history. That is a fact dealt with in Respondent's Counter-Me
morial, II, at page 54.
The Applicants cite passages from statements made by General Smuts
in addressing the Fourth Committee in November rg46, with regard to
the incorporation proposa!. In the verbatim record at page 154, supra,
they refer to the statement of 4 November 1946, and at page 157 of the
same record they refer to an extract from a statement of r6 November
1946. But, Mr. President, in sodoing they omit to mention a very perti
nent statement made by General Smuts in a debate of 13 November rg46,
when he explained that it would not be possible for Respondent, and that SOUTH WEST AFRICA
Respondent was not obliged, to submit a trusteeship agreement for South
West Africa. And he went on to say that if the Assembly did not agree
toincorporation,aswas then being proposed by him, then Respondent-
"... could take no other course than to abide by the declaration it had
made to the last Assembly of the League of Nations to the effect
that it would continue to adrninister the territory as heretofore as
an integral part of the Union, and to do soin the spirit of the prin-
ciples laid dawn in the mandate". ·
The passage is set out in full in the Counter-Memorial, Il, at page 54·
It may be noted, Mr. President, that General Smuts used the expres
sion "in the spirit of the principles laid dawn in the mandate". lt has
that correspondence of phrase with what was stated by the United
Kingdom representative, regarding the principles of the Mandate, in the
statement at the final League session. And in regard to the spirit of the
principles laid down in the Mandate, that accords with an expression
whlch, the Court will recall, was used by the United Nations Special
Committee on Palestine.
General Smuts proceeded to add something which had not been con
tained in the statement to the last Assembly of the League, when he
said this:
"In particular the Union would, in accordance with Article 73,
paragraph. (e), of the Charter, transmit regularly to the Secretary
General ofthe United Nations 'for information purposes, subject to
such limitations as security and constitutional regulations might
require, statistical and other information of a technical nature re
lating to economie, social and educational conditions' in South
West Africa."
That is at page 54 of the Counter-Memorial (Il).
Mr. President, I demonstrated yesterday, and the Applicants have
conceded, that the submission of information in accordance with Article
73 (e) of the Charter does not amount to report and accountability as
contemplated in Article 6 of the Mandate, and that it does not involve
supervision as that term was understood in the mandates system.
1 demonstrated, l\tr. President, in relation to the Australian statement
at the last session of the League Assembly, that an attitude of being
obliged to send the limited information under Article 73 (e) is neces
sarily inconsistent with the view of being under the more extensive and
onerous obligation of reporting and accounting under the Mandate.
General Smuts' statement is, therefore, very significant in that on this
first occasion after the dissolution of the League on which any South
African representative ever said anything to any of the international
organs on the question of reporting, it was brought directly into line
with the provisions of Article 73 (e) of the Charter. He did not use the
ward reporting-he said that the Union would "in accordance with
Article 73 (e) ... transmit regularly to the Secretary-General ... for
information purposes" this limited information.
The statement of General Smuts was ambiguous in one respect,
Mr. President, when read in its full context, and that was in the use of
the phrase "in accordance with"-"in accordance with Article 73 (e) of
the Charter". That may have meant one of two things. It may have
meant that General Smuts was expressing a contemplation that there ARGUMENT OF MR. DE VILLIERS 439
was, in law, an obligation on the Union Government to act in accordance
with that Article in respect of South West Africa, as long as itremained
outside trusteeship. That is one possibility. The other possibility is that
he was merely indicating something which he would do voluntarily,
although not obliged thereto, and that the type of information which
he would give, would be of the same nature as, and of the same kind
as that referred to in Article 7(e). That is, as I say, the ambiguity in
herent in the use of this expression "in accordance with Article 7(e)".
This ambiguity was cleared up in later statements made in regard to
this attitude of the South African Government by its representatives
at the United Nations. It was then made clear that the latter of these
two alternatives was what was intended. But that is not my point for
the moment.
What is important for my present purposes is this, that the mere fact
that General Smuts indicated that there would be no reporting and
accounting beyond this limited extent to which he was referring here,
that in itself, Mr. President, indicated an attitude entirely inconsistent
with acceptance of an obligation of reporting and accountability, and
it intimated at the same time, in fact, that there would be no such
reporting and accounting under the Mandate, with the United Nations
as the supervisory organ.
This factor is of fundamental importance in assessing what Respon
dent's statements and actions during the time under review amounted
to and what significance is to be attached thereto. The statement there
fore, Mr. President, entirely refutesthe assertion by the Applicants that
by the end of 1946 Respondent had not at any time indicated a view that
the United Nations had no supervisory authority over the Territory.
The statement is also important because of the time at which it came.
It was the very first occasion after the dissolution of the League upon
which it was appropriate for the Respondent to say anyth.ing on the
subject at all-upon which it could be said to have become incumbent
upon the Respondent to say anything to international organs. It was
barely six months-it was a little more-after dissolution of the League
that the statement came. It came after the submission of the application
for incorporation of South West Africa---of the proposai in that regard
which had come under covering letter of 17 October, the Court will recall.
That was only about six months after the dissolution of the League, and
the statement to which I have referred came in the debates which fol
lowed upon the submission of that proposai to the United Nations. It
came in the very next month-in November 1946.
After the dissolution of the League, Mr. President, the Respondent's
fust concern in respect of South West Africa was to bring this application,
or this proposai, in regard to incorporation, before the General Assembly
as soon as possible and it did so. It did so at the very fust opportunity,
~ha being when the General Assembly met again in the fall of 1946, and
Itwas, as 1 say, in relation to this very proposai during the debate, when
the question arose in the Fourth Committee: "Now suppose the applica
tion for incorporationis not acceded to, what are you then going to do?"
And we get this reaction from General Smuts that there was no obligation
to submit a trusteeship agreement and that the intention of his govern
!llent was to proceed with the status quo-to administer the Territory
m accordance with the principles ot the Mandate-in the spirt of those
principles-and, in addition, he added that there would be this reporting SOUTH WEST AFRICA
-this submission of information of a limited character-under Article
73 (e).
The later attitude, Mr. President, expressed in a letter of July 1947,
to which 1shall refer, and in the statements by the South African repre
sentative, Mr. Lawrence, to the United Nations in September and in
November of that year, was entirely consistent with the attitude taken
up by General Smuts.
Mr. President, this consistency of the attitude of the Respondent
appears more clearly, when we have regard to these various facts men
tioned by the Applicants in support of their statement to the contrary
their statement that Respondent had on severa! occasions indicated its
understanding that the United Nations had supervisory authority. When
those statements are anaJysed it will be found in each instance, Mr.
President, that they have no bearing whatsoever on this question of
supervisory authority at aiL
The Applicants appear to argue that inasmuch as the Respondent
had placed its proposai regarding the incorporation of South West
Africa before the General Assembly for judgment the Respondent had,
therefore, thereby recognized that the United Nations had supervisory
powers over the Mandate. That appears to be their argument. Now this
contention, in our submission, is entirely unfounded for the reasons
which I gave this morning asto the distinction between the two concepts
-the concept of submitting to supervision by an international organi
zation, and the concept of approaching that organization with a view to
agreement about the future status of a territory. The object of Respon
dent's proposai for incorporation to the General Assembly was very clear
in the context. lt was to obtain agreement between the Respondent and
the United Nations to a change in the status of South West Africa.
The Court will recall that it was contemplated in the last resolution
of the League Assembly that "other arrangements may be agreed" upon
between the United Nations and mandatories as to the future of man
dated territories. That very contemplation, coming as it did from a
unanimous decision of the Assembly of the League, indicated a view that
such a course would have effective results in practice; that if and when
there should be agreement between the mandatories and the United
Nations on points of that nature in regard to the future status of man
dated territories, then that would be a result that would from a practical
point of view be effective, inthat it would be recognized by other mem
bers of the international community.
And therefore, Mr. President, it was quite natural to regard the United
Nations as one of the competent international organs for that purpose.
1 might point out that when General Smuts spoke of the "competent
international organs", he was speaking in general-he was speaking of
what the contemplation had been in wartime, before the creation of the
United Nations Organization and while the League was still the com
petent international organ; but he spoke in general because he was
really speaking ex post factof what the contemplation had been before,
namely that there could, for purposes of bringing about a change of
status of this nature, be a change in competent international organs, and
there had, in his yiew, occurred such a change, there being a competent
organ, that is, competent in the sense that when agreement was reached
with that organ, an effective new arrangement would come into effect
effective in the sense that it would be recognized by other members of the ARGUMENT OF MR. DE VILLIERS 441
international community. And I have pointed out that this was the very
way in which the matter was put by the Respondent's statement to the
League on the subject in April of 1946.
And Mr. President, the very fact that the Respondent, through
General Smuts, in the debates on this same tapie, indicated that it
recognized no supervisory authority on the part of the United Nations,
that it would merely submit information in accordance with Article 73 (e)
-that in itself refutes the suggestion that Respondent saw, or was under
stood as s~ein igs,submission of the incorporation proposai as a sut
mission to United Nations supervision. Surely the evidence on a subject
of that nature is to be viewed as a whole, and not in its pieces the whole
here being that there is a submission of the incorporation proposai, and
in the debates on it the South African representative, the Prime Minister,
intimates clearly that there is no submission to United Nations super
visory authority. That part of the evidence surely cannat be ignored,
and the other part relied upon as if that carried any intimation of an
acceptance of the United Nations as a competent authority from a super
visory point of view.
But the Applicants, Mr. President, by a process of what one might
cali telescopic reasoning, seek to apply a passage in the rg5o Advisory
Opinion in such a way as to find support for their contention-in such
a way as if something in support of their contention bad been stated in
the rgso Opinion. I shall have to refer the Court to the relevant passages,
both in the Opinion and in this argument of the Applicants, to trace how
this particular point was made by them and to analyze its value or lack
thereof. ·
The Court will recall that there occurs in the 1950 Opinion at page 142
the following passage:
"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 Government
recognized the competence of the General Assembly in the matter."
Now, Mr. President, that ''matter" with which the Court was dealing in
this passage was the matter of modification of the status of South West
Africa. That was the "matter" dealt with by the Court as an entirely
separate question, put to it with a view to its advisory opinion-an
entirely separate question from that of continued supervision under
Article 6 of the Mandate. The question of the modification of the status
of the Territory was dealt with in the Opinion at pages 141 to I43· Itis
dealt with under a heading of its own, namely Question (c), as had been
put by the United_Nations to the Court. Question (c) read:
"Has the Union of South Africa the competence to modify the
international status of the Territory of South-West Africa, or, in
the event of a negative reply, where does competence rest to deter
mine and modify the international status of the Territory?"
and it is in the course of discussion of that question that the passage
occurs which I have read.
The other question, namely whether the Union of South Africa was
obliged to submit to supervision by.the United Nations after the dissolu
tion of the League, is discussed in a much earlier portion of the Opinion,
at pages 136 to 138, and in between came the discussion of certain other442 SOUTH WEST AFRICA
questions, particularly the question whether there was an obligation to
submit to a trusteeship agreement.
So, Mr. President, the words in the passage "competence of the
General Assembly in the matter" therefore had to do only with modifica
tion of status and nothing with the question of supervisory organs.
lmmediately after this passage the Court proceeded, in this later part
of its Opinion dealing with modification of status, to say the following-
1 read at the top of page 143:
"The General Assembly, on the other hand, affirmed its compe
tence by Resolution 65 (1) of December 14th, 1946. It noted with
satisfactionthat the step taken by the Union showed the recognition
of the interest and concem of the United Nations in the matter"-
still, Mr. President, therefore, "in the matter"-this same matter of the
question of modification of the status of the Territory.
Now we find that the Applicants, by a peculiar process of piecemeal
reference, transplant these statements and findings of the Court onto
the question of supervisory powers-the question in respect of which
they were not intended to be stated by the Court at ali. At page 154, supra,
of the verbatim record the Applicants say this-that "The submission
of the question of the termination of the Mandate to the General Assem
bly is of particular significance". They then quote in this context the
passage from the 1950 Opinion at page 132, 1 have read, which indicated
that the Union, by submitting the matter to the judgment of the Assem
bly, recognized the competence of the Asseritbly in the matter. On the
very next page of the verbatim record this passage is again quoted, but
now we find it is quoted in a different context-it is quoted in the context
of a submission made regarding the lapse or existence of the Mandate
and of supervisory authority. 1 would like to read that to the Court-the
introductory reasoning which leads up to the quoting of this passage
again at this particular page. My learned friend, Mr. Moore, is speaking:
"Since, in the autumn of 1946, Respondent had not yet begun to
argue that the Mandate as a whole had lapsed, or that the United
Nations had no supervisory authority over its administration of
South West Africa, the only reasonable inference to be drawn is
that reached by this Court in 1950, which is: [and then follows the
quote again]
'By thus submitting the question ... the Union Govemment
recognized the competence ofthe General Assembly inthe matter'."
Later in that same record, Mr. President, at page 158 of the verbatim
record, the Applicants then refer to General Assembly resolution 65 {1),
which featured in this further passage which I have read to the Court
regarding the question of modification of status. And the Applicants
there say this:
"A final observation concerning this point is that the General
Assemb1y, by resolution 65 (1), ' ...affirmed itscompetence ... '
over the mandated territory of South West Africa."
These 1ast words, Mr. President-"over the mandated territory of South
West Africa"-are of course the Applicants' own words, but just prior
to those they had put in quotes the words "... affirmed its compe
tence ... ", being the words used by the Court in this different context
of competence regarding a possible modification of status. It will be ARGUMENT OF MR. DE VILLIERS 443
observed therefore that something said by the Court in the 1950 Opinion
regarding modification of status is gradually modified into "competence
over the mandated territory of South West Africa". But this, as the
Court will see, is only a half-way stage-the process goes further, and
the full circle is joined at page 159supra, of the verbatim record. Here
the Applican ts say this :
"Whereas by resolution 65 (I) of 14 December 1946 the General
Assembly 'affirmed its cqmpetence' (to use the phrase of this Court)
over the administration of South West Africa, 'this competence
was in fact exercised by the General Assembly in resolution 141 (II)
of November rst, 1947 .. .' " [and they say] "(see the 1950Opinion
at page 137).''
Now, Mr. President, if we then look at the Advisory Opinion at page 137,
it becomes clear immediately from the page reference that that falls in
the earlier part of the Opinion dealing with the question of supervisory
jurisdiction in respect of South West Africa. As I indicated to the Court
before, that part of the Opinion appears on pages 136 to 138, and that
is where we find this statement by the Court to the effect that by resolu
tion qr (II) of r November 1947 the General Assembly had exercised a
competence-a competence relating, in that context of the Court's
reasoning, to the question of supervisory powers.
And so, Mr. President, statements from the portion of the Opinion
dealing with the change of status have been transplanted into, and
linked with, the statement in the different portion dealing with super
vision, to produce what I submit to be an entirely distorted result,
which is now imputed to the Court as if it were the reasoning of the Court.
In fact, the statement of the Court regarding competence exercised by
resolution 141 (2) had no connection with the nature of the competence
which the Court later, and in an entirely different part of its Opinion,
found to have been affirmed by the General Assembly through its reso
lution 65 (I) of 14 December 1946.
The Applicants have used this deviee of interposing their own words
-the words being "over the administration of South West Africa"
between the two unrelated phrases taken from the Court's Opinion;
and they thereby create the misleading impression that the Court in its
1950 Opinion expressed the view that the General Assembly, by its reso
lution 65 (I), regarding the incorporation proposai, affirmed competence
over the administration of South West Africa, that is, in the sense that
the United Nations had supervisory authority. The Court never said that,
By this process-to which I could give a name, but I would rather desist
from doing so-something is imputed to the Court which is the Appli:
cants' contention, but which was certainly never said by the Court. The
Court could not have expressed any such opinion, because it was clear
that resolution 65 (1) had nothing to do with supervision of mandated
administration. The resolution merely stated that the General Assembly
was unable to accede to the proposai for incorporation, and that it recom
mended that South West Africa should be placed under the trusteeship
system. There was nothing in that resolution to indicate that the General
Assembly was regarding itself as possessing supervisory jurisdiction in
respect of South West Africa.
Apart from this process relating to the Court's reasoning in 1950,
Mr. President, the Applicants in our submission in fact advance no444 SOUTH WEST AFRICA
argument regarding Respondent's proposai for incorporation, in support
of their contention that Respondent had indicated its understanding
that the United Nations had supervisory authority. Those words, in the
Applicants' contention, we find in the verbatim record at page r58, supra.
There is nothing which they advance in support of that contention that
would indicate an understanding of that kind. The only argument we
find is this process of reasoning with reference to the Court. They do,
however, Mr. President, seek to make the point that the debates in the
Fourth Committee of the General Assembly in the autumn of 1946
"indicate clearly that the general understanding of the Members of the
United Nations and of the Government of the Union of South Africa
was that the Mandate was still in force and that the United Nations
had general supervisory authority over Respondent's administration of
the terri tory". That is in the verbatim record at page 157, supra; and
in support of this statement they quote three short extracts from
speeches made in the Fourth Committee during November 1946.
The fust extract is from the speech of General Smuts, to which 1 have
already referred.That isthe extract in which he referred to the fact that the
people of South West Africa wanted incorporation, that the Union
Government could not ignore that wish and in which the words relied
upon by the Applicants appear, viz. that the Govemment "had no alter
native but to bring their wish before the General Assembly".
The other two extracts were from speeches made by Mr. Dulles of the
United States of America and I\fr. Liu Chieh of China. We find the
references in the verbatim record at page 157, supra.
Now, Mr. President, in neither of these two speeches, nor in the address
of General Smuts, was any view indicated regarding supervisory author
ityorsupervisory functions. Mr. Dulles merely stated that "the informa
tion at the disposai of the General Assembly did not enable it to approve
the incorporation of the mandated territory of South West Africa". How
that could be said to have any bearing on the question whether there was
a conception that the General Assembly as at that time was possessed of
supervisory jurisdiction in respect of South West Africa, I simply do not
understand.
Mr. Liu Chieh of China expressed the view that "South West Africa
should be placed under the Trusteeship System rather than continued as
a Mandate". How that could have any bearing on the question of super
visory jurisdiction,1 do not know.
General Smuts, in using the expression that the Union Government
had no alternative but to bring their wish before the General Assembly,
was speaking in the context of what the wishes of the people-inhabi
tants-{lf South West Africa were. He was indicating that there were
these strong wishes on their part, and he, as representing the mandatory
government, therefore could not sit still about the matter; something had
to be cloneaboutit. In that sense he bad no alternative but to take steps
for incorporation that would be internationally recognized, and therefore
to adopt the course which he was adopting in bringing the matter before
the General Assembly. Surely in the context nothing more emanates
from that statement thau this general purport, and how that can be said
to have any bearing on a question of supervisory jurisdiction is again
something which 1 do not understand.
Not one of these speeches, therefore, Mr. President, in any way
supports the Applicants' contention of a general understanding that the ARGUME~T OF MR. DE VILLIERS 445
United Nations had general supervisory authority over Respondent's
administration of the territory. We shaH later show that in fact the
general understanding among Members of the United Nations was
indeed the very opposite, but 1 am stiJl concentrating for the time being
on the acts and statements of the Respondent in this particular context
in order to see whether they afford any basis whatsoever for these
arguments on the part of the Applicants.
Now, in the context of this argument of the Applicants regarding the
significance to be attached to this referring of the incorporation proposai
to the United Nations judgment in 1946, the Applicants advert to
something which they call "The near identity of Respondent's actions
with regard to proposais for incorporation, taken in 1935 under the
League ... " That is the end of the quote from the verbatim record at
page I55. supra.
This may be a convenient place, therefore, to deal with this matter of
what happened in 1935, in order to indicate how completely the Appli
cants can take events out of their context; put a distorted significance
upon them, and then use that distorted significance as a basis upon
which to build an argument.
My learned friend, Mr. Moore, on behalf of the Applicants, stated as
follows in the verbatim record at page 139, supra:
"In 1935 Respondent put before the Permanent Mandates Commis
sion a proposai for the incorporation of South West Africa as a
fifth province of the Union, but when met with a critical attitude
by most of the members of the Commission, decided not togo ahead
with its plan for incorporation."
1 stress these clear words, Mr. President: the Respondent put before the
Permanent Commission a proposai for incorporation, but when met with
a criticalattitude Respondent decided not togo ahead with its plan for
incorporation.
In the verbatim record we find no authority quoted for this proposition
stated by my learned friend, Mr. Moore, and no authority was subse
quently furnished by the Applicants to us. Later on the same day,
Mr. President, my learned friend, Mr. Moore, referred to a statement by
the South African representative to the Permanent Mandates Commission.
Quoting l\Ir. Moore's words, the statement was made "in response to a
critical reaction from the Commission on the proposed incorporation of
South West Africa as a fi.fth province of the Union". That is in the
verbatim record at page 155, supra.
Then this statement made by Respondent's representative himself is
quoted from the Counter-Memorial, IV, page 8o. I need not read that
statement now because it is not relevant. My point concerns Mr. Moore's
phrase, "the proposed incorporation of South West Africa".
Mr. President, when regard is had to the facts set out in the pleadings,
with full reference to the relevant authorities, it immediately becomes
clear that there is no justification for using this language at ail-of
talking of any proposai for incorporation on the part of the South African
Government at the time, of talking of any plan for incorporation at the
time-of talking of any proposed incorporation of South West Africa as a
fifth province of the Union as at that time.
I now give the Court brief references to what the pleadings contain on
this point. In the Memorials, the Applicants stated that "the Union gave446 SOUTH WEST AFRICA
indications at an early date of its intention to incorporate the territory
of South West Africa as a fifth province". That is in the Memorials1,page
39· The Applicants then referred to a debate during the sixth session of
the Permanent Mandates Commission, and the Memorials continued:
"Thereafter, the proposai frequently drew the Commission's attention
and, in 1934, the Legislative Assembly of South West Africa adopted a
resolution contemplating the incorporation of the Territory." That is
still in the Memorials, at page 39-
Then followed, Mr. President, in the Memorials, a brief discussion of
the events in the Permanent Mandates Commission, of the appointment
of the Van Zyl Commission by the Respondent Government, of the
findings of the Van Zyl Commission, of the reaction of the Union Govern
ment thereto, and ofthe attitude of the Permanent Mandates Commission.
Ali this we find in the Memorials, 1,at pages 39-40.
We found it necessary to deal in our Counter-Memorial with these
facts, because of the impression created by the Applicants' exposition
that there was a proposai or plan for incorporation at the time 01 ~he
part of the UtJion Government. The references to our dealing with the
matter are to be found in the Counter-Memorial, II, pages 29-31, and
IV, pages 78-Sr. And what we stated in regard to this 1935 episode was
as follows. Firstly, we pointed out that during 1934 the Legislative
Assembly of South West Africa, as a reaction to certain Nazi activities
in the territory, adopted a resolution which urged, inter alia,that South
West Africa "be administered as a fifth province of the Union, subject to
the provisions of the ... Mandate". Those were the words forming the
gist of the resolution adopted in South West Africa by its Legislative
Assembly. We give that in the Counter-Memorial, IV, page 79·
We pointed out next that during 1934 the Permanent Mandates Com
mission discussed this resolution, merely because it had come to their
attention, and not because any proposai in that regard had been put
before it by the Respondent Government. We pointed out that although
opinions between individual members of the Commission differed, the
majoritY. who spoke tended to regard such an arrangement as being in
compatible with the Mandate. As 1 say, individual members differed on
that point, but the majority who took part in that discussion appeared
to think that such an arrangement would be incompatible with the Man
date.
That we give at the same page, but we also pointed out that the Com-
mission's resolution was merely to this effect. It was-
"... to [reserve] its opinion asto the compatibility of the course pro
posed by the Legislative Assembly with the mandate system until
it had been informed in due course of the point of view adopted by
the mandatory Government in this connection and been acquainted
with all the factors of the problem". (IV, p. 8o.)
Again, this is an indication of the fact that the Union Government did
not indicate what its point of view was and, whether it intended doing
anything about the matter. The discussion merely emanated from the
fact of the passing of this resolution by the Legislative Assembly of South
\Vest Africa.
We pointed out next that, in 1935, the South African representative
told the Permanent Mandates Commission that the Constitution Com
mission had been appointed-that was the Van Zyl Commission-that ARGUME:iT OF MR. DE VILLIERS 447
the purpose of that appointment was, inter alia, to considcr the future
constitution of South West Africa, and that South Africa, and 1 quote
from his words, "would never take any action in this respect until it had
first conununicated its intentions to the Mandates Commission itself".
The Permanent Mandates Commission welcomed this statement, which
we find in the Counter-Memorial, Il, p. 30, and IV, p. So.
The Constitution Commission, or Van Zyl Commission, then expressed
the view that there was no legal objection to the administration of South
West Africa as a fifth province of the Union subject to the terms of the
Mandate. The Union Government endorsed this legal opinion but, Mr.
President, it nevertheless, notified the Permanent Mandates Commission
that it felt "that sufficient grounds have not been adduced for taking
such a step". That we give in the Counter-Memorial, IV, p. Sr.
Ail we have at this stage is a legal opinion to the effect that it would
be competent, and not inconsistent w:ith the Mandate, to administer
South West Africa as a fifth province of the Union. Nevertheless, the
Union Government did not intend to take any active steps in that regard
because it found that, from a practical point of view, sufficient grounds
had not been adduced for taking such a step.
When this was communicated to the Permanent Mandates Commission,
the Commission expressed no view on-
"... a method of administration the scope of which it has bad no
opportunity of judging and the adoption of which, according to the
statement of the manda tory Power, is not contemplated". (Il, p. 31.)
Consequently, the Permanent Mandates Commission confined itself "to
making alli egal reservations on the questions". (Ibid.)
So that exposition is crystal-clear. There was no suggestion of any pro
posai by the South African Government, and no suggestion of any plan
for incorporation. In so far as there was any discussion in this regard, it
emanated from a resolution of the South West Africa Legislative Assem
bly on the question of possible administration, under the Mandate, of
South West Africa as a fifth province of the Union. Views were expressed
by the Constitution Commission asto the legality, or otherwise, of a pro
posai of that kind, but there was no proposai whatsoever even to put
that into effect, let alone to have any incorporation of South West Africa
into the Union.
Now, Mr. President, we find that after we had given this exposition,
there was no challenge of it in the Applicants' Reply at ali. Indeed, at
page 252 of the Reply, IV, there is a reference to a statement made dur
ing the 26th session as a reaction to what is correctly stated there to have
been "a resolution of the Legislative Assembly of South West Africa ...
advocating the incorporation of South West Africa as a fifth province of
South Africa 'subject to the provisions of the said Mandate' ".
So, there is no contesting of our survey at all, and yet Applicants now
come fonvard with what I have read out to the Court in this regard from
their oral statement. In particular, Mr. President, no "proposai" as al
leged was "put before the Permanent l\Iandates Commission"; secondly,
the actual proposai, the resolution of the Legislative Assembly, did not
involve the incorporation of South West Africa, but merely a particular
method of administering it under the Mandate, and, thirdly, it follows
that the Respondent did not decide, in the Applicants' words, "not togo
ahead with its plan for incorporation". SOUTH WEST AFRICA
It is, with the greatest respect, difficult to understand how Appli
cants can make such completely inaccurate allegations at this stage, after
the full discussion of the incident in the pleadings, in which our version
was apparently accepted and not challenged by the Applicants in their
Reply, and without putting any fresh authority before the Court for the
version which is now given to it.
It need hardly be said, Mr. President, that on this true view of the
events of 1935 they in no way lend support to the contentions now ad
vanced by the Applicants regarding the significance and effect of Re
spondent's submission in 1946 to the United Nations of its proposais re
garding incorporation of South West Africa.
The Applicants say that the Respondent's statement in 1935 to the
Pennanent Mandates Commission, namely that it "would never take ac
tion in this respect [that is, to administer South West Africa as a fifth
province] until it had first communicated its intentions to the Permanent
Mandates Commission itself" (IV, p. So) and those are the Applicants'
words-was a recognition on Respondent's part of the Permanent Man
dates Commission as "the competent international organ". (P. 155,supra.)
They argue from there that submission of a similar proposai to the Gen
eral Assembly of the United Nations in 1946, must be construed as being
a recognition, on Respondent's part, of the General Assembly of the
United Nations as the competent international organ.
Mr. President, surely the analogy is completely false, and there is no
substance in this comparison at ali, quite apart from the fact that there
was, indeed, no proposai regarding incorporation whatsoever in 1935.
The Permanent Mandates Commission, it will be recalled, had, in the
first place, itself no authority to take decisions regarding mandates; it
could not impose its will upon any manda tory; it was an advisory body
advising the Council of the League, which was the supervisory body.
For that reason alone, the analogy fails. But it fails, Mr. President, for
a much more serious reason, and that is that in 1935, there was no ques
tion involved of a change of status. The debates which arase in the Per
manent Mandates Commission really concemed the question of whether
such administration of South West Africa, as a fifth province of the
Union, was compatible with the present status of the territory as a man
dated territory. It was a legal question, therefore, namely whether, if
there was to be such administration, that could occur within the frame
work of the existing status of South West Africa as a mandated territory,
or whether legally a change of status would be involved. That was the
subject of debate in the Permanent Mandates Commission. But the mat
ter never came to any proposai or to anv consideration being given to
the possibility of a change of status, for the very reason that the Union
Govemment never made a practical proposai to the effect that it was
going to administer the territory as a fifth province of the Union.
The Union Government treated that question, which was purely one
of desirability, as aatter of policy. It decided at that stage that there
was no such desirability. Therefore, at that particular time the matter
was purely one relating to discretion on the part of the mandatory and,
in so far as it may be relevant, of supervision in respect thereof on the
part of the supervisory organs of the League. This was, therefore, purely
and simply a question, to the extent to which it bad developed at that
particular stage, which could only involve a matter of supervision and not
a question of a change of status. It had never come to a situation where ARGUMENT OF MR. DE VILLIERS 449
there was·acceptance on all sides that something could only be clone by
effecting a change of status, so that there was a proposai to be considered
. for a change of status.
There is, therefore, Mr. President, no analogy whatsoever between the
two events, and nothingwhich can help the Applicants in their contention
that, by bringing before the United Nations General Assembly in 1946
the question of a possible change of status of South West Africa, any
thing was being suggested or conveyed by the Union Govemment re
garding a question of supervision.
Next, Mr. President, we consider the question of Respondent's conduct
after its proposai for incorporation was rejected by the General Assembly.
The Applicants introduced this part of their argument with the follow
ing statement:
"Although Respondent in September 1947 indicated for the first
time a view that the United Nations had no supervisory authority
over South West Africa, statements made by Respondent up to
that time, during the year 1947, indicated precisely the opposite
view." (P. 158, supra.)
Mr. President, in support of this statement the Applicants cite passages
from two communications addressed by Respondent to the Secretary
General of the United Nations in the year 1947.
The first communication was a letter dated 23 July 1947 in which Re
spondent replied to the General Assembly's invitation in resolution 65
(I) of 14 December 1947 to propose a trusteeship agreement for South
West Africa.
The Court will recall that there was that resolution 65 (I) in response
to the incorporation proposai, inviting South Africa to submit a proposed
trusteeship agreement for South West Africa, and this letter was written
in response to that invitation.
Respondent in its letter stated that it could not ignore the wishes of
the inhabitants of South West Africa who wanted incorporation, and
Respondent said:
"In the circumstances, the Union Government has no alternative
but to maintain the status quo and to continue to administer the
Territory in the spirit of the existing Mandate." (P. 159, supra.)
Another passage in the letter, which was quoted for their purposes by
·the Applicants at the next page of the verbatim record, read as follows:
''It will, however, be recalled that the interests of the native in
habitants were fully provided for with specifie safeguards under the
Mandate and that the administration of South West Africa and the
implementation of those safeguards have been uniformly satisfac
tory ever since the inception of the mandatory system. They feel
confident, therefore,that their continued administration of the Terri
tory in the spirit of the Mandate will equally merit the satisfaction
of the United Nations.
To that end the Union Government have already undertaken to
submit reports on their administration for the information of the
United Nations."
It is on the basis of these quotations, Mr. President, that the Applicants
advance the contention that Respondent evidenced a recognition of the
supervisory ·authority of the United Nations. In Respondent's submis-450 SOUTH WEST AFRICA .
sion, the passages do not bear out that contention whatsoever. The im
portant fact of this·letter-thecrucially important fact-is that when it
speaks of reports-"the Union Govemment have already undertaken to
submit reports on their administration for the information of the United
Nations"-the reference is to the speech by General Smuts in November
of the previous year where he made it clear that those reports would
be fumished in accordance with Article 73 (e) of the Charter. That was,
in fact,the only previous occasion on which anything at aUhad been said
on the subject of submission of reports and that was, in fàct, the occasion
which is identifiedby thislanguage~ tndertaking "to submit reports
on their administration for the information of the United Nations".
As 1 explained earlier, Mr. President, there could, in terms of this ex
planation of General Smuts, be no accounting and supervision as had
been the case during the time of the League of Nations, but merely sub
mission of certain information for a limited purpose, and this is preâsely
_and all that was confirmed by the Ietter of 23 July 1947. The letter,
therefore, doesnot in the ]east support this contention of theApplicants
regarding recognition of the supervisory authority of the United Nations.
ln fact, Mr. President, it is interesting to note, as we go along, the
·links between these various relevant and crucial statements on behalf
of the Respondent-first, the statement at the final session of the League,
of an intention to continue with the present administration for the bene
fit of the inhabitants, in accordance with the obligations of the mandate,
then, a reference by General Smuts in November 1946, back to what had
been stated on that occasion, and statement that there would be a main
tenance of the status quo and that he intended also to send reports in
accordance with Article 73 (e), and, finally, this letter of 23 July refer
ring back again to the previous statement by General Smuts where he
had made it élear that his only reference to giving information to the
United Nations at ali was in accordance with Article 73 (e).
[Public hearing of 7 April I965]
Mr. President and honourable Members, 1was dealing at the conclusion
yesterday with the subject of Respondent's conduct after its proposai
for incorporation was rejected by the General Assembly. 1 referred in
that regard to an argument advanced by the Applicants in the Oral Pro
ceedings to the effect that statements by ResP-ondent, up to September
1947, indicated precisely the opposite view. (Pp. 158-159. supra.) As I
pointed out, this statement of the Applicants sought to support this
argument by referfnce to two communications addressed by Respondent
to the Secretary-General of the United Nations in the year 1947.
The first one was the letter of 23 July 1947, with which 1 have dealt
the letter responding to the invitation of the Assembly in resolution 65
(1)to submit a trusteeship agreement for South West Africa. 1submitted
that this letter does not support the Applicants' contention regarding
recognition of the supervisory authority of the United Nations, but that,
on the contrary, the letter identified itself with the previous statement
by General Smuts in this regard, in which he had made ~t quite clear
that the information to be furnished would be of the limited nature in
accordance with Article 73 (e) of the Charter.
The second communication, Mr. President, relied upon by the Appli
cants in our submission, likewise does not support their contention. ARGUMENT OF MR. DE VILLIERS 451
That is the communication dated 22 September 1947, referred toby the
Applicants at page 159, supra, of the verbatim record. AUthat that letter
intimated was that the Legislative Assembly of South West Africa had
fully discussed General Assembly resolution 65 (1) of 14 December 1946
and had passed a resolution expressing appreciation of and thanks for
the firm stand·taken by General Smuts before the United Nations Or
ganization in connection with the proposed incorporation of South West
Africa. It added, Mr. President, that the Legislative Assembly- .
"trusts that the United Nations Organization will grant the wishes
of the large majority of the inhabitants of this Territory, European
as weil as non-European". (P. 159, supra.)
Now, Mr. President, this resolution 65 (I) of the United Nations dealt,
of course, only with the proposai in regard to incorporation. It made no
mention of supervision of the administration of South West Africa. The
discussion and contents of the resolution by the Legislative Assembly
and its expression of its appreciation of and thanks for the stand taken
by General Smuts can, therefore, have no bearing whatsoever on the
question of supervision. · ·
Perhaps the Applicants' contention is that the sting lies in the tail of
this resolution, where the Legislative Assembly said that it trusted that
the United Nations Organization would .grant the wishes of the large
majority of the inhabitants. But, Mr. President, even that, at the most,
contempla tes a competency on the part of the General Assembly to grant
such a request-a request relating to the future status of the Territory
in other words, again a matter which is totally unrelated to the subject
of a supervisory power on the part of the General Assembly.
We now come, Mr. President, to statements made on South Africa's
behalf, as from September 1947, which, on the Applicants' representation
of the situation, are to be seen as constituting a complete volte faceon the
part of the Respondent. It will be recalled, Mr. President, that the Appli
cants say that it was only in September 1947 that Respondent "indicated
for the first time a view that the United Nations had no supervisory
authority over South West Africa". (P. 158, supra.)
Later the Applicants put this point as follows: "It was not until the
autumn of 1947 that supervisory authority of the United Nations was
questioned." (P. r66, supra.)
Now, Mr. President, this first statement is factually incorrect, as I have
already demonstrated-the statement to the effect that it was in Septem
ber that Respondent first indicated a view that the United Nations had
no supervisory authority.
The second statement, namely that it was not until the autwnn of 1947
that this supervisory authority of the United Nations was questioned
is not only incorrect in the same respect, but gives an incorrect impression
of what actually happened when the statement to which the Applicants
refer, was made. The impression created, Mr. President, is that the
United Nations was already exercising, or was seeking to exercise, super
visory authority over the Territory of South West Africa and that South
Africa, after at first agreeing to, or acquiescing in, this situation, or re
maining silent aboutit, then turned round and questioned that authority.
Mr. President, in fact, nothing of that kind occurred. Up to September
1947 and, indeed, until 1948, as we shall show, there had been no ex
pression of view, either by Respondent, or by any other member of the452 SOUTH WEST AFRICA
United Nations, that the United Nations had supervisory authority in
respect of South West Africa-none whatsoever, either from Respon~
dent's side or from the side of any other l\fember of the United Nations.
In these circumstances, in our submission, there could have been no
questioning of authority in September 1947 and; in fact, the statement
which the Applicants have in mind did not take the form of a questioning
of authority at ail. I shaH give the Court the sequence of events and the
link between these events in a somewhat fuller form than we gàve them
in the pleadings, particularly in order to meet this argument-thipresen
tation ofthe_facts-on the part of the Applicants.
The matter began in this way: A question was asked by the represen
tative of Denmark at the thirty-first meeting of the Fourth Committee
of the General Assembly on 25 September 1947, and I wish to read in
that regard from the Summary Records, General Assembly, Official Rec
ords, Second Session, Fourth Committee, page 8.
"Mr. Lannung (Denmark), considered that there was no legal ob~
ligation on the Union of South Africa to submit a trusteeship agree
ment. He noted with appreciation statements by the Govemment of
the Union of South Africa that the Territory would be administered
in the spirit ofthe Mandate. He asked the representative of the
Union of South Africa to be good enough to explain certain passages
of document A/334, especially with regard to the status qùo and the
transmission of reports, to indicate if possible, what was in the mind
of his Govemment asto the procedure to be followed in examining
the information transmitted, and to state whether the Union of
·South Africa would agree to the submission of petitions." ,
May I point out, Mr. President; the context of this debate. It was con
cemed, inter alia, with document A/334 (Fourth Committee, Second
Session, p. 133); i.e., the letter of 23 July 1947 which we discuyester~
day-the very letter on which the Applicants rely as indicating, in their
words, "precisely the opposite view". (Pp. 158-159, supra.) The Court
will recall that that letter was the one to which 1 also referred when I
commenced this moming-the letter written in response to the·invitation
of the General -Assembly that a trusteeship agreement should be sub
mitted in respect of South West Africa. It was in that letter, after the
request had been declined for reasons given therein, that the stateinent
was made that the status quo would be maintained and that, with refe
rence to the question of reporting, the Union had already indicated its
willingness to submit reports for the information of the United Nations.
The fact that this document A/334 was this very same letter appears, Mr.
President, from this same volume of the Summary Records of the Fourth
Cornmittee, to which I have just refcrred, .at page 134- There the docu
ment is set forth as an annexure in that volume.
That was the subject of discussion. It was the fact that South Africa
was not acceding to the invitation of the General Assembly to submit a
trusteeship agreement and its intimation that it would maintain the
status quo but submit reports for the information of the United Nations.
That, then, was the subject-matter on which Mr. Lannung of Denmirk
askcd for furthcr clarification, remarking that, in his view, there was,
also, no legal obligation on the Union to submit a trusteeship agreement.
Mr. Lawrence, on behalf of the South African Government, replied
two meetings later, two days later, i.e., at the 33rd Meeting of the ARGUMENT OF MR. DE VILLIERS
453
Fourth Committee on 27 September 1947. There is, Mr. President, a
Summary Record of his reply in the same volume to which I have just
referred, at pages 15-16. The extract which we quote in our Counter
Memorial, ll, at page 57, is not an extract from this Summary Record.
It is a fuller report which we found in a report of the Fourth Committee
to the General Assembly. That report was an annexure in the Records
of the Plenary Sessions for that period, and we give the reference in our
footnote 1 at page 57 of the Counter-Memorial (U); the reference is U.N.
Doc. A(422, in G.A., O.R., SecondSess., Plenary Meetings, Vol. II, p. I537·
I should like for present purposes to refer the Court to both the Summary
Record and this more detailed version of what Mr. Lawrence said. From
the Summary Record at page 15 it appears clearly that the information
was supplied in reply to the request of the Danish representative at the
31st Meeting regarding clarification of Document A/334· Now, for the
fuller version of what Mr. Lawrence said, I should like to refer the Court
to the other source, which I have mentioned: the annexure in the Rec
ord of the Plenary Meetings. It starts at page 1537. and is a report of the
Fourth Committee to the General Assembly. 1 read at page 1538:
"At the thirty-third meeting of the Committee on 27 September
1947, in response to a request by the representative of Denmark for
amplification of the proposai to maintain the status quo in South
West Africa and to continue to administer the Territory in the spirit
of the Mandate, particularly with regard to the United Nations and
its organs, the representative of the Union of South Africa explained
that the annual report which his Government would submit on South
West Africa would contain the same type of information on the Terri
tory as is required for Non-Self-Governing Territories under Article
73 e of the Charter. It was the assumption of his Govemment, he
said, that the report would' not be considered by the Trusteeship
Council and would not be dealt with as if a trusteeship agreement
had in fact been concluded. He further explained that, since the
League of Nations had ceased to exist, the right to submit petitions
·would no longer be exercised, since that right presupposes a jurisdic
tion which would only exist where there is a right of control or super
vision, and in the view of the Union of South Africa no such juris
diction is vested in the United Nations with regard to South West
Africa."
Mr. President, there was, therefore, nothing of the nature of questioning
authority which was being asserted against the position of the Union of
South Africa. It was purely a statement made in response to a request
for clarification of a position whichhad already been stated in the earlier
letter of 23July (Document A/334), and every item in this statement was
in response to that request. ·
I may in that regard point out, also, that this statement resolved the
ambiguity to which I referred before, which was present in General Smuts'
statement of the previous year, in November 1946, when he .had said
that information would be submitted in accordance with Article 73 ( e).
The Court will recall that I pointed out that that did not make it clear
whether General Smuts accepted that there was an obligation in law to
deal with the situation in terms of Article 73 (e), or whether he merely
indicated that he would voluntarily, although not obliged to do so, act
in accordance with Article 73 (e)-i.e., submit information correspond- SOUTH WEST AFRICA
454
ing with that required under Article 73 (e). That ambiguity is cleared
up in this statement by Mr. Lawrence, in which he said that the informa
tion-the annual report-
"would contain the same type of information on the Territory as
is required for Non-Self-Governing Territories under Article 73 (e)
of the Charter". (II, p. 57.)
That point is, if anything, made even clearer by one statement in the
Swnmary Record. In the Record of the Fourth Committee deliberations
to which 1 referred before, at page 16, we read this sentence:
"The Union of South Africa did not daim that South West Africa
was a colony, but it was willing to submît annual reports like those
required for the Non-Self-Goveming Territories under Article
73 (e)." (G.A., O.R., 4th Committee, Second Session, at p. r6.)
In other words, he made it perfectly clear that there was no conception
that the case feil under Article 73 (e) as a matter of law, but that to
submit information of the kind as is provided for in Article 73 (e) would
be a voluntary action on the part of the Govemment of the Union of
South Africa.
So, Mr. President, there was no question here of United Nations super
visory authority being challenged or questioned in any way; this was
merely an amplification of an attitude which had previously been ex
pressed, and the way in which the explanation originated makes it per
fectly clear that there is no substance whatsoever in the Applicants'
suggestion of a change of front, or a change of ground, on the part of
the South African Govemment. This was an explanation given in Septem
ber 1947, sorne three months after the letter of 23 July-an explanation
given on the first occasion that one was asked for asto exactly what was
meant in that letter. It gave more details as to what the attitude con
veyed in the letter was intended to mean.
Later, during that same session of the United Nations in November
1947, Mr. Lawrence had occasion to revert to this point, and he stated
it in much the same way as before, but in slightly different words. In
the Counter-Memorial, Il, at page 57, we quote his statement in the
General Assembly, as follows:
"... the Union of South Africa has expressed its readiness to submit
annual reports for the information of the United Nations. That
undertaking stands. Although these reports, if accepted, will be
rendered on the basis that the United Nations has no supervisory
jurisdiction in respect of thisterritory they will serve to keep the
United Nations informed in much the same way as they will be kept
informed in relation to Non-Self-Governing Territories under Article
73 (e) of the Charter."
Again the position was made explicitly clear. I may just emphasize the
· wording of that first sentence: "the Union of South Africa has expressed
its readiness to submit annual reports for the information of the United
Nations." lt is striking that the language is really of the same importas
that contained in the letter of 23 July on that same point.
Upon analysis, therefore, Mr. President, it is in our submission clear
that whatever conclusions may be drawn from Respondent's conduct
over the years 1946-1947 as to its view regarding the continuation of the
Mandate, the record shows that, with regard to the question of super- ARGUMENT OF MR. DE VILLIERS
455
vision, the Applicants are entirely wrong when they say, as they said
in the verbatim record, at page r66, supra, that the relevant statements
and actions of Respondent over the period "support the conclusion that
... the United Nations replaced the League as the supervisory organ over
the Mandate". Indeed, Mr. President, in our.submission the only conclu
sion which can be drawn from Respondent's actions and statements
over that period points in the opposite direction and, as has been made
clear in Respondent's pleadings, Respondent's attitude in this regard has
been consistent throughout. We deal with this whole subject of later con
duct on the part of the Respondent in the Counter-Memorial, ll, pages
57-96, and there·is no dispute between the Parties, as far as I can see,
on the aspect of later conduct, except for a minor point with which I shall
deal later. The essence of the dispute in this regard seems to centre around
the period up to September 1947, Applican cotnt~tion being that there
was a change of attitude on Respondent's part in September 1947. For
the reasons I have just given I submit that that contention is entirely
without substance, that there is nothing whatsoever to support it.
Now, Mr. President, as to subsequent events, events subsequent to
September 1947, it is not necessary togo into detail-! can very briefty
refer to sorne of the salient features.
In September 1947 Respondent, in compliance with its earliervoluntary
undertaking, submitted to the United Nations a document containing
information regarding South West Africa. The information was of the
type and ofthe limited nature mentioned in Article 73 (e) of the Charter.
The document was referred to as a report, but it in no way resembled the
report which Respondent had made in the life-time of the League in
terms of Article 6 of the Mandate.
Indeed, Mr. President, when the report was exarnined by the Trustee
ship Council, mention was made in the debates of the fact that that re
port consisted of only 56 pages, whereas, so the debates revealed, Re
spondent's report to the League Council in 1939, in compliance with
Article 6 of the Mandate, had consisted of about 250 pages. We find that
reference in the record of the Trusteeship Council's second session, rsth
meeting, 12 December 1947, at page 483.
In addition, Mr. President, it was, as the Court is aware, customary
during the life-time of the League of every manda tory to have a represen
tative present at the deliberations of the Permanent Mandates Commis
sion, when the annual report for the particular mandated territory was
discussed.
Throughout the existence of the League, Respondent was always
represented at such discussions, and, in fact, Respondent was responsible
for introducing the practice of sending the Administrator of the Terri
tory himself to represent the Mandatory at such discussions. But, Mr.
President, when this information was submitted to the United Nations
in 1947 there was, in this regard also, a markedly different attitude on
the part of the Respondent; the Respondent declined to send a represen
tative to attend the discussion in the Trusteeship Council.
AU this was still in 1947, Mr. President. I mentioned yesterday the
difference of opinion which appears to have arisen between the successive
Governments-the Smuts Government, and the later Government of Dr.
Malan-on the legal question whether the Mandate was still in force.
I emphasized that on the question of the United Nations not having any
supervisory jurisdiction the attitude of the two Governments was exactly SOUTH WEST AFRICA
the same, and consistent. Ali these events took place in 1947, in the time
of the earlier Government.
The Trusteeship Council, Mr. President, at its second session in 1947.
decided as follows (1 read from the record of the Trusteeship Council's
second session, first part, sixth meeting, r December 1947. p. 132):
"The Secretariat would be requested to furnish the Government of the
Union of South Africa with the date of the examination of the report,
in accordance with a resolution of the General Assembly, and to say that
the Government's representative would be welcome, if it wished to send
one." A letter was duly sent to the Respondent on 2 December 1947. to
which the Respondent replied on 5 December 1947· (One finds the refe
rence in the same volume to which I have referred-a record of the tenth
meeting, 5 December 1947. p. 294.) The reply read, in the relevant part:
"1 am directed to thank you for your letter of 2nd instant notify
ing that the Report of South West Africa, which was submitted for
the information of the United Nations, is to be examined on Decem
ber 8th. My Govemment is appreciative of the final paragraph of the
letter, and, although it will not avail itself of the courtesy expressed
therein, desires me to say that if, after examination, any supplemen
tary particulars within the Chapters of the Report are desired, it
will be happy to transmit further available data in writing, for your
information." (Trusteeship Council, 2nd Session, 1st Part, roth Meet
ing, 5 December 1947. p. 294.)
· In the result, Mr. President, the report was discussed in the Trustee
shipCouncil without any representative of the Respondent Government
being present. After consideration of the report, the Trusteeship Council,
on 12 December 1947, passed a resolution which in its relevant parts
reads as follows:
"Having taken note of the communication of the Government of
the Union of South Africa dated 5 December 1947;
Resolves that the report in certain particulars appears to be incom
plete and that opportunity should therefore be taken of the offer of
the Government of the Union of South Africa to transmit, if desired,
further available data;
That the Government of the Union of South Africa be invited to
supply supplementary information before the month of June 1948
on the questions attached hereto in order that the Council may be
able to submit its observations to the General Assembly at its next
session." (Tru.steeship Council, 2nd Session, 1st Part, 15th Meeting,
12 December 1947, p. 509.)
The reference is to the same volume as before, the record of the fifteenth
meeting of the Trusteeship Council, 12 December 1947. page 509.
In response to this request, Mr. President, the Respondent submitted
further information under cover of a letter dated 31 May 1948. The rele
vant part of the letter is quoted in the Counter-Memorial, U, page 59,
and the letter is instructive because it contains an apt summary of the
development of the matter up to that point, and of the attitude of the
Government of the Union of South Africa in that regard. I read, Mr.
President, from the quotation at page 59 of the Çounter-Memorial (ll).
The Respondent there-
"re-iterate(d} that the transmission to the United Nations of in
formation on South West Africa, in the form of an annual report or ARGUMENT OF MR. DE VILLIERS . 457
any other form, is on a voluntary basis and is for purposes of infor
mation only. They have on severa! occasions made it clear that they
recognize no obligation to transmit this information to the United
Nations, but in view of the wide-spread interest in the administration
of the Territory, and in accordance with normal democratie practice,
they are willing and anxious to make available to the world such
facts and figures as are readily at their disposai ... The Union Gov
ernment desire to recall that in offering to submit a report on South
West Africa for the information of the United Nations, they did so
on the basis of the provisions of Article 73 (e) of the Charter. This
Article caUs for 'statistical and other information of a technical na
ture' and makes no reference to information on questions of policy.
In these circumstances the Union Government do not consider
that information on matters of policy, particularly future policy,
should be included in a report (or in any supplement to the report)
which is intended to be a factual and statistical account of the ad
ministration of the Territory over the period of a calendar year.
Nevertheless, the Union Government are anxious to be as helpful
and as co-operative as possible and have, therefore, on this occasion
replied in full to the questions dealing with varions aspects of policy.
The Union Government do not, however, regard this as creating a
precedent. Furthermore, the rendering of replies on policy should not
be construed as a commitment asto future policy or as implying any
measure of accountability to the United Nations on the part of the
Union Government. In this connexion the Union Government have
noted that their declared intention to administer the Territory in
the spirit of theandate has been construed in sorne quarters as im
plying a measure of international accountability. This construction
the Union Government cannot accept and they would again recall
that the League of Nations at its final session in April I946,explicitly
refrained from transferring its functions in respect of mandates to
the United Nations."
Mr. President, the attitude of the Respondent in this regard was
repeatedina statement to the Fourth Committee on 9 November 1948.
I wish toread only a brief extract from that statement. The Respondent's
representative said:
"the Union could not admit the right of the Trusteeship Council
to use the report for purposes for which it had not been intended:
stillless could the Trusteeship Council assume for itself the power
claimed in its resolution, i.e. 'to determine whether the Umon of
South Africa is adequately discharging its responsibilities under the
terms of the mandate ... ' Furthermore, that power was claimed
in respect of a territory which was not a trust territory and in re
spect of which no trusteeship agreement existed. The South African
delegation considered that in so doing the Council had exceeded
its powers." (Il, pp. 59-60.)
Mr. President, our Counter-Memorial also sets out the attitude adopt
ed by the Respondent in a letter dated II July 1949 to the Secretary
General. The relevant part of this letter is quoted at page 61 of the
Counter-Memorial (Il), and 1 wish to read just a brief portion of it,
because rouch of it is repetitive of what 1 have just read out of the
earlier communications: SOUTH WEST AFRICA
"The recommendation of the General Assembly that the Union
should continue to supply information on its administration of
South West Africa has been given most careful consideration.
It will be recalled, however, that the Union Govemment have at
no time recognized any legal obligations on their part to supp!y
information on South West Africa to the United Nations, but in a
spirit of goodwill, co-operation and helpfulness offered to provide
the United Nations with reports on the administration of South
West Africa, with the clear stipulation that this would be done on
a voluntary basis, for purposes of information only and on the
distinct understanding that the United Nations has no supervisory
jurisdiction in South West Africa."
I stopthere for the moment. This was the letter, Mr. President, which
proceeded to state the reasons why the Union Government bad come to
the conclusion that it would serve no good purpose to continue to submit
these reports.1do not have togo into ali these reasons; the Union Govern
ment pointed out that it hoped that the Trusteeship Council-
"would approach its task in an entirely objective manne.r and
examine the report in the same spirit of goodwill, co-operation and
helpfulness as bad motivated the Union in making the information
available. .
These hopes have not been realized. Instead the submission of
information has provided an opportunity to utilize the Trusteeship
Council and the Trusteeship Committee as a forum for unjustified
criticism and censure of the Union Government's administration not
only in South West Africa but in the Union as weil. Inferences and
deductions have been drawn from the information submitted which
are quite inconsistent with facts and realities. The misunderstand
ings and accusations to which the United Nations discussions of this
subject have given rise have had repercussions both in the Union
and in South West Africa, with deleterious effects on the maintenance
of the harmonious relations which have hitherto existed and are so
essen~ ti aulcessful administration. Furthermore, the very act of
submitting a report has created in the minds of a nwnber of Meru
bers of the United Nations an impression that the Trusteeship
Council is competent to make recommendations on matters of
internai administration of South West Africa and bas fostered other
misconceptions regarding the status of this Territory.
In these circwnstances the Union Government can no longer see
that any real benefit is to be derived from the submission of special
reports on South West Africa to the United Nations, and have
regretfully come to the conclusion that in the interests of efficient
administration no further reports should be forwarded.in coming
to this decision the Union Govemment are in no way motivated by
a desire to withhold from the world factual and other information
regarding South West Africa published in accordance with the cus
tomary practice of democratie nations, and information of this
nature previously embodied in annual reports to the League of
Nations or the United Nations will continue to be made available
to the general public in the form of statistics, departmental reports,
reports by the Administrator to the South West African Legislature,
blue books, and other governmental publications." (Il, pp. 6r-62.) ARGUMENT OF MR. DE VILLIERS 459
Mr. President, the later history makes it clear that this attitude on
the part of the Respondent was maintained throughout, and the Appli
cants, as I understand them, do not argue to the contrary.
In the result, I submit that the record clearly shows that, in so far as
Respondent's acts and statements are concemed, it at,no time consented
to or recognized United Nations supervision over the Mandate. On the
contrary, as from the time that the United Nations began operations,
Respondent indicated that there would be no accounting and no super
vision, and Respondent acted accordingly throughout.
It may, at this stage, Mr. President, be convenient to deal with a
further point which the Applicants made regarding conduct on the part
of Respondent. This is the one exception to which I referred before con
cerning conduct on Respondent's part after September 1947 to which
reference was made by the Applicants in their argument.
They said according to their verbatim record:
". . .n~twithstan despondgent's new assertion in 1948 that
the Mandate as a whole had lapsed, Respondent ind.icated severa!
times that it was still possessed rightsunder the Mandate Agree
ment for South West Africa". (P. 163, supra.)
For this proposition Applicants rely on three statements made during
1948 by Mr. Eric Louw, Respondent's representative, in the course of
debates in the General Assembly-Plenary and Fourth Committee.
Now, Mr. President, let me say at on~e before dealing with these
statements, that Respondènt does not, in its submission to this Court,
contend that if the Mandate has lapsed, Respondent would, neverthe
less, retain rights or powers under the, Mandàte. That is not our con
tention, but 1 pointed out yesterday that, in·terms of varions theories,
held by lawyers 'at varions times before this Court pronounced on the
subject in its Advisory Opinion of 1950, such a result would have been
a logical possibility.f the Mandate were to be viewed-as 1 indicated
yesterday it was apparently viewed in terms of certain theories-as in
volving a cession of territory subject to ·treaty obligations (the treaty
obligations being the obligations under the Mandate, the trust obligations
operating for the benefit of the inhabitants, and the additional obligations
of submitting to the League's supervision in that regard). one could have
the result that the t'reaty obligations could faU away, and that the ses
sion would then operate as vesting sovereignty absolutely in the manda
tory. That, we know, was a view which was propounded. It is in conflict
with the subsequent finding of the Court in that regard in the Opinion
of 1950. It is not a view which I am submitting to the Court as one which
ought to be accepted. 1am only painting out that, on the basis of viewing
the situation in that light, the result arrived at (namely that the powers
or the rights, which the Mandate conferred, could remain in existence
without the legal obligations which were contained in treaties, continu
ing to be bind.ing upon the Power to which the cession had been made)
would have been a perfectly logical one. And the attitude could then be
that the sacred trust, as provided for in treaty obligations-whitreaties
would have fallen away, accord.ing to that theory-would no longer have
legalforce, although the moral obligation to act in accordance with the
spirit of the Mandate, would still exist and still be recognized by the Power
concerned. ·
Whether that was a theory which .M.r.Louw had in mind when he SOUTH WEST AFRICA
made these statements, or whether he approached the matter on a much
more practical footing, in referring to the policy of acting in accordance
with the spirit of the Mandate, is not clear tome on reading these state
ments. Sorne of them appear to have indications one way; sorne, the
other way. The attitude is not fully explained in any of them. For
instance, Mr. President, the fust statement made by Mr. Louw, on r8
November 1948, when he addressed the Fourth Committee with regard to
a draft resolution which recommended, inter alia, that South West Africa
be placed under the Trusteeship System (p. r63, supra), suggests that
Mr. Louw may quite possibly have had in mind either of these alter
natives which I have mentioned--either the alternative that, on a par
ticular theory of law, the obligations could have fallen away, leaving
the rights or powers under the Mandate, or, the more simple alternative
that, although the Mandate lapsed in toto, as a matter of law, there was
a course of conduct which recognized the spirit of the Mandate, and,
that, in order to test whether Respondent was, in fact, acting in the
spirit of the Mandate, regard was accordingly to be had to what the
nghts and obligations of the mandatory had been under the Mandate
which was to be regarded as having lapsed.
The statement reads as follows:
"Mr. Louw pointed out that the provisions of the second operative
paragraph of that draft resolution precluded any possibility of arriv
ing at the agreement contemplated in the League of Nations' last
resolution on the question. According to that resolution, the man
datory power was to continue to fulfil its functions until new agree
ments had been concluded . . . The representatives of the Union
of South Africa felt that the paragraph was contrary to the pro
visions of the Charter inasmuch as it disregarded rights possessed
by the Union of South Africa under the Mandate and the Charter."
{P. 163. supra.)
The Court will see that the context is one of questioning whether the
United Nations bad any right to interfere with a particular situation.
The last sentence may have emanated from a legal theory of the nature
I have mentioned, or the idea may merely have been that South Africa
was, in terms of the resolution of the League on 18 April 1946, to fulfil
its functions until new agreements had been concluded, and that this
expectation necessarily entailed a continuation of the situation as it
existed under the Mandate, and that the United Nations had no power
to interfere with it. That may have been the simple basis upon which
this argument was propounded.
It is not clear, Mr. President, which of the two ideas underlay the
statement, but, as far as I can see, it does not matter whatsoever for
purposes of the present argument. In particular, I cannot see how any
thing involved inthe question whether one is to interpret that particular
statement in one way or another, can possibly affect the question of
supervision of mandatory administration, because this statement is not
directed to such a question at all.
The Applicants seek to connect this statement of Mr. Louw in 1948
with a statement made by another representative of Respondent in the
General Assernbly in I946, which included these words: "... together
with its right of full liberty of action, asovided for in paragraph r of
ArticleSo of the Charter." (P. r64, supra.) ARGUMENT OF MR. DE VILLIERS
·A propos of·this, my leamed friend, Mr. Moore, said in his argument:
"The view seems to have been that Article 8o (r) of the Charter provided
for rights,but not for.obligations." (Ibid.)
Mr. President, my Ieamed friend seems to have lost sight of the date
of this last statement. That date was 17 January 1946. as.will appear
from the Counter-Memorial, II, p. 41. -In other words, it was sorne
months priorto the dissolution of the League .
. The Respondent has never suggested that the Mandate lapsed in whole
or in part, whether as regards rights or as regards obligations, prior to
the dissolution of the 1;-eague.During the period between the coming into
force of the Charter and the dissolution of the League, Article 8o (r}
would, indeed, have been significant in demonstrating that nothing con
tained in the Charter derogated from Respondent's rights or obligations
under the Mandate. Therefore, that earlier statement, Mr. President, is
not at aUrelevant on the question of what the effect of dissolution of the
League would be.
The next statement by Mr. Louw, which is relied on by the Applicants,
is one of 9 November 1948, made in the Fourth Committee, when he said:
". . . the closer union scheme was nothing new or startling. The
right to incorporate the territory of South West Africa was inherent
in the former Mandate •.. " (P. 164, supra.}
We can consider this statement, Mr. President, in conjunctioti with
the third one relied upon by the Applicants, which was made by Mr.
Louw on 26 November 1948, when he quoted a cable received from thé
South African Prime Minister, which stated:
"The South African Government is exercising a right which has
never been disputed to administer the territory as an integral part
of the .Union, pursuant to the power granted in the original Man
date." (Ibid.)
Mr. President, the matter then in issue concerned the provision for
direct representation of South West Africa in the Union Parliament,
and the question was whether South Africa, by announcing its intention
to make such provision, was going back on its previous statement that
it would not proceed with incorporation of the Territory. That was the
question at issue in these debates.
It was purely a matter of comparing what South Africa was proposing
to do, with a statement it had made before to the effect that it did not
intend, as a matter of policy, to proceed with incorporation of South
West Africa, and of seeing whether there was any inconsistency between
those two things. Now, the South African attitude, expressed in the
telegram from the Prime Minister and by Mr. Louw himself, was that
the projected step did not amount to annexation, but involved the per
formance of an act which had been permitted by the Mandate. The
Mandate was, in this context, specifically called "the former Mandate",
by Mr. Louw, and in the telegram of the Prime Minister it was referred
to as "the original Mandate". In this context, Mr. President, the state
ment seemed to have amounted to nothing more than an explanation
that South Africa was acting entirely in accordance with its self-imposed
limitation of administering the Territory in the spirit of the Mandate.
That was ail that the context indicated. This limitation involved a
voluntary abstention from unilateral incorporation, but not an under
taking to abstain from acts of doser association which had been per- SOUTH WEST AFRICA
mitted under the Mandate. That was what Mr. Louw was intimating
to the United Nations. The extent of the rights granted by the Mandate
was consequently relevant to this discussion. The gist of the argument
was merely that, if one acts in the spirit of the Mandate, one has regard
not only to the obligations imposed by the Mandate, but also to the
rights which could be exercised under the Mandate. A few days·previ
ously Mr. Louw had put this matter explicitly in the same way to the
Fourth Committee, and 1 quote from the Fourth Committee records 1948,
Part 1, 81st Meeting, 16 November 1948, page 346. Mr. Louw said:
"The doser union scheme was nothing new or startling. The right
to incorporate the Territory of South West Africa was inherent in
the former Mandate, and the present Government was going no
further than the Union Government had proposed to go in 1934,
when the League of Nations had raised no objection.
Mr. Louw repeated that it was the intention of the Union Govern
ment to administer the Territory of South West Africain the spirit
ofthe mandate of the League of Nations." (Fourth Committee, 1948,
Part 1, 81st Meeting, 16 November 1948, p. 346.)
Upon analysis, therefore, Mr. President, nothing in Mr. Louw's state
ments appears to be relevant to the present issue. There is certainly
nothing in them, as far as I can see, which even tends to support the
contention of the Applicants to the effect that Respondent had by its
conduct recognized that the United Nations had replaced the League as
the supervisory organ over the Mandates. How these statements could
have any bearing upon that question has, 1 must say, somehow escaped
me.
Mr. President, I may, therefore, summarize our contentions in regard
to the actions and staternents of the Respondent, as referred to by the
Applicants, in their arguments, namely from the date of the dissolution
of the League until the end of 1947. That is the crucial period on which
the Applicants rely, the period during which they say that a certain
attitude of acquiescing in, or consenting to, United Nations supervision
over the Mandate was manifested by the Respondent, before the change
about came in the FaU of 1947.
Mr. President, one finds, on analysis, that the only relevant statements
from Respondent's side during that period-the only relevant ones on
the question of accountability as distinct from the question whether the
Mandate was still in existence-amounted to three. The first one was the
statement of General Smuts in November 1946, which we find in the
Counter-Memorial, Il, at pages 53-54- The second was the letter of
23 July (also rcfcrred to as United Nations Document A/334) which is
quoted in the Counter-Memorial, Il, at page 55. The third was the state
ment of Mr. Lawrence in September 1947 quoted in the Counter-Me
morial, II, at page 57, and followed by his later statement of November
of that year, quoted on the same page of the Counter-Memorial.
\Vhat is significant about these statements, Mr. President, is their
absolute consistency and the link which there is in each of them with
the earlier statement on the subject by the Union Government.
The statement of General Smuts in November of I946 referred back
to the intention which had been expressed on behalf of the South African
Government at the Jast session of the League Assembly. It identified
itself with that expression of intent and added something which had not ARGUMENT OF MR. DE ·VILLIERS
been stated before, namely that there would now be a submission of
statistical and other information, in accordance with Article 73 (e) of
the Charter. The very first intimation, on behalf of the South African
Government, of the submission of any information, or reports, or any
thing of that kind, was limited to the scope of Article 73 (e) of the
Charter. And that, in îtself, indicated that there was no contemplation
of the more onerous obligation of reporting and accounting under a
mandate. .
The second statement to which 1 have referred, namely in the letter
of 23 july 1947 {Document A/334), although it did not in terms refer
back to the statement of General Smuts, could, judging by the meaning
of its words and by its context, only have referred back to that state
ment because there was no other statement to which it. could have
referred in stating that the South African Government had already indi
cated its willingness to submit reports for the information of the United
Nations. The Smuts' statement was the only one to which that sentence
could have been intended to relate. It mentioned specifically, "for the
information of the United Nations", thus identifying itself on that
point, with the earlier statement by General Smuts; and more than that,
when Mr. Lawrence came to give his fuller explanation of what the
attitude of the Union Government was in this regard-i.e., maintenance
of the status quo and submission of reports for the information of the
United Nations-he·specifically gave that explanation with reference to
what had been intended to be conveyed in the letter of 23 July 1947.
There was, therefore, Mr. President, an absolutely consistent attitude
ali these relevant statements, one after the other, were linked and clearly
maintained the same attitude throughout. It was merety· a matter of
amjllifying later what _had already been stated before.
In these circumstances, it seems, Mr. President, that there was pos
sibly a measure of misapprehension in one portion of the minority opin
ion of this Court in 1956--a portion on which the Applicants appar
ently rely, although they do not specifically refer to it in this portion of
their argument. It is the portion, at page 65 of that 1956 report, which
reads as follows:
"An important element of the situation then existing [that was
after dissolution of the League] was referred to on a number of oc
casions by the Court [that is the Court in 1950] in the reasoning of
its Opinion: that is, the willingness expressed by the Urùon of South
Africa to regard itself as continuing to exercise its Mandate, to con
tinue to administer the Territory in accordance with the provisions
of the Mandate and to continue to render reports to the United
Nations." (I.C.]. Reports rgs6, p. 65.)
There is this reference, Mr. President, to a willingness expressed by the
Union of South Africa to continue to render reports to the United Nations.
It is put as if that was a general attitude expressed by the Union of
South Africa-and that that was how it indicated its attitude with re
gard to the consequences of dissolution of the League.
When we refer back to the 1950 Opinion on this point we find that in
the portion of the Opinion which deals specifically with the question of
accountability there is no reference whatsoever to any statements made
by, or on behalf of, the Union Government. That is the portion of the
Opinion at pages 136 to 138 to which I referred yesterday. We find a SOUTH WEST AFRICA
reference to the statements of, and on behalf of, the Union Government
only in respect of the earlier question decided by the Court, namely
whether the Mandate was still to be regarded as of legal force and in
existence. We find that those statements are dealt with at the bottom
of page 134, over on to pa~e 135 and up to the top of page 136. We fi.nd,
Mr. President, that there ISnothing in any of the statements, there re
ferred to, which resembles the general description we find in the 1956
Opinion-in the passage which I have just read--except on one point,
and that I shaH mention in a moment.
The varions matters referred to in that portion of the Opinion were,
firstly, the declaration made on 9 April 1946 in the League Assembly;
next, the memorandum suhmitted on 17 October 1946 on the question of
proposed incorporation, in which the Union Government was still re
ferred to as being the mandatory-purely on the question, therefore,
whether the Mandate was still in existence; next, the reference to the
statement of 4 November 1946 by General Smuts, not the one to which
I am referring about reportmg-about giving information under Article
73 (e)-but an earlier statement in which General Smuts had repeated
the declaration which the representative of the Union had made previ
ously to the League of Nations, and lastly, a reference to the letter of
23 July 1947 to the Secretary-General of the United Nations. This last
constitutes the only exception to which the general statement in the 1956
minority opinion could possibly have been intended to relate. I shall
read that passage in the 1950 Opinion:
"In a letter of July 23rd, 1947, to the Secretary-General of the
United Nations, the Legation of the Union referred to a resolution
of the Union Parliament in which it was declared 'that the Govern
ment should continue to render reports to the United Nations Orga
nization as it bas done heretofore under the Mandate'. It was further
stated in that letter: 'In the circumstances 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.' "
(l.C.J. Reports I950, p.IJS.)
Now, Air. President, the reference to this phrase "continue to render
reportsto the United Nations ... as it bas done heretofore under the
Mandate" is not a reference to anything said by, or on behalf of, the
Union Government to the United Nations, or in any international con
text. It is purely a reference to a phrase occurring in a resolution, as it
is here called, of the Union Parliament. It was 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
Parliament.
· The distinction is a very important one. In South African constitu
tionallaw, which follows the British pattern in this respect, which will
be well-known to members of the Court, the individual Houses of Parlia
ment have no legislative powers, except for internai rules of procedure and
so forth. In law the effect of a resolution is, therefore, merely something
in the nature of a communication to the Government-a request to the
Government~ expnression of opinion which it is expected that the
Government will heed but which the Government is not bound to do so.
A government which does not pay heed to an expression of opinion, or a
request, or a resolution of one of the Houses of Parliament, may incur ARGUMENT OF MR. DE VILLIERS
certain political consequences as a result thereof, but no legal consequence
will result therefrom.
To put the matter at its extreme, Mr. President, suppose in such a
resolution of one of the Houses of the Union Parliament there had been
an express provision to.this effect, viz. that the Union Government ought
to accept accountability to the United Nations and continue to render
reports on the basis of being accountable under the Mandate to the
United Nations, it would have had no legal force or effect whatsoever
unless the Union Government, the Mandatory, had acted upon that re
quest and had conveyed it to the United Nations as being its own atti
tude. That would be the only step which could have any effect in this
regard. ,
But, Mr. President, if one reads this resolution of the House of Assem
bly of the Union Parliament in its proper context, it is perfectly clear, of
course, that nothing of the kind which I have just suggested, was intended
to be suggested in that resolution. The full terms of the resolution were
quoted and set out in the letter of 23 July, and we quote them, as being
part of the letter in the Counter-Memorial, ll, at page 55· That state
ment at the end "that the Government should continue to render reports
to the United Nations Organization as it has done heretofore under the
Mandate", is to be read in the context of the resolution as a whole, and
the second paragraph of the preamble reads as follows:
"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 to the United Nations Organization, or to any other
international organization or body, and did not in tact do so."
In other words, Mr. President, the contemplation of this resolution was
that there was to the United Nations no transfer of powers or rights
which had vested on the part of the League in regard to mandates.
Mr. President, 1 was referring the Court to the terms of the resolu
tion of the House of Assembly of the Union Parliament, set out in the
Counter-Memorial, ll, at page 55, and conveyed in Respondent's letter of
23 July 1947 to the Secretary-General of the United Nations. I pointed
out that, in terms of the second preamble of that resolution, the House
of Assembly clearly expressed its view that no supervisory powers in
respect of mandates had passed from the League to the United Nations.
In the light of that context, the phrase at the end of the resolution "that
the Government should continue to render reports to the United Nations
as it has done heretofore under the Mandate" can, at most, be said to be
a piece of ambiguous draftsmanship. It could hardly, in the light of the
second preamble, have been intended to mean reporting of the exact
kind which had taken place to the League of Nations under the Mandate,
in the sense of accounting in regard to compliance with mandate obliga
tions. It could at most, have been intended to refer to the act of sending
reports as had happened under the Mandate. That this was, how the
matter was understood by the Union Government appears clearly from
the manner in which this resolution was then conveyed to the Secretary
General and also from the statement, in this very letter of 23 July 1947.
by the Government on that subject. And that, after all, is the operative
part of this Ietter-that is the communication from the Mandatory of its
attitude to the United Nations, the wording there being: "The Union SOUTH WEST AFRICA
Government have already undertaken to submit reports on their adminis
tration for the information of the United Nations", thus referring back
to the earlier statement by General Smuts and the further explanation
by Mr. Lawrence sorne two or three months later, in September 1947.
Therefore, Mr. President, it appears that nothing occurred in this
period which was relevant as being an expression of Respondent's atti
tude about the matter, nothing more than these items to which I have
referred, namely Smuts' statement, the letter of 23 July and then Mr.
Lawrence's further explanations in September and November 1947, and
these make the consistent attitude of the Respondent Government in
this regard clear beyond any doubt.
In fact, what is also significant about this is that nobody in the United
Nations misunderstood the Respondent's attitude in this regard.
This appears from the immediate reaction in debates by United Nations
Members during the years 1946 and 1947, and even in 1948 and 1949
when certain of the governments concerned-a very small minority
seemed to have bad second thoughts about the whole position. But as
far as immediate reactions were concerned, reactions indicating the man
ner in which the other governments-the other Members of the United
Nations-bad understood the Union's attitude, there was absolute
unanimous confirmation of what 1 have been submitting to the Court,
namely that outside of trusteeship there would be no obligation on the
part of the Union Government to report and account to the United Na
tions in respect of its administration of South West Africa.
ln the light of the Applicants' oral contentions on this aspect of the
matter, i.e., the actions of the United Nations in relation to the statements
and actions of the Respondent, my Iearned colleague Mr. Muller, gave
very special attention thereto. The intention was that he would deliver
this portion of the argument to the Court but unfortunately he is indis
posed today and cannot do so. 1 very much regret that the Court will
not have the benefit of hearing his address on the matter. However, 1
have the benefit of his very full notes and, fortunately, the story, in its
main essentials and features, is absolutely clear and is not a difficult one
to tell.
The Applicants in their presentation, in their oral argument, contended
in this regard that actions of the United Nations supported the conclusion
"that the United Nations replaced the League as the supervisory organ
over the Mandate". That we find in the verbatim record at page 166,
supra. Now, in the elaboration of their presentation the Applicants con
tended that these actions comprised, firstly, certain resolutions of the
General Assembly and, secondly, statements made by Members of the
United Nations regarding the Mandate for South West Africa and also
regarding other mandates.
1 shall deal first with the resolutions, Mr. President. The first of the
resolutions relied upon by the Applicants was General Assembly resolu
tion 65 (1)of 14 December 1946. The Court will recall that that was the
resolution taken on the Respondent's proposai regarding possible incor
poration of the Territory. The Court will also recall that in this resolution
the General Assembly rejected the proposais regarding incorporation and
recommended that South West Africa should be placed under the trustee
ship system. Taking înto account, therefore, this scope and purpose of
.the resolution,it seems quite clear that it did not indicate at ali any
understanding that supervisory powers of the League of Nations over the ARGUMENT OF MR. DE VILLIERS
exercise of the Mandate had passed to the United Nations. The word.ing
of the resolution does not indicate that and nothing which can be in
ferred from it, contains any indication to that effect. Indeed, Mr. Presi
dent, as we pointcd out, it was in the very dcbates leading up to this
resolution that General Smuts made his clear statement, in November
1946, that reports concerning South West Africa would be furnished for
limited information purposes only. It is significant that in those very de
bates, this statement by General Smuts elicited no protest from any of
the Members of the United Nations to the effect that Respondent would
be subject to United Nations supervision in respect of the Mandate for
South West Africa, outside of trusteeship. There was not a single State
which, in those lengthy debates on the subject of possible incorporation
of South West Africa, reacted to General Smuts' statement by saying:
"You are now intending to do less than what your obligation requires of
you. You are obliged, quite outside of any trusteeship, to report and
account for compliance with the Mandate to the United Nations." Not
a single State took that attitude. .
Clearly,Mr. President, the three extracts which the Applicants quoted
from the Fourth Committee speeches in 1946(wefind them in the verbatim
record at p. 157, supra) do not evidence such an understanding, in any
way. I have dealt wtth those already and I have indicated that each one
of those dealt merely with Respondent's proposai for incorporation and
did not touch upon any question of supervision at aiL That is ali, as far
as resolution 65 (1) and the debates in regard to that resolution are con-
cerned. '
But now we find that the Applicants also rely on General Assembly
resolution I4I (II), of r November 1947, in presenting an argument re
garding actual exercise of competence by the United Nations of super
visory authority over South West Africa. That was the contention ad
vanced in the verbatim record at page 159, supra. They refer in this re-
. gard,Mr. President, to a passage in the 1950 Advisory Opinion in which
the Court stated: "this competence was in fact exercised by the General
Assembly in resolution 141 (Il) of November r, 1947." (I.C.J. Reports
I950, p. IJJ and the verbatim record at p. 159, supra.)
1 shaH deallater, Mr. President, with the view expressed by the Court
in this regard in rgso. 1 shall submit that in its context it is not what is
contended for by the Applicants, but I will deallater with that question.
At present 1 merely want to deal with the content of the resolution
and with the Applicants' own arguments in regard thereto. At page 159,
supra, of the verbatim record the Applicants say that: "The resolution
urged the Government of the Union of South Africa to propose a truste~
ship agreement for South West Africa", and 1 quote from what they say.
They say it authorized-
"the Trusteeship Council in the meantime to examine the report on
South West Africa recently submitted by the Govemment of the
Union of South Africa and to submit its observations thereon to the
General Assembly".
That statement, as far as it goes, Mr. President, is correct. But now, what
is important regarding the matter in issue is the understanding which
the United Nations had of the nature and the purpose of the report in
question, and correspondingly of the task which was being assigned by
the General Assembly to the Trusteeship Council in that regard. This SOUTH WEST AFRICA
contemplation appears from the preamble of the resolution, which read
as follows:
"Whereas the Government of the Union of South Africain a letter
of 23 July 1947 infonned the United Nations that it has decided not
to proceed with the incorporation of South West Africain the Union
but to maintain the status quo and to continue to administer the
Territory in the spirit of the existing mandate, and that the Union
Government has undertaken to submit reports on its administration
for the information of the United Nations;" (Gen. Ass. Res. 141 (Il)
of r November 1947).
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 ali this morning and part of yesterday,
on what the attitude was as expressed by the Union Government to the
United Nations.
In no way, iri our submission, does this resolution ind.icate that the
actions which it set in train were to involve an exercise of supervisory
power. Indeed, Mr. President, 1 shaH show that the very body to which
this report was referred, namely the Trusteeship Council, did not regard
it as such. The Trusteeship Council did not consider that it was required
to exercise a supervisory power in respect of this report.
The Applicants say in this regard in the verbatim record, page r6o,
supra:
"In accordance with resolution 141 {Il) of the General Assembly,
the Trusteeship Council did examine the report submitted by the
Respondent for the year 1946. ·
Although the Council, in the exercise of its competence, did not
agree upon t_heextent of supervision, there was no doubt asto the
legal authority of the Council to examine the report of the mandatory
power and submit observations thereon. Notwithstanding the dissolu
tion of the League, it was agreed that the Mandate continued in full
force and effect, and that the United Nations was the proper super
visory authority."
The Court will note that the Applicants make this emphatic statement
that it was agreed in the Trusteeship Council, firstly, that the Mandate
continued in force, and, second!y, that the United Nations was the proper
supervisory authority. In support of this statement-a completely un
qualified one, the Court will notice-the Applicants cite three extracts
from statements made in the Trusteeship Council by representatives of,
respectively, China, Be]gjum and the United States of America. That we
find in the verbatim record of 19 March, page 160, supra. 1 submit, Mr.
President, that an analysis of the attitudes adopted by the Members of
the Trusteeship Council, and by saying the Members 1mean ail the Mem
bers, and not only sorne, leads to an entirely different conclusion. 1 em
phasize the attitude of all Members, because this again appears, with
respect, to be a case where the Applicants have isolated a small portion
of the relevant evidence, presented it as being ail that is to be taken into
account as relevant and then drawn their conclusions from that.
ln accordance with Article 86 of the Charter the Trusteeship Council
in the years 1947-1949 comprised the representatives of the following
States-I shallgive them numbers in alphabetical sequence: {r) Australia,
(2) Belgium, {3) China, (4) Costa Rica, (5) France, (6) Iraq, (7) Mexico, ARGUMENT OF MR. DE VILLIERS
(8} New Zealand, (9) the Philippines, (ro} the Soviet Union, (n} the
United Kingdom, and (rz) the United States of America. 1twill be noted,
Mr. President, that five of these States were former mandatories
Australia, Belgium, France, New Zealand and the United Kingdom.
They would in the nature of thlngs have had a particular interest in the
future of these territories; it is to be expected that they would have
given serious thought to this whole question, and, in particular, Mr.
President, they would have been aware of aU the antecedents leading
up to the situation with which this Council was then confronted, parti
cularly if there had been tacit agreements between aUinterested parties
general understandings which were so clear that it was not necessary to
reduce them to writing or express terms, because everybody knew about
them. Certainly these States par excellencewould have known of such
arrangements and such understandings.
In these circumstances 1 shall analyse the attitude adopted by each
of the member States of this Trusteeship Council in the arder I have
ïndicated, i.e., the attitude they adopted with regard to Respondent's
obligations to the United Nations in respect of its administration of
South West Africa. In sorne cases the attitude appears clearly from state
ments made on behalf of these States in the Trusteeship Council itself.
In sorne cases it is necessary to go beyond what was stated in the Trust
eeship Council, and to read those statements in conjunction with others
made by delegates of the same States also in the General Assembly
Plenary and Fourth Committee at the relevant times.
I begin, therefore, to deal with (r) Australia. Mr. President, the atti
tude adopted by the Australian representatives was absolutely clear
and unambiguous. 1 refer, first, to extracts from the statements of
Mr. Evatt and Mr. Forsyth as set forth in the Counter-Memorial, Il,at
page 275. I do not intend to read them ali, but I would like to read
Mr. Evatt's statement made in Plenary Session, as given on that page.
"Therefore, there is no gap in the Charter of the United Nations.
If the Union of South Africa does not bring its Territory under the
Trusteeship System, it is still, in my view, a Non-Self-Governing
Territory. The Union Govemment will have to give, voluntarily,
reports for the information of the Secretary-General. The Secretary
General can do as he chooses with this information."
In regard to Mr. Forsyth's statement in the Trusteeship Council,
Mr. President, there is a short extract quoted in the Counter-Memorial
at page 275. 1 would prefer to read a fuller extract from the same state
ment, that is, from the source indicated at page 275 of the Counter
Memorial-a statement in the Trusteeship Council on 12 December 1947:
"Further, 1 think the position is strengthened when we ask our
selves this question: what is the purpose for which this report was
submitted? That purpose appears in the resolution of the General
Assembly in which it is stated that the 'Union Government has
undertaken to submit reports on its administration for the infor
mation of the United Nations'. The purpose is quite clearly stated
there: 'for the information of the United Nations.'
That is quite different from the purpose for which reports are
submitted on Trust Territories. The reports on Trust Territories
are submitted not merely to inform the Trusteeship Council but to
enable the Trusteeship Council to exercise its main function, the470 SOUTH WEST AFRICA
superv1s1on of administration. In the case of South West Africa,
which isnot a Trust Territory, the Trusteeship CoWlcildoes not have
the function of supervising administration. The administration of
South West Africa has b~en reserved by the Govemment of the
Union of South Africa as its own concem, and that Government, not
having placed the territory under trusteeship, does not recognize
the power of the Trusteeship Council to supervise its administration.
There is, therefore, a fundamental difference between the purpose
for which the report on South West Africa is submitted and the
purpose for which reports on Trust Territories are submitted. That
also explains why, in the case of Trust Territories, there are the addi
tional functions of considering petitionsand of sending visiting mis
sions to the territory. I submit that the purpose of this report is
entirely different or,t least, there is a very great difference between
the purpose as regards this report and the purpose for which reports
on Trust Territories are submitted." (Trusteeship Council; Second
Session, First Part, 15th Meeting, p. 477.J
One could hardly have it more clearly and explicitly stated, Mr. Pres
ident. The attitude is perfectly clear-there was no obligation at ail to
enter into a trusteeship agreement. Respondent, in the absence of a
trusteeship agreement, would have to give, voluntarily, reports for infor
mation purposes in terms of Article 73 of the Charter, but that would
not involve supervision, as in the days of the League. The purpose would
be a limited one directed at giving information, in contradistinction to
supervision, as made so clear in the statement by Mr. Forsyth which
I have just read.
Then we come to the case of Belgium, and I refer to the extract from
a statement by Mr. Ryckmans in the Fourth Committee on 12 November
1948, asquoted in the Counter-Memorial, Il, page 282: '
"Under the Mandate System, South West Africa had been admin
istered under aC Mandate, and it had always been understood that
the Territory would eventually be incorporated in the Union of
South Africa.
On the other hand, [he) felt bound to draw the attention of the
South African representative and the Committee to the terms of
Article 8o, which provided that nothing in Chapter XII of the
Charter should be 'construed in or of itself to alter in any manner
the rights whatsoever of any States or any peoples ... '. That in
cluded the people of South West Africa, who, having had the ben
efit of international supervision under the Mandate System, could
not be deprived of that right."
I also refer, Mr. President, to statements made by the same represen
tative in the Trusteeship Council on 1 December 1947, and in the Fourth
Committee on 17 November 1948. The first one-r December 1947 to the
Trusteeship Councîl-reads as follows:
"... there is. a point arising out of the Presîdent's statement upon
which I should like to comment. 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 Govem
ment as if it were a report from a Power administering a Trust
Territory. This is a controversial question.We shall in fact examine
this report as we examine any other, but in principle we should ARGUMENT OF MR. DE VILLIERS 47~-
consider it in the same way as it would have been considered by the
Permanent Mandates Commission. There is, however, no need to
mention this. It is sufficient to say that the Trusteeship Council will,
as authorized by the General Assembly, examine the Union of
South Africa's report on the Territory of South West Africa on a
given date, and it is unnecessary to state that the report will be dealt
with in the same way as a report on a Trust Territory. Should we
do so, we might receivethe reply: 'This report must not be examined
as a report on arust Terri tory but as one on a mandated terri tory.'
I thereforethink it unnecessary to specify this." (Trusteeship Conn
cil, Second Session, First Part,_ Sixth Meeting, 1 December 1947.
pp. 124-125-) . '
As regards the other statement to the Fourth Committee on 17 Novem
ber 1948, I wish to read only a brief portion. I quotc again from Mr.
Ryckmans:
"It was ·to be hoped that the Committee could agree upon a
workable resolution which would imply that the Union of South
Africa was not legally bound to place the Territory of South West
Africa under the Tnisteeship System, but which would ask the
Union Government, in exchange for United Nations recognition of
· the situation, and acceptance of its administration of South West
Africa,to admit the Trusteeship Council as the heir of the Mandates
Commission and to grant it the right to examine annual reports and
petitions."(Fourth Committee, 17 November 1948, pp. 362-363.)
Here, we find, Mr. President, a kind of in-betweenattitude, if I may
cali it that, an attitude that under Article 8o, paragraph 1; of the Charter,
the peoples of.South West Africa had a "right" to international super
vision; but an acknowledgement apparently, on the other hand, that
the machinery for bringing into existence such international supervision
had not yet been established; and therefore urging upon the Trusteeship
Council the finding of a workable resolution which would ask the Union
Government to recognize the Trusteeship Council in exchange for recog
nition from the United Nations. It was to be an agreement ''in exchange
for United Nations recognition of the situation, and acceptance of its
administration of South West Africa". The Union Govemment would
then be asked "to admit the Trusteeship Council as the heir of the
Mandates Commission, and to grant it the right to examine annual
reports and petitions".
ln so far as the representative of Belgium may have attached to
Article 8o, paragraph r, higher significance than 1 have just attempted
to express, it is significant that the Applicants now say that they do
not in their argument attribute such a higher signifi.cance to Article 8o,
paragraph r.
We come to the third one on the list~Chi Thnea. pplicants in their
oral presentation at p. r6supra,quote a passage from a statement made
by Mr. Liu Chieh in the Trusteeship Council on 1 December 1947. in
which he stated, inter aliaas follows:
"1 think that by design and by general acceptance the functions
and responsibilities of the Mandates Commission have fallen upon
the shoulders of the Trusteeship Council."
1 would like to refer the Court to statements made in the same year
by the same .representative of China, in the GeneraAssembly~Plenary472 SOUTH WEST AFRICA
and Fourth Committee-as quoted in the Connter-Memorial, II, page 275.
I read fi.rst the statement in the Fourth Committee:
"The only choice lay between trusteeship and the grant of inde
pendence. Article 8o, paragraph 2,of the Charter further proved
the obligatory character of the [the trusteeship] system ... If the
Union of South Africa placed South West Africa under trusteeship,
it would not be deprived of the administration of the territory; and
the only change would be the placing of that administration under
international supervision."
This was in September 1947' It was a contemplation, therefore, that
if the territory were not placed under trusteeship, it would not be under
international supervision. But we have that very much more clearly and
explicitly, Mr. President, in the next statement, the one in plenary on
1 November 1947:
"We are told that the Union of South Africa would administer
the Territory of South West Africa in the spirit of the Mandate of
the League of Nations. I do not doubt the sincerity of this statement
on the part of the Union of South Africa, but we ali know that the
mandate system has ceased to exist and that the Trusteeship System
has been established. Would it not be more desirable to administer
the Territory in question under a living system than under the
shadow of a ghost system?" (Il, p. 276.)
And then, Mr. President, 1 want to follow this up with the statement
made in the Trusteeship Council by the same representative on 12Decem
ber 1947:
"As the draft resolution submitted by the representative of Iraq
might be brought forward at a later stage, I should like to take this
opportunity to make one or two brief remarks. I think the fust three
paragraphs just state the facts, although 1do not know whether the
third paragraph is called for because it is evident from the Charter
that we are not claiming jurisdiction over South West Africa as a
Trust Territory.
If we state that the report is in fact not as comprehensive as
reports previously submitted by the Government of the Union of
South Africa, as Mandatory, to the Permanent Mandates Commis
sion, it may be contended at once that this report was not prepared
as a report to the Permanent Mandates Commission or to any
Commission of that nature. 1say this because it is a report of the
Government of the Union of South Africa on South West Africa
and was not prepared on the basis of questionnaires either by the
Permanent Mandates Commission or by the Trusteeship Council."
(Trusteeship Council, Second Session, 15th Meeting, 12 December
1947, p. 498.)
The points which emerge from these varions statements, Mr. President,
in my submission, are these:
In so far as there is a statement by the representative of China, that
by design and by general acceptance, the functions and responsibilities
of the Mandates Commission have fallen upon the shoulders of the
Trusteeship Council, that is suggested very tentatively. He makes it
plain that they have to be careful in their approach to this whole matter
in order to attempt to arrive at agreement with the mandatory power, ARGUMENT OF MR. DE VILLIERS 473
which is rouch the same attitude that was expressed by the representa
tive of Belgium in the statements to which I have already referred.
We start off with statements which indicate that, but for trusteeship,
there would be no international supervision-statements indicating the
contemplation that outside of the trusteeship system, there was no room
for international supervision.
We find, then, this somewhat inconsistent statement that, by design
and general acceptance, the functions and responsibiHties of the Man
dates Commission have fallen upon the shoulders of the Trusteeship
Council. But, Mr. President-and this is important-we do not find that
the Chinese representative said that South Africa bad, by consent, sub
mitted to such supervision; that South Africa, by doing so-and-so, or
stating so-and-so, bad done anything of the kind. We do not find the
Chinese representative saying that the general understanding at the
final session of the League Assembly was that there would be a transfer
of supervisory powers from the League to the United Nations, in respect
of madates not converted into trusteeships, as was originally contem
plated and proposed in the fust Chinese proposai on that occasion, and
as was allegedly maintamed as a general intent underlying also the final
resolution.
I proceed with State number four on the list, Costa Rica.
I wish to refer to a statement made by Mr. Canas in the Fourth Com
mittee on I7 November 1947. as quoted in the Counter-Memorial, n.
page 282:
"The United Nations should not act as though its bands were
tied by the Mandate. It bad not been a party to the mandate agree
ment, and could not therefore be obliged to act in accordance with
its provisions. Indeed, the Union of South Africa itself did not con
sider that the Mandate was still in existence, since it had stated that
it wotùd administer the Territory of South West Africain the 'spirit'
of the Mandate. As a legal contract between the Union of South
Africa and the League of Nations, the Mandate had disappeared
with the League, and there bad been no provision whereby the
United Nations became a party to the Mandate."
I wish to refer, Mr. President, to a further extract from a statement
by Mr. Morales in the Trusteeship Council on 12 December 1947:
"The point under discussion is whether the Mandate bas expired
or not. I do not know how far the Council can succeed in determin
ing hastily whether or not the Mandate is still in force.
It would be weil to avoid the word 'Mandate' and any reference
to the spirit or letter of the mandate. Perhaps we cotùd use sorne
better word in conformity with the spirit of the Charter, for al
though we know the Charter is barely two years old, the Government
of the Union of South Africa is one of the Mernbers of the United
Nations and, as such, is bound to fulfil the terms of the Charter.
That would obviate the difficulty of using the ward 'Mandate' which
is, as we have said, so controversial." (Trusteeship Council, Second
Session, I5th Meeting, I2 December 1947· p. so6.)
So it seerns, Mr. President, that in the views of the representatives
of Costa Rica, the Mandate bad disappeared with the dissolution of the
League; consequently, there could have been no contemplation on the474 SOUTH WEST AFRICA
part of these representatives that there was any obligation of reporting
and accountability, under the Mandate, to the United Nations.
Next we come to State number five, France.
We cite in the Counter-Memorial, II, at pages 276 and 283, statements
made by Mr. Carreau in the Trusteeship Council in 1947, and in the
Fourth Committee in 1948. I shall first read the statement made in the
Trusteeship Council in 1947:
"That text [of the General Assembly Resolution] was very care
fully 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 all to take the fi.rst step
in the direction of international supervision over the former man
dated Territory of South West Africa, pending reconsideration of
the Assembly resolution by the Government of the Union of South
Africa and a decision of that Government in that connexion ...
Indeed, in the absence of a trusteeship agreement, the Council
and the same would have been true of the Fourth Committee
could examine the report of the South African Government only
for information." (Il, pp. 276-277.)
This is a very clear and explicitly stated attitude.
' I now quote from the Fourth Committee records in 1948:
"The French delegation had frequently had occasion to recall
that the Trusteeship System had been substituted for the·Mandate
System. Once the League of Nations had ceased to exist, so had
the institutions which functioned under its aegis. When the United
Nations was set up, there remained nothing of the Covenant of the
League of Nations except its moral influence. The Mandate System
was reconstituted as the Trusteeship System with certain charac
teristic differences...
The South African Government had on severa] occasions expres
sed its desire to administer the Territory of South West Africa in
the spirit of the Covenant. It accepted the moral obligation of
ensuring the well-being and the development of the population,
leading it in due course to autonomy and ultimately to indepen
dence." (Il, p. 283.)
The attitudes of these representatives, Mr. President, are clear. They
go so far as to suggest that, with the disappearance of the League, the
legal force of the Mandate disappeared, and with it also the legal obli
gations, so that what remained was the moral influence of the Charter
and a moral obligation in the case of the South African Government to
ensure the well-being and development of the population. This is an
attitude entirely inconsistent with any suggestion of supervisory powers,
on the part of the United Nations Organization, emanating from the
Mandate-supervisory powers in respect of an obligation of account
·ability under the Mandate-and, therefore, a conclusion that the infor
mation is submitted for information purposes only.
We come to number six on the list, Iraq.
We have statements by Mr. Khalidy and Mr. Jamali in the General
Assembly-Plenary and Fourth Committee-and in the Trusteeship
Council, ali in 1947.
In the Fourth Committee, Mr. Khalidy- ARGUMENT OF MR. DE VILLIERS
475
"... pointed out that the trusteeship system of the United Nations
had replaced the mandate system ...
The mandate system had ceased to function. The Union of South
Africa had not accepted the trusteeship system, to which there was
no alternative. The trusteeship system offered the only legal right
to administer a territory formerly under mandate." (Il, p. 277.) 1
Mr. Jamali sta ted in the Plenary :
"Now the League of Nations is dead, but the principles under
lying the mandates are not dead. Chapter XII of the Charter cer
tainly replaces Article 22 of the Covenant ...
There is no obligation [to place a Mandated territory under the
Trusteeship system], but those members of the General Assembly
who worked on the trusteeship Chapter of the Charter at San
Francisco will remember that, although there was no obligation on
the mandatory power to put a territory under the Trusteeship
System, it was implied that the mandatory Power wowd either put
such a territory under trusteeship in due course, or declare its
independence . . . . · :, .
There is no further alternative . . . ,,
1believe that the retention of the Territory of South West Africa,
neither under the Trusteeship System nor as an independent terri
tory, is a retrograde step. "It is contrary to the spirit of the Charter,
and it is a deniai of the right of the United Nations to supervise the
welfare and freedom of all peoples all over the world." (Ibid.)
Mr. Khalidy rriade a statement to the same effect in the Trusteeship
Council in 1947, Mr. President-shorter but still to the same effect
dted in the Counter-Memorial, II, page 278, which I am not going to read
to the Court.
The attitude is a clear one. The Mandate is dead and, therefore, there
is no possibility of supervision in terms of the Mandate-only two pos
sible alternatives--trusteeship or independence-nothing in between.
Then we have Mexico, number seven on the list.
The attitude adopted by Mexico, Mr. President, appears from state
ments made by its representative on the Trusteeship Council during the
years 1947 to 1949, and the representative was Dr. Luis Padilla Nervo,
who was then Ambassador Extraordinary and Minister Plenipotentiary,
and Permanent Representative of Mexico to the United Nations.
I have to refer to certain aspects of these statements, in order to get
the gist of the attitude taken on behalf of Mexico on that particular
occasion. · · ·
The attitude is best understood, Mr. President, after consideration of
a full statement made by the honourable representative for Mexico on
the subject of South West Africa, in the General Assembly on I Novem
ber 1947:
"The Government of the Union of South Africa decided not to
place the mandated Territory of South West Africa under the Trus
teeship System, but to continue to maintain the status quo and to
administer the Territory in the spirit of the Mandate. That position is
not, 1believe, in accordance with the spirit and the intent of Chapter
XII of the Charter of the United Nations, which provides that ali
territories previously held under mandate. if not granted indepen
dence, shall be brought .under the Trusteeship System. . SOUTH WEST AFRICA
Could we say that the fourth paragraph of the prearnble of the
resolution before us (document A/422) goes too far? [That was the
paragraph which urged the Govemment of the Union of South
Africa to propose a trusteeship agreement.] We do not think so. We
believe that the discussions held in San Erancisco with regard to
this matter, which concluded with the establishment of an Interna
tional Trusteeship System, are in themselves evidence of the fact
that the signatory Powers were determined to ensure that the man
dated territories would continue to be under international super
vision. They were determined to ensure that the mandated terri
tories would not revert to the status of colonies by the very fact of
the liquidation of the League of Nations and the termination of the
mandate system. The Charter, which is far superior to the Covenant
of the League of Nations as an instrument of international co-opera
tion, had to include and did include precepts wlùch represented a
step forward, not backward, in respect of the system of mandates.
It has been said that the world took a very long step forward
when Article 22 of the Covenant of the League of Nations came into
force. Can we now deny that Chapter XII of the Charter of the
United Nations was intended to be not only a substitute for Article
22 of the Covenant of the League of Nations but, what is more im
portant, a step along the sarne road? Neither the framers of the
Charter of the United Nations nor the framers of the Covenant of
the League of Nations ever intended that the mandated territories
should revert back to the status of colonies. South West Africa will
be nothing but a colony if we agree to the position taken by the
Govemment of the Union of South Africa.
The representative of the Union of South Africa has stated in the
Fourth Committee that maintaining the statusqua does not, of course
mean that the Govemment of the Union of South Africa daims that
the Mandated Territory is a colony. The Govemment of the Union
of South Africa recognizes that it is not a colony.
However, if the Territory is no longer a mandate and if it is never
to be a Trust Territory, what will be the result? The representative
of the Union of South Africa devises a new and anomalous category
and states that the position of the territory isui generisThe repre
sentative of the United States of America very correctly stated in
the Fourth Committee that the Union of South Africa 'doesnot have
a legal title to the Territory of South West Africa'." (Plenary Meet
ings, 105th Plenary Meeting, 1 November 1947, pp. 594-595·)
Now, Mr. President, may I refer back to his statement in the Trustee
ship Council on I December 1947-that was at the Trusteeship Council
meeting, 6th Meeting, 2nd "Session, 1st Part, 1 December 1947-at page
129 of the record:
"As every member of the Council knows, my Government adopted
a clear position in regard to the matter of South West Africa when
it came before the General Assembly. But 1 believe the question
before thisCouncil now is much simpler. [This is now before the Trus
teeship Council.] The Union of South Africa has voluntarily placed
before the General Assembly a report which concems the Territory
of South West Africa. The General Assembly, as the sole judge of
what to do with that report, decided to send it to the Trusteeship ARGUME:::fT OF MR. DE VILLIERS 477
Council for its consideration, and requested that the Council maké
its observations regarding the report. That is all this Council, in my
opinion, has to do now."
1refer next to a statement in the Tnisteeship Council on 23 July 1948;
by the same honourable representative. The reference is to the records
of the Trusteeship Council, 3rd Session, 31st Meeting, 23 July 1948,
page 4?8:
"Mr. Padilla Nervo (Mexico) pointed out that his delegation had
·always shared the opinion of the Fourth Comrnittee of the General
Assembly to the effect that the Government-of the Union of South
Africa should propose a draft trusteeship agreement for the Terri
tory of South West Africa. The fact that the Council considered the
report presented by the Union of South Africa did not in any way
mean that it consented to deal with a 'tliird category of territories
not specifi.edin the Charter. Mr. Padilla Nervo observed that, follow
ing the debate in the Fourth Committee, it had been decided to
entrust the consideration of the report in question to the Trusteeship
Council, and not to another Comrnittee of the General Assembly or
to the Committee on Information from Non-Self-Governing Terri
tories, precisely so asot to create the impression that South West
Africa was receiving the same treatment as a non-self-goveming
territory. Sincethe report in question related to a former mandated
Territory, it was natural that it should be dealt with by the Trustee
ship Council, as it was the latter's duty to study reports relating to
ali other former mandated Territories. ·'
In studying the report, the Council would not in any sense be
approving the South African Government's attitude, but only <;tis
charging the duties inposed on it by the General Assembly." ··
Then we come to a further.statement in the Trusteeship Council, at
the same meeting, 23 July r948-pages 4I4-415 of the record:.
"Mr. Padilla Nervo said the Council was examining the report of
the Union of South Africa in 'quite special circumstances. That it
liad been called upon to do so by a resolution of the General Assem
bly didnot mean it would be the practice of the Council in the future
to examine the reports which the South African Govemment might
submit to the United Nations. The next session of the General As
sembly would have to take a ~ecisi oonthat point."
Now, Mr. President, upon analysis, it would seem that the view of the
representative of Mexico was that it was an essential characteristic of
ail mandates to be under international supervision. His attitude was,
further, as we understand it, that there was at least a moral obligation
to enter into a trusteeship agreement. If this moral obligation was not
complied 'with, then South West Africa would, in effect, be nothing but
a colony, and, in this context, ali it could mean would be that it would
be free of international supervision. We note, Mr. President, that the
honourable representative of Mexico agreed with a statement made by
Mr. Dulles of the United States, and which read as follows: ·
"The Union of South ·Africa had no legal title to the Territory at
. ·present, because its only title was a mandatory under the League
of Nations." (G;A., O.R., Second Session, 38th Meeting, 7 October
1947, p. so and Il, p. 28r.) SOUTH WEST AFRICA
That inclicates, Mr. President, that the attitude was that the Mandate
had lapsed-the Mandate was legally no longer in operation-and that
being the premise surely it would follow that there could be no concept
of international supervision, of aduty to submit to report and accounta
bility under the Mandate, as a mandate. That fits in entirely with the
concept that, if South West Africa was not put under the trusteeship
system, then it would, in effect, be nothing but a colony.
We note, al$o, Mr. President, that the honourable representative said
in the Trusteeship Council that "the Union has voluntarily placed before
the General Assembly a report"; secondly, "the fact that the Council had
considered the report did not in any way mean that it consented to deal
with a third category of States not mentioned in the Charter" -a third
category obviously meaning "in addition to trusteeship terri tory and non
self-governing terri tories". We note, Mr. President, that he further re
ferred to a "former mandated territory".
It seems perfectly clear that this representative of Mexico certainly
clidnot understand that the South African Govemment had, in any way,
previously committed itself by consent, or by acquiescence, or by any
similar process, to accountability in tenns of the Mandate to the United
Nations.
1 have had to read through severa! extracts from these statements in
order to extract the gist from them, because there was no particular
statement which, in a few tines, specifically clirected attention to the
point, but, upon this analysis, and upon taking the salient features of
these statements, they admit of only one construction, in my submis
sion-Qnly one interpretation-and that is that there was no contempla
tion whatsoever of an arrangement, as contended for by Applicants,
namely that the Mandate was in existence and that South Africa had
accepted substitution of United Nations organs, as supervisory organs,
in respect of its obligations under the Mandate-Qrgans to which it
would have to report and account for compliance with substantive
obligations under the Mandate. The statements make it perfectly clear
that there was no contemplation even of the Mandate still being in exis
tence, but, apart from that, no contemplation of any international
supervision on the basis of the Mandate, and that, if the Territory was
not placed under trusteeship, it would, in effect, have the status of a
colony.
Next we come, Mr. President, to the case of New Zealand, that is No. 8
·on the list. We refer first to a statement by Sir Carl Berendsen, in the
Fourth Committee, on 27 September 1947:
"Speaking as the representative of New Zealand, he favoured
the international supervision of all backward peoples, but main
tained that there was no legal obligation on any Mandatory Power
to place a mandate under the trusteeship system. The Committee
could not therefore accuse the Union of South Africa of failing in its
duty." (II, p. 278.)
I proceed to refer to a statement in the Trusteeship Council on 12
December 1947, by the same speaker, quoted at the same page of the
Counter-Memorial. We have a fuller extract available, Mr. President.
The reference is the same as is given in the Counter-Memorial, and to put
this into Hs proper perspective, I would like to read from this fuller ex
tract: ARGUMENT OF MR. DE VILLIERS 479
"1 am sorry to say, and 1 shall explain why in a·moment, that 1
must agree with the representatives of Australia and Costa Rica.
[The Court will recall this is a statement in the Trusteeship Council,
it is on the question of the nature of the function which the Council
now has to perform in regard to this report which the South African
Govemment had sent to the United Nations and which had been
sent to the Council for its attention by the General Assembly.] This
is not a Trust Territory. We derive no powers from the Charter.
Our only powers are derived from the resolution of the General
Assembly, and our powers are limited by that resolution. Under
that resolution we are specifically authorized to examine the report
on South West Africa recently submitted by the Govemment of the
Union of South Africa. It is no concem of ours whether it is obli
gatory or not obligatory on a former mandatory to bring the man
dated area under the Trusteeship System. That 1sno concem of ours
at aiL It is no concem of ours whether the Government of the Union
of South Africa was right innot bringing that area under the Trustee
ship System. It is no concern of ours whether they have the legal
power to decline to do so. AU of those things are quite beyond our
purpose here.
There was, as we aU remember, a very considerable argument in
the past two General Assemblies as to whether there was a duty
on a mandatory to bring a mandated area under trusteeship. There
was a difference of opinion, a very considerable difference of opinion.
1 am one of those who felt-and I am convinced as usual that 1 was
right-that there is no legal obligation, that the Union of South
Africa was legally entitledto take the course that it took. But I am
also one of those, one of very many, who feel it is unfortunate that
the Union of South Africa did take the course it did.
1 w~~d not suggest for a moment that in examining this report
the representatives around this table are confined to the actual words
oLthe report. They are entitled, if we are to deal with the report
responsibly, to take into account what is within their knowledge.
But we are not entitled-and 1regret it .very much indeed-we are
dearly not entitled to send a visiting mission. We are clearly not
entitled to accept petitions. We are clearly not entitled to hear oral
representation." (Trusteeship Council, Second Session, First Part,
r5th Meeting, 12 December 1947, pp. 478-480.)
· A very clear statement, Mr. President, in which regret is expressed
about the practical implications of the situation: the New Zealand repre
sentative would very much have preferred to have the practical situa
tion different but, as he saw the legal situation, quite obviously the
United Nations had no supervisory powers in respect of this matter.
Next, No. 9 on the list, we come to the Philippines. We have two state •
ments by General Romulo in the Fourth Committee during 1947, as
quoted in the Counter-Memorial, Il, page 279· The first statement was
made on 25 September 1947 and read as follows:
"The Union of South Africa had contended that it had obtained
its power from the League of Nations, but it had forgotten the new
obligations it bad assumed under the Charter. Chapter XI of the
Charter contained a declaration which applied to ail the Non-Self
Goveming Territories, whether mandated or not. That declaration SOUTH WEST AFRICA
embodied obligations whlch far exceeded those of the mandate sys
tem. The resolution of the Union Parliament implied that these
obligations would be fulfilled by the submission of information."
Next we have his statement of 8 October 1947, still in the Fourth Com
mittee:
"While supporting the draft resolution submitted by the repre
sentative ofIndia, [he] could not subscribe to the fifth paragraph of
that proposai, to the effect that South West Africa was 'at present
outside the control and supervision of the United Nations'. Chapter
XI of the Charter applied to ali the Non-Self-Governing Terri tories ...
According to Article 103 of the Charter, obligations under the
present Charter superseded other international obligations, and that
meant in effect that the Union of South Africa was bound to fulfil
its obligations under Chapter XI as long as South West Africa re
mained outside the trusteeship system."
In other words, Mr. President, there is a contention for no more than
what is provided for in Article 73, or Article 73 (e), of Chapter XI of
the Charter in so far as may be relevant to this particular point.
We also refer, Mr. President, to extracts from statements by Mr. Ingles
in the Trusteeship Councillater in the same year. The first one was at
the meeting of 1 December 1947-T.C.O.R., Second Session, First Part
(to which I have referred before), at page 128:
"The point has also been raised that we are not considering a
report from a Trust Territory but a report from a territory under
mandate. One of the obligations assumed by the Mandatory Power
in this particular territory is to receive petitions. As I understand
it, under its mandate the mandatory is to receive petitions. I refer
to the procedure followed by the Mandates Commission; that Com
mission could receivejetitions from people of the mandated terri
tories.If, as contende by the representative of China, the Trustee
ship Council takes the place of the Mandates Commission, then
pursuant to the authority of the Mandates Commission to accept
petitions, the Trusteeship Council may accept such petitions as long
as they concern matters embraced in the report.
1 should like to support, therefore, the suggestion made by the
representative of Iraq that, in case a petition is made by the people
of South West Africa that they should be beard on the report, their
petition should be accepted by the Trusteeship Council." (Trustee
ship Council, Second Session, First Part, 15th Meeting, 1 December
1947. p. 128.)
A further statement on 12 December, Mr. President, in the same Trustee
ship Council, page 476, reads:
•
"lt is stated in the resolution that the Union Govemment is going
to 'maintain the statns quo and to continue to administer the terri
tory in the spirit of the existing mandate ... '
The least that this Council could do, therefore, is to examine this
report in the same .way that the Permanent Mandates Commission
used to examine the reports of the Union of South Africa. 1say that
is the least which this Council could do, because 1 also associate
myself with the observations of the representative of China to the
effect that the Trusteeship Council could examine the report as if ARGUMENT OF MR. DE VILLIERS
it were a report from a Trust Territory." (Ibid, 12 December 1947,
p. 476.)
Mr. President, there we see an inconsistent attitude, inconsistent with
the earlier extracts which I read to the effect that there could only be
consideration of voluntary information on the basis of Chapter XI of the
Charter.
lt was not consistent attitude but still, in so far as it identified itself
with the general statement of the Chinese representative that for pur
poses of examination of this report the Trustceship Council was to be
regarded as having taken the place of the supervisory organs of the
League, there is no reference whatsoever to anything which may be said
to have involved agreement or consent on the part of the Union of South
Airica. On the contrary, there is a pointed reference to the attitude taken
up by the Govemment of the Union of South Africa, namely that it was
contmuing to administer the Territory in the spirit of the Mandate.
[Public hearing of 8 April I965]
1 was dealing yesterday with the attitudes expressed, one by one, by
the 12 States which were members of the Trusteeship Council during the
years 1947-1949. This was in answer to the Applicants' contention that
within the Council it was agreed that the Mandate continued in full force
and effect, and that the United Nations was the proper supervisory
authority. I dealt at the conclusion with the attitudes expressed by nine
of the States, and I proceed now to the tenth one, the Soviet Union. ·
The statements to which I shall refer are ali contained in the Counter
Memorial, II, the first one being at page 281. There Mr. Stein said as
follows:
"lt is also known that the South African Government refused to
comply with this recommendation [to submit a trusteeship agree
ment] and set up an absurd juridical status for South West Africa
which consisted in the administration of South West Africa being
carried out 'in the spirit of the League of Nations Mandate'. 1 say
that this is an absurd juridical status, since now, in 1947. after the
League of Nations and the mandate system have ceased to exist,
and reference is made to this system in order to conceal the actual
annexation of South West Africa."
The next reference is on page 284 (II) of the Counter-Memorial-a state
ment in the Trusteeship Council in July 1948 by Mr. Tsarapkin:
''... his delegation held that the Trusteeship Council could not con
sider the report submitted by the Govemment of the Union of South
Africa, because the status of the Territory was at present undeter
mined. While it was true that the Union of South Africa bad declared
that it would administer the Territory in the spirit of the existing
mandate, it should not be forgotten that both the mandate system
of the League of Nations and the Permanent Mandates Commission
no.longer existed. Hen<::e,there was no legal basis for the administra
tion of that Territory by the Union of South Africa."
In August of the same year there was a further statement by the same
speaker:
"He was of the opinion that a report on the. Territory of South
West Africa could be considered only after this Territory is included SOUTH WEST AFRICA
in the Trusteeship System and a Trusteeship Agreement is approved
by the General Assembly ... He considered that there exist only two
alternatives to deal with the former Mandated Territory of South
West Africa-either this Territory should become an independent
State orshould be included in the Trusteeship System ... " (II, p. 284.)
So, Mr. President, there was a very clear and unambiguous attitude
the mandates system no longer existed, nor did the Mandate, and the
United Nations had no supervisory powers outside the trusteeship system.
Then we come to the attitude of the United Kingdom, the next one on
the list, No.II.1 refer to the same page of the Counter-Memorial, where
the following statement by Sir Alan Burns in the Trusteeship Council
on 4 August 1948 appears:
"The Council bad been asked to consider the report on the ad
ministration of South West Africa simply because that Territory
'wasfonnerly under mandate, and the General Assembly hoped soon
to see it placed under the Trusteeship System. 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 generis; the Council had
no right to assume that the General Assembly would takeany par
ticular course of action on the basis of the Council's reports."
1 emphasize, Mr. President, the statement that the Council had been
asked to consider the report "simply because that Territory was former!y
under mandate, and the General Assembly hoped soon to see it placed
under the Trusteeship System''.
Then there is a later statement, given at page 286 of the Counter
Memorial (11)-a very explicit one:
"It could not be said that the Govemment of the Union of South
Africa had repudiatcd its previous assurance since it had complete
liberty to decide whether or not to transmit information."
That was said in the course of the debates on that subject on November
1949, when the decision of the Union Govemment had been conveyed
that it would no longer submit information as before.
That again makes it dear, l\lr. President, that in the contemplation
of the United Kingdom there could be no accountability to the United
Nations because Respondent had complete freedom to decide whether or
not to transmit information.
The last one on the list-not the least~N o.-is the United States
of America. There 1 would like to refer the Court fust to a statement by
Mr. Dulles in the Fourth Committee in October 1947; we get that in the
Counter-Memorial, II, at page z8r:
"The Union of South Africa had no legal title to the territory at
present, because its only title was a Mandatory under the League of
Nations."
This is, therefore a clear attitude, Mr. President, that the Mandate no
longer existed. This was in October 1947.
In the records of the Trusteeship Council of 1 December 1947 there is
a statement by Mr. Gerig which is not quoted in the Counter-Memorial.
1 should like to read it to the Court now-the reference is_Trusteeship
Council, Second Session, rst Part, 6th Meeting, pages IJO-IJI: ARGUMENT OF MR. DE VILLIERS
"Mr. Gerig (United States of America): 'I am substantially in
accord with the representative of Mexico. 1 think the only real ques
tion left before us is what to do with the petitions relating to South
West Africa referred to in document T/ss. 1 think there were sorne
members of the Council who felt that we should hear such petitioners
orally. If we did that, we wowd be treating this territory as if it
were a Trust Territory, and 1 think everyone now agrees that we are
not going to treat it as a Trust Territory.
On the other hand, it is a mandated territory, recognized as such
by everyone, including the Union of South Africa. As has been said
here before, petitions were examined by the Mandates Commission,
and we actually have a petition before us. I think the question will
be whether we shall consider this petition to be admissible or not.
That seems to be still an open question. Otherwise, it seems to me
that the procedure with reference to this report is entirely clear'."
The Court will recall that the Applicants in the course of their argument
quoted this excerpt: ''.. . it is a mandated terri tory, recognized as such
by everyone, including the Union of South Africa" (p. 160, supra). Before
commenting on that, and the contrast between this statement and the one
by Mr. Dulles which I have just read, 1should also like torefertothestate
ment by Mr. Gerig, the same speaker, in the Trusteeship Council on 12
December: we cite that in the Counter-Memorial, II, at page 28r. Mr.
President, 1 wish to emphasize that this statement was made on 12 De
cember 1947, sorne 12 days after the previous statement 1 have just read,
and during the course of the same debate in the Trusteeship Council as
to what the approach of the Council ought to be to the particwar report
which had been submitted by the Union for information purposes:
"It was said here [Mr. Gerig said] earlier this afternoon, and 1
did not hear any member abject, that while we all hope-my dele
gation as much as any delegation feels that way-that there will
be a trusteeship agreement for this territory, we do not, in the
absence of a trusteeship agreement, have supervisory functions over
this térritory. Therefore, 1 do not think we ought to imply that we
do have supervisory functions to ensure that the Union Government
discharges its duties under the present mandate, admitting that it
exist." (ll, p. z8r.)
Mr. President, in these varions statements on behalf of the United
States we fi.nd an exact replica of the general situation which we find
amongst the varions States at the time. We find uncertainty, disagree
ment, or inconsistency--call it what you will--on the point whether the
Mandate was still in existence. Here we have two representatives of the
same State, one saying that in his view South Africa no longer had any
title to administer South West Africa, because the Mandate must be con
sidered as having lapsed; the other representative saying, two months
later, that everybody was in agreement that the Mandate was in exis
tence.
But, Mr. President, the other important aspect is this, that this second
speaker proceeded from the basis that the Mandate was in existence
but as a clear and explicit view to the effect that the United Nations
had no supervisory authority in respect of the Mandate. That illustrates
the antithesis which existed at the time; it was an antithesis between
these two attitudes or views, namely that either the Mandate had lapsed, SOUTH WEST AFRICA
or that if it existed, it existed without supervisory authority ori the part
of the United Nations. There was no support whatsoever, Mt. President,
forthe attitude contended for by the Applicants, namely that the Man
date was in existence, with supervisory authority on the part of the
United Nations.
· I have now come to a stage where 1 should summarize the effects of
this total review, but before doing so, I would like to revert to the atti
tude adopted by China. The Court will recall that I looked for a passage
yesterday which I had in mind but could not find it at the time. 1t is on
record in the Counter-Memorial, II, at page 282. It is a statement that
wasmade by Mr. Liu Chieh in the Fourth Committee on 9 November 1948.
It may be as well that1 could not find it.yesterday, because on checking
it for context yesterday afternoon, 1found that in the speech as a whole,
which was made on that occasion, there are ether passages which very
cléarly indicatewhat the attitude of the Chinese delegation was at that
time. 1refer, Mr. President, to the Official Records of the Fourth Committee,
Part I, which relate to the period 2r September to 22 November 1948.
I quote from page 294 (G.A.,O.R., Third Session, 4th Committee), where
the address by the representative of China started:
"Mr. Liu Chieh expressed appreciation of the gesture which had
been made by the Union of South Africa under the administration
of Field MarshalSmuts in transmitting to the United ·Nations a re
port on South West Africa."
Mr. President, I need hardly emphasize the signifi.canceof the expres
sion "the gesture which had been made by the Union of South Africa",.
It clea~ rlvyals no contemplation on the part of the speaker that thére
had been a legal obligation to stibmit any information at ail, let alone
to report and account under a mandate.
The speaker proceeded- 1am reading from the same page:
"He refuted the South African representative's assertion that
the Trusteeship Council had excee<;ledits competence by examining
the report on South West Africa subinitted to the United Nations
by the Union Govemment, and, in tum, reporting thereoh to the
General Assembly. The Trusteeship Council in so doing, had merely
carriedout the instructions of the General Assembltothat effect, as
expressed in itsresolution of the previous year."
.Mr. President, again there is no reliance on the premise that twras~
an .obligation to report and account on the part of the Union and the
corresponding power of supervision on the part of the Trusteeship Conn
cil. There is merely a reference to the fact that the Trusteeship Council
was r~qui raeact on th~instructions of the General Assembly, and in
fact did sa. . . .
Then, 1\tr. President, at the top of tne~ tage we find thisp~ssage:
"He felt that certain of the points raised by the South African
representative required an immediate answer. Only a year ago, the
Union Government had informed the United Nations thàt it had
decided not ta proceed with the incorporation of the Territory, but
that it intended to maintain the status quo and continue to adminis
ter the Territory in the spirit of the Mandate. It also undertook to
submit reports on the Territory for the information of the United
· Nations." (Ibid., p. 295.) · ARGUMENT OF MR. DE VILLIERS
Now this address, as the Court will recall, was delivered in 1948. It
referred back to statements made the previous year (1947) by the Union
Govemment, making itperfectly clear that there was no misooderstanding
whatsoever on the part of the delegation of China as to the basis upon
which the reports were to be submitted-:-they were to be submitted "for
the information of the United Nations". And it was in this context, theo,
that the speaker proceeded to deal with the question whether there was
any obligation under the provisions of the _Charter to enter into a trus
teeship agreement. He arrived at an affirmative conclusion, and in the
course of his reasoning said {at p. 296), as follows:
"It was true that as no trusteeship agreement had been concluded
for South \Vest Africa, the United Nations could not intervene or
exercise its power of _supervisio_nin regard to that Territory. But
paragraph 2 of Article 8o imposed an obligation to conchide such
an agreement without delay.' (II, p. z82_.) .
Mr. President, it seems, therefore, summarizing the attitude of the
delegation of China, that it amounted to this: in general, that delegation
was in agreement with the proposition that outside trusteeship; there
was no power of supervision on the part of the United Nations. The
delegation contended, however, that there was an obligation-a legal
obligation-ta enter into a trusteeship agreement. And, arguing appar
ently from that premise, its attitude in the previous year (when a report
before the Trusteeship Council submitting information from the Union
Government), was apparently that, as this opportunity had been afforded
by the Union Govemment for exercising a function similar to that which
bad been exercised by the Permanent Mandates Commission, that op
portunity was therefore to be used by the Trusteeship Council; and that
for that purpose the Security Council could be viewed as exercising a
similar function to that which bad: previously been assigned to the
Permanent Mandates Commission. But, Mr. President, there was full re
cognition of the fact that there had been no agreement-nothing in the
nature of consent or acquiescence on the part of the South African Govern
ment-to a substitution· of supervisory organs for pi.lrposes of.account
ability under the Mandate. That appears very clearly from all these pas-
sages I have read. .
That seems to have been the Chinese attitude at the time, and the
attitude of the other State which identified itself with them-the Philip
pines-with whose attitude 1.dealt yesterday.
Therefore, Mr. President, we may swnmarize the attitudes taken by
the 12 States represented on the Security Council at the time as follows:
first ofail, there were at least fi.veof these States which took up the
attitude that the Mandate had lapsed on dissolution of the League. They
were: Costa Rica, France,·Iraq, Mexico and the Soviet Union. A sixth
State-the United States of America-;-stated through one of its repre
sentatives a view that the Mandate had lapsed; through another that it
bad not lapsed-that it was in existence, but without accountability.
Theo, on the question whether there was any supervisory authority
on the part of the United Nations outside trusteeship, we find that nine
States held a very clear and unqualified view on that point, to the effect
that outside a trusteeship agreement there was no such supervisory power
on the part of the United Nations. These States were: Australia, Costa
Rica, France, Iraq, Mexico, New Zealand, the Soviet Union, the United SOUTH WEST AFRICA
Kingdom and the United States of America. I have, of course, included
in this list the States which took the view without more, that the Man
date had lapsed, because from that it would follow that there could not
have been accountability under a mandate to the United Nations.
Two further States with which 1have just dealt-China and the Philip
pines-took a view which in general appeared to agree with the attitude
of these nine States, except that they took a different line as to what
the functions of the Trusteeship Council could be in respect of the partic
ular report which it had before it in 1947. The attitude appeared to be
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 similar to those which
had been performed by the Permanent Mandates Commission.
The twelfth State was Belgium, whose attitude was, on the one hand,
that by virtue of Article 8o (1) of the Charter the people of the Territory
were entitled to have the Territory supervised. That was in principle
their general attitude; but on the other band, Belgium recognized that
there had been no agreement by South Africa to have United Nations
supervisory organs substituted for those of the League. That point we
emphasized yesterday when dealing with the statements made on behalf
of Belgium.
Not in one single case, therefore, Mr. President, of these members of
the Trusteeship Council, do we find an attitude supporting, or corres
ponding with, that taken up by the Applicants in this case. Not one of
them took up the attitude that there was agreement, consent, acquies
cence, 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.
It is true that the Council did consider the Respondent's report for
the year 1946, which had been submitted voluntarily for the limited
purpose of furnishing information, but it is clear-that the Applicants are
completely wrong when they say, with reference to the Trusteeship
Council, firstly, that it was agreed that the Mandate continued in full
forceand effect, and, secondly, that it was agreed that the United Nations
was the proper supervisory authority.
Mr. President, I have dealt specially with the views expressed by the
12 members of the Trusteeship Council, in order to refute the explicit
statement advanced by my learned friend, Mr. Moore; but the same
result as I have just stated to the Court, follows from an analysis of
the attitudes adopted over the years 1947-1949 by all the Members of
the United Nations.
We have included in our Counter-Memorial, fi.rstly, references to
debates concerning the question of South West Africa, in which member
States participated over the years 1947-1949, and gave, as fully as we
could find from our investigations, ali references to debates in which this
question was raised, in which any attitude whatsoever was expressed by a
Member of the United Nations over those years. The reference is Annex
A to Book II of the Counter-Memorial (Il), pages 258-274-
Secondly, we gave extracts from statements made in such debates.
These are those from which I have read, to sorne extent, in the review 1
have just given the Court. They are contained in pages 275-286 of the
Counter-Memorial (II).
I shall not now take up the time of the Court by reading more exten- ARGUMENT OF MR. DE VILLIERS
sively from all these statements. It will suffice, Mr. President, to repeat
very briefly the conclusions which we draw in our Counter-Memorial
from these statements, and to indicate to what extent, if any, those con
clusionshave been affected by anything contended for by the Applicants
in these Oral Proceedings. The conclusions to which I shall refer are set
out in Book II of the Counter-Memorial (Il), at pages 65-71.
The first one of importance is that throughout the period 1947-1949,
the Respondent repeatedly stated its attitude, namely firstly, that it was
not obliged, and was not prepared, to enter into a trusteeship agreement;
and, secondly, that in the absence of such. an agreement, the United
Nations would have no supervisory jurisdiction in regard to South West
Africa. The Members of the United Nations could not have bcen unaware
that that was the attitude of the South African Government-it was
stated dearly, explicitly and repeatedly. In the year 1947, Mr. President,
when the statement to this effect was made early in the debate, in Septem
ber,by Mr. Lawrence, not a single State either alleged or suggested that
there was at any time an agreement, express or .implied, or any under
standing, whereby the League's supervisory powers over the Mandate
became vested in the United Nations, or whereby Respondent became
obliged to report and account to the United Nations regarding corq.pliance
with its substantive mandate obligations. Not a single State stated that
attitude during the whole of 1947. ln spite of the fact, as we point out,
thirdly,that in addition to Respondent, 40 other States participated in
the debates on South West Afnca in that year, and that at least 14 of
these States, either expressly,r by clear implication, acknowledged that,
in the absence of a trusteeship agreement, the United Nations would
have no supervisory jurisdiction in respect of South West Africa.
These 14 States were Australia, China, Colombia, Cuba, France, India,
Iraq, the Netherlands, New Zealand, Pakistan, the Philippine Republic,
the Soviet Union, the United States of America and Uruguay.
Fourthly, we point out that similar views were expressed also on
behalf of at least four other States during 1948 and 1949· These States
were Canada, Costa Rica, Greece and the United Kingdom.
Fifthly, Mr. President, we point out that it was only from the end of
1948 that certain States began to contradict in any way Respondent's
contention regarding supervisory powers, or the absence thereof, on the
part of the United Nations. These States were Belgium, Brazil, Cuba,
India and Uruguay.
Now, Belgium's attitude, as 1 have already indicated, Mr. President,
rested on Article 8o (r) of the Charter: it was siinply a broad attitude to
the effect that the people of the Territory were entitled to have inter
national supervision. On the other band, Belgium's representatives
acknowledged in their statements that there had been no agreement on
the part of South Africa to a substitution of supervisory organs.
Brazil, Mr. President, stated an attitude (we record in the Counter
Memorial, Il, at p. 285), by way of an argument very much on the lines
of the "organized international community" theory, which the Applicants
advanced at previous stages in these proceedings, but which they no
longer appear to advance as a theory which by itself leads them to their
conclusion.
The view adopted by Brazil was that, inasmuch as South West Africa
had. been placed under the mandate system of the LeaJ?Ueof Nations, it
was ·~und eer supervision of the Community of Nat10ns, namely the SOUTH WEST AFRICA
General Assembly''. This attitude, Mr. President, involved the idea that,
on the basis of this theory, there was no necessity whatsoever for alleging,
or establishing, a new consent on Respondent's part, at the time of
transition. In fact, there was, on the part of Brazil, no allegation whatso
ever that there was in the transition stage such a fresh consent or agree
ment on Respondent's part regarding a substitution ofsupervisory organs.
Cuba's attitude was not a consistent one. At first it was ta the effect
that Respondent's report could not be examined by the United Nations
because "South West Africa was neither a Trust Territory, nor a Non
Self-Governing Territory". (Ibid., p. 276.) The argument was, Mr.
President, that the Charter reco~iz ondy three categories of States or
terri tories;firstly, trust temtories, second.ly, Non-Self-Governing
Territories, and thirdly, independent States. There was, therefore, no
scope, on the basis of that attitude, for carrying on with a mandate as a
mandate, let alone any scope for carrying on withan obligation ofaccount~
ability under a mandate. That was the attitude stated for the first time
on 26 September 1947, and again in a similar statement on 8 October
1947·
Later, Mr. President, Cuba argued differently-
", .. the rights and duties of the United Nations were the same as
those of the League of Nations for bath organizations represented
the international community". (ll,p. 285.)
In other words, here we have a similar argument ta that which I have
just referred to in tlie case of Brazil-anargument based on the idea of
an organized international community, so that the original obligation
to submit ta the supervision of the League organs was now to be seen as
an obligation ta submit to organs of the United Nations.
The same implications arise as in the case of Brazil: in other words,
there was no necessity to establish new agreement or consent on the
Respondent's part in the transition stage; and, in fact, there was no
allegation whatever, on the-part of Cuba, that there was such agreement
or consent by the Respondent in the transition stage.
Next we come to lnqia. India's attitude also underwent a change. As
we indicated in the Counter-Memorial (ibid., p. i77), in 1947, India
submitted a draft resolution containing the following statement:
"Whereas the territory of South West Africa, though not self
governing, is at present outside the control and supervision of the
United Nations."
In rg48, however, India argued, in a passage which we quote in the
Counter-Memorial (ibid., p. 283), that Article Soof the Charter safeguarded
the rights of the people of South West Africa. It was a similar attitude to
that taken by Belgium, and again the attitude was a vague and broad
one, namely that the people of the Territory were entitled to have
international supervision, but there was no allegation of consent on the
part of the Respondent ta a substitution of supervisory organs. That was
a change from the attitude indicated in the draft resolution of the previous
year; but in 1950, in presenting argument to this Court in a written
statement in relation ta the Advisory Opinion which was being sought by
the United Nations, India again reverted very explicitly to its first
attitude. It stated: .
"... Article 6 ofthe Mandate and the fust portion of Article 7 of the
Mandate have become incapable of being complied with ... The ARGUMENT OF MR. DE VILLIERS
result is that the mandatory is not obliged to submit to an annual
report under Article 6 ... " (Ibid., p. 71.)
In the case of Uruguay, the view it expressed in 1947 is given in II,
p. 281, and reads: . ·
"... impossible to conceive of a man~a tontinuing, even only in·
spirit, now that the body which granted it, the League of Nations,
has ceased to exist". ·
In other words, there asclear attitude that the Mandate itself had lapsed.
In 1948, however, Mr. President, we find a change of attitude when the
representative of Uruguay relied on Article 8o of the Charter and argued
that the United Nations had taken the place of the League as the
"co-ordinating centre" of the "civilized and organized international
collectivity", with the result that it was-
"... through the organization [the United Nations] that the Union
of South Africa should fulfil its obliga_tionstowards the international
community and give an account of its administration". (Ibid.,
p. 285.)
Again, Mr. President, here is an attitude correspo~ wdthngthat of
Brazil and to the later attitude of Cuba, with the same implication that
it was not necessary to establish fresh consent, at the transition stage,
on the part of the mandatory, and no attempt, in fact, to establish or
allege that there was any such consent.
As we analysed the position· in the pleadings, particularly in the
Counter-Memorial, Mr. President, only these five States at any time in
the relevant period, 1947-1949,expres sew~s in conflict with Respon
dent's contention about supervision, but in three of the cases they were
inconsistent in their statements and allthe cases there was no allegation
of consent to a substitution on the Respondent's part, in or after the
transition stage. That is very important, because even those States which
arrivedat the result which accords with that which the Applicants are
contending for, did not do so on the basis which the Applicants now
acknowledge to be a necessary one, namely to establish such a new con
sent or agreement in or after the transition stage. This is very signifi.cant,
Mr. President, because it means that, while the Applicants contend for a
general consensus or agreement or ·understanding on that point-i.e.,
that the United Nations would have supervisory jurisdiction; the actual
position is that of ali these States which it is suggested were participants
in that general agreement or understanding, not a single one of those
which expressed its views on the situation, lent any colour of support to
that contention-not a single one of them appears to have been aware
of this suggested general understanding.
· In the light of the oral review which 1 have given, the cases of China
and the Philippines may perhaps be said to be more borderline than we
indicated before. Perhaps one may have to add these two to those five
States and say that the total list, therefore, is seven States, of which five
made inconsistent statements. But as 1contended, in truth, our classifi
cation of those two States, China and the Philippines, Mr. President,
still stands, because thcir general attitude was as we contend for-and
it was only in the manner of dealing with the specifie report of 1947 that
they took a different line from that of the other States.
In the result, as 1 say, not a single State supported the Applicants' SOUTH WEST AFRICA
present contention that there was such a consent on the Respondent's
part during or after the transition stage, and the importance of this
conclusion is self-evident.
· Now, Mr. President, may I refer to the reaction which our summary in
the pleadings, to which 1 have just referred, elicited from the Applicants.
·The first aspect thereof we find in the argument of my learned friend,
Mr. Gross. He quoted from the statement made by the United States of
America to the Court in 1950, and he then said: "there was confusion
.among the Member States of the United Nations over the years 1947 to
1949 asto Respondent's position in connection with the Map.date." He
quoted from the 1950 statement by the United States of America, to the
effect that ''a minority of the Assembly took the position that the Man
date had already expired". (P. 209, supra.)
He quoted further (ibid.}: "South Africa at the sessions of the General
Assembly in 1946-1947 by no means embraced the minority view but
firmly supported the view of the majority." · ·
From this, then, my learned friend, Mr. Gross, argued that there was
confusion and he said the following:
"... as the actual history of the period makes clear, the issue asto
which Members of the United Nations were confused and at odds
was not as between international supervision over the· mandated
territory and no supervision. The issue drawn, rather, was that
between supervision under the Mandate or supervision under the
trusteeship system. It was hesitancy and confusion, reflected in
numerous statements made and often shifting within the same
delegation-it was hesitancy and confusion as between these two
alternatives (supervision under the mandates system or supervision
under the trusteeship system)." (P. 2ro, supra.) ·
Mr. President, the review which 1 have just given, in my submission;
very clearly shows that this analysis is not true. Firstly, it is a complete
non sequitur to say that because certain States differed on the question
whether the Mandate was in force, there was therefore confusion in
regard to supervision. 1 have indicated, Mr. President, how those two
things were not related, in fact, in the minds of the States which spoke
on the subject, namely how they themselves differentiated between those
two questions. Secondly, Mr. President, to say that there was confusion
between the two alternatives of supervision under the mandates system,
and supervision under the trusteeship system is to advance a proposition
which is, in my submission, entirely inconsistent with the record and in
conflict withthe record. 1t is true that States were divided on the question
whether the Mandate was in force. Sorne of the States held that it was in
force; others held the contrary view. But, as 1 have already indicated,
an analysis of the statements made by the members of the Trusteeship
Council, shows that at least five members of the Council were of the
opinion that the Mandate had lapsed. 1 may also refer the Court to our
Rejoinder, V, pages 63-66, where we deal in more detail with the
attitude taken up by certain States on the question whether the Mandate
had lapsed or not.
It is conceded from our side, Mr. President, that the majority held the
view that the Mandate was in force, and it may also be conceded, as 1
indicated before, that the Respondent, until 1948, acting through its
government of the time, shared the views of the majority. But that does ARGUMENT OF MR. DE VILLIERS 491
not mean that there was any confusion at ali as to whether the United
Nations had supervisory powers regarding the Mandate.
Those Members who held the view that the Mandate had lapsed could,
of course, not have been of the opinion that there was any supervisory
authority-any obligation of accountability under the Mandate.
On the other band, those Members who thought that the Mandate was
in force, need not have been of opinion that the powers of supervision
under the Mandate had passed to the United Nations; and I have
demonstrated, Mr. President, that, in fact, with very few exceptions, they
did not think so.
A very striking example to prove this point is the self-same one the
Applicants seek to use to the opposite end, and that is the case of the
representatives of the United States. 1 dealt this moming with what they
actually said in that regard. The Applicants say, with apparent concern:
"The Respondent, indeed, goes so far asto cali into question the
views of the United States itself on this matter, notwithstanding
clear expression of views on the part of the United States representa
tives to the United Nations, including Mr. Benjamin Gerig, the
representative of the United States on the Trusteeship Council in
1947, and himself a recognized authority on mandate and trusteeship
affairs." (P. 210, supra.)
The Applicants then quote Mr. Gerig as having stated at the 15th Meeting
of the Trusteeship Council in 1947 as follows: "1 am among those who
always have believed that the Mandate does continue in force, but there
are others who do not take that view." (Ibid.)
But, Mr. President we find that this very same "recognized authority
on mandate and trusteeship affairs", Mr. Gerig, stated at the same meet
ing of the Council what I read to the Court earlier this moming, namely:
"It was said here earlier this afternoon, and· I did not hear any
member abject, that while we ali hope-my delegation as muchas
any delegation feels that way-that there will be a trusteeship
agreement for this territory, we do not, in the absence of a trustee
ship agreement, have supervisory functions over this territory.
Therefore, 1 do not think we ought to imply that we do have super
visory functions ... " (II, p. 28r.)
The attitude expressed by him is so explicitly clear that one can hardly
understand how Applicants can still argue, that Mr. Gerig's attitude
that the Mandate was still in existence, implied a conception that there
was also supervisory power on the part of the United Nations. In fact,
Mr. President, Mr. Gerig himself shows that that suggestion is entirely
unfounded.
Accordingly, Mr. President, there is nothing strange in the position
which the Applicants state in the verbatim record:
"... of the list of States cited in the United States statement as
holding the view that the Mandate responsibilities continued in
existence, six ofthe same States are listed by Respondent as holding
the view that the Respondent bad not remained under a duty to
submit to international supervision". (Pp. zog-zro, supra.)
There is nothing strange in that position, Mr. President. We list those
six States as holding the view that Respondent did not remain under492 . . SOUTH WEST AFRICA
a duty to submit to international supervision, not because of any fantasy
on our part, but simply because those six States had, in fact, expressed
their opinions very clearly on that point. And it is hardly necessary to
say that this fact in itself disproves the Applicants' statement to the
effect that in the years 1947 to 1949 there was confusion as between
what they caU the two alternatives of supervision under the mandates
system and supervision under the trusteeship system.
What are the implications of this statement-this argument advanced
by the Applicants-this analysis which they give to. the events of the
years 1947 to 1949? The implication is, Mr. President, that all, or atleast
the preponderant number of the States, Members of the United Nations,
were agreed on the .fad that· there· was intef!lational accountability:
that there was a power of.supervision on the part of the United Nations
but that the issue lay between the question whether that power existed
under the mandates system or under the trusteeship system. That is the
implication of this argiunent, but the analysis which I gave to the Court
this morning, proves how eil.tirely incorréct this statement is. .
Take the position in the·.Trusteeship Council alone,, where we find
that nine out of the 12 members were definitely of the opinion that
outside trusteeship the· United Natioris would have no supervisory
power, and that two others appearèd to agree with that opinion, subject
to the qualification which I have mentioned. ·
· Further, Mr. President, the analysis in the Counter-Memorial of the
attitudes of all members who took part in the debates, also shows how
completely wrong this statement of the Applicants is. It shows that
out of a total membership of more than so-it was in fact 57 in 1947-
only five indicated the view that the United Nations had supervisory
powers in respect of South West Africa outside of trusteeship, and that
of those, three were not even consistent. ·
Mr. President, my Iearned friend, Mr. Gross, did not attempt to
disprove this analysis to which I have just referred. Instead, as I have
indicated, he advanced an argument on alleged confusion between these
concepts but, from what I have just said to the Court, I submit that it
will be perfectly clear that there is no substance in that argument at all.
My leamed friend, Mr. Moore, also dealt with this subject-matter, but
he reacted in a·different way. He did not rely on confusion, but attempted
to prove that it was agreed in the Tnisteeship Council that "the United
Nations was the proper supervisory body", and with that object in view
he cited extracts from three speeches in the Council, which we find in the
verbatim record at page r6o, supra. .
I have already demonstrated, Mr. President, that this statement is
wholly unsupported and, indeed, in direct confiict with the record of
proceedings in the Council. lt was a reference to statements of three
members, isolated from their context, with no reference to the attitude
of the other members of the Council, and, therefore, gives a completely
wrong picture of what the general attitude in that Council was.
My learned friend, Mr. Moore, also made an attempt in another way
to controvert our argument regarding the practice of States in the years
1947 to 1949· It will be recalled, Mr. President, that in our Counter
Memorial we also dealt on this point with views expressed by Members
of the United Nations over that period regarding mandates other than
the Mandate of South West Africa. I refer to pages 67 to 70 of the
Counter-Memorial (ll),in which we cited passages from statements and ARGUMENT OF MR. DE VILLIERS 493
reports concerning Western Samoa, the former Japanese Mandated
Islands, and the Mandate for Palestine.
In regard to Western Samoa there is a very pertinent statement .by
New Zealand, the former mandatory power. Although I do not intend
to read all these passages to which I have referred, I should Iike to read
this one by New Zealand because it is a very pertinent one, and because
of the important role which New Zealand played in this regard. New
Zeahind apparently had difficulty in discussions in the Fourth Committee
on the question of the terms of its proposed trusteeship agreement for
Western Samoa, and strong pressure was exerted on it to amend the
draft in sorne respects. lts representative then stated on 22 November
1946:
"New Zealand, although it would be most co-operative, could not
be forced to amend its draft agreement. The n:isult of disapproval
of the draft agreement by the General Assembly would be that
New Zealand would carry on, as in the past, its sacred trust to lead
the-people of Samoa in their orderly progress towards self-govern
ment. In this eventualt"ty,New Zealand would have to ca"y on witJwut
the privilege of the supervision by the United Nations whicitdesired."
(Italics added.) .
1 need hardly stress the signifi.cance of this statement, Mr. President,
coming as carly as 22 November 1946 from New Zealand, one of the
mandatory powers which had made statements at the final session of
the League Assembly-coming, as I .say, a barc seven months after
those statements were made, and making it perfectly clear that the
interpretation which 1, in any event, submitted was to be given to this
statement made by New Zealand on that occasion, was, in (act, the
interpretation intended by the New Zealand representative-namely
that there was no question of submitting to supervisory authority on the
part of the United Nations, outside trusteeship, after the dissolution of
the League.
·At page 68 (II) we deal with statemellts made by the representative
of Russia, Mr. Gromyko, in the Security Council, on questions pertaining
to the Japanese Mandated Islands, and particularly the question whether
the Security Council was competent to decide whether Japan had
violatcd its obligations under the mandate or not. His firm attitude was
that there was no such power on the part ofthe Security Council, because
there was no continuity, either legal or otherwise, between the Ç"landatory
system of the League of Nations and the trusteeship system laid down
in the United Nations Charter.
And then there is the case of the Mandate for Palestine. We give, fi.ri;t,
at pages 68 to 70 the extracts from the unanimous report of the eleven
nation Committee, and then at page 70 a statement of a United States
representative in March 1948, when he said: .
"The United Nations does not automatically faU heir to the
responsibilities either of the League of Nations or of the Mandatory
Power in respect of the Palestine Mandate. The record seems to us
entirely clearthat the United Nations did not take over the League of
Nations Mandate system." (Italics added.)
Reverting to the report of the Special· Committee on Palestine, we
find the relevant extracts set out at pages 68-69 of Il. [ am not going
to read them extensively now. 1 have referred to relevant portions SOUTH WEST AFRICA
494
before and l shall only emphasize certain of the very pertinent parts of
these extracts.
First, I read the extract at page 68 where it is said that after the
dissolution of the League-
"The mandatory Power, in the absence of the League and its
Permanent Mandates Commission, bad no international authority to
which it might submit reports and generally account for the exercise of
its responsibilities in accordance with the terms of the Mandate."
(Italics added.)
1 read a further extract at page 69 of the Counter·Memorial, II:
"But the League of Nations and the Mandates Commission have
been dissolved, and there is now no means of discharging jully the
international obligation with regard to a mandated territory other than
by placing the terri/ory under the International Trusteeship System of
the United Nations."
Here is the most clear contemplation, Mr. President, of no supervisory
power outside the international trusteeship system, that is, as from after
dissolution of the League.
I read again, a further extract a few lines further:
"The most the mandatory could now do, therefore, in the event of
the continuation of the Mandate, would beta carryoutitsadministration,
in the spirit of the Mandate, without being able to discharge its inter·
national obligations in accordance with the intent of the mandates
system. At the time of the terrnination 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 princi
ples of the Mandate."(II, p. 69.)
Mr. President, I submit that on the basis of those citations there can
be no question whatsoever as to what the general contemplation was
in regard to Palestine, but my learned friend, Mr. Moore, in referring
to this very same report of the United Nations Special Committee, argued
as follows:
"... the general understanding in 1947 was that not only was the
Mandate for Palestine still in effect, but that the United Nations
had the authority to supervise the administration and termination
of that Mandate". (P. r6r, supra.)
Mr. President. on analysing this contention, with reference to the
record in regard to Palestine, one finds again the old, old story. One
finds that the passages cited by the Applicants do support the conclusion
that the Mandate was considered to be in force, despite the dissolution
of the League, but one finds also that the second proposition is entirely
without foundation, namely that the general understanding in 1947 was
that the United Nations had authority to supervise the administration
and termination of that Mandate. Aga.inthere is the old confusion of the
two things-references are quoted supporting the first statement but in
no wa.y supporting the second and, indeed, very often completely in
conflict with that second contention. ·
Mr. President, as regards the supervisory powers in respect of Pales
tine, which the United Nations eventually obtained, it is true that
shortly before Palestine was, in fact, divided and became independent ARGU~ENT OF MR. DE VILLIERS
495
on that basis, there was a 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 specifie arrangement, agreed to
by the United Kingdom-and it was quite clcarly the contemplation
of aU concerned that that specifie arrangement was necessary in ·order
to bring about that supervision. There was no contemplation whatsoever
of a previously existing supervisory power on the part of the United
Nations.
We can state the history of the events, briefiy, as follows. On 2 April
1947 the United Kingdom addressed a letter to the Acting Secretary
General of the United Nations requesting that the question of Palestine
be placed on the agenda of the next regular session of the General
Assembly, and stating that the United Kingdom Government would
submit an account of its administration of the Palestine Mandate to the
General Assembly and would ask the Assembly to make recommenda
tions, under Article ro of the Charter, concerning the future government
of Palestine.That was the gist of the request, namely that there was to
be a recommendation by the General Assembly under Article IO of the
Charter concerning the future government of Palestine. We ·find the
reference to what 1 have said in the United Nations Special Committee on
Palestine's Report to the General Assembly, Volume 1, page I, and
Volume Il, page L
At the outset, Mr. President, the United Kingdom made it clear that
it would not necessarily accept any United Nations' recommendation.
That we find in the same report, Volume I, at pages I-2.
The reason for approaching the United Nations and the attitude of
the United Kingdom tmvards any solution that might be proposed by
the United Nations were explained as follows, by a British spokesman,
in a passage cited in the report, Volwne I, page 2:
"We [the United Kingdom] have tried for years to solve the problem
of Palestine. Having failed so far, we now bring it to the United
Nations, in the hope that it can succeed where we have not. If the
United Nations can find a just solution which will be accepted by
both parties, it could hardly be expecte!=lthat we should not welcome
such a solution. Ali we say ... is that 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.''
(C.A., O.R., Second Session, Suppl. II, Vol. I, p.2.)
It is apparent, therefore, Mr. President, that the United Kingdom
did not place the matter before the United Nations in any spirit of
recognition of a legalduty towards that organization, particularly a duty
of accountability to the United Nations as a supervisory power. This
was realized very well by the Special Committce on Palestine, as appears
clearly from the passages which we quote in the Counter-Memorial and
to which I have already referred this morning.
Nevertheless, Mr. President, the Applicants allege as follows:
" ... it seems obvious that the view of the United Nations Special
Committee on Palestine was:
(r) that the Mandate for Palestine was in effect notwithstanding
the dissolution of the League of Nations;
(2) thaf the United Nations had the authority to terminate the
Mandate; and SOUTH WEST AFRICA
(3) that the United Nations had the authority to supervise the
administration of Palestine prior to the granting of independence
to that territory."(P. 162, supra.)
Mr. President, in our submission, the second of these propositions
"that the United Nations had the authority to terminate the Mandate"
is shown by the record to be without foundation.
\Ve submit, in regard to the third one, namely that the United Nations
had the authority to supervise the administration of Palestine, prior to
the granting of independence, that that proposition is very ingeniously
worded, but that it does not in the least support the Applkants' conten
tion regarding the issue now before the Court.
Let me deal fi.rst with the second proposition that the United Nations
h?-dauthority to terminate the Mandate. ·
Mr. President, 1 was dealing with the Applicants' argument, advanced
by my learned friend, Mr. Moore, that it seems obvious that the view
of the United Nations Special Committee on Palestine was, in one
respect, that the United Nations had the authority to terminate the
Mandate. 1 submit in that regard, Mr. President, that, as we have
shown in what 1 have just submitted to the Court-the extracts from
the whole submission of the problem to the United Nations, and the way
in which it was handled-that the function of the Special Committee
was to propose a solution for the Palestine problem, and that that solution
as proposed might or might not be accepted by the United Kingdom
Government. The.Committee's recommendations regarding .the termina
tion of the Mandate could not have been brought into effect without the
consent of the United Kingdom-everybody seemed clear on that point,
and, in fact, the eventual resolution of the General Assembly, to which I
will refer later, took the form of recommendations to the United Kingdom
and then to other Members of the United Nations.
The true position, therefore, seems to be that everybody accepted the
fact that the future of Palestine fell to be resolved by agreement between
the United Kingdom and the United Nations, an attitude which is, of
course, entirely consistent with the terms of the resolution of the League
Assembly on 18 April 1946 which contemplated further arrangements
that might be agreed upon between the respective mandatory powers
and the United Nations.
The Applicants also contend that it seems obvious that the view of
this Committee was that the United Nations had the authority to
supervise the administration of Palestine prior to the granting of in
dependence to that territory. On that point, Mr. President, it seems
quite clear, in our submission, that neither the Special Committee on
Palestine nor the United Kingdom Government considered that any
powers in this regard had passed to the United Nations at any stage prior
to the Committee's deliberations. The recommendations of the Committee
which involved United Nations supervision prior to the independence
of Palestine, constituted part of their total suggested solution of the
Palestine question and, as 1 have pointed out, that would have required
the consent of the United Kingdom. Indeed, it is clear from the very
tenor of the recommendations and from the terminology employed in
them that the Committee contemplated the establishment of a new
situation, and not the continuation of a pre-existing one. This can best
be illustrated by referring to the scheme which was set out in the fust
four of the unanimous recommendations of the Committee. ARGUMENT OF MR. DE VILLIERS
497
The first of these unanimous recommendations was that "The .Mandate
for Palestine shallbe terminated at the earliest practicable date"-that
we find in the Corrunittee's Report, Volume I, page 42 (C.A., O.R., Second
Session, Suppl. n). I may say, in passing, that this was the recommenda
tion in respect of which the Committee expressed its doubts about the
question whether the Mandate was in any event still possible of exe
cution-the remarks which we quote at page 69 of the Counter-Me
morial (II).
The second recommendation was: "Independence shall be granted in
Palestine at the earliest practicable date."
The third one read:
"There shall be a transitional period preceding the grant of
independence in Palestine which shall be as short as possible,
consistent with the achievement of the preparations and conditions
essentialto independence."
Fourthly, there was the recommendation that-
"During the transitional period the authority entrusted with the
task of administering Palestine and preparing it for independence
shall be responsible to the United Nations." (Ibid., SupplII, Vol. 1,
p. 43-)
These second, third and fourth recommendat i o ind at page 41 of
Volume 1 of the Report.
Mr. President, as 1 shaH indicate presently,the Committee as a whole
dearly did .not contemplate that the interim administration would
necessarily vest in the Mandatory Power; 1 say the Comm.ittee as a
whole because their recommendations diverged in that respect. The
interim arrangements involved the creation of <tdministrative machinery
which was to be, or which might be, something different from that
pertaining under the Mandate. Indeed, Mr. President, the Mandate would,
in tcrms of the Comrnittee's recommendations, have been terminated
prior to the inception of the transitional period, and the United Nations
supervision in that transitional period could, therefore, not derive from
the Mandate-not in the contemplation of the Committee. Supervision
by the United Nations would, as part of the interim arrangements, also
require to be specially created, and that the Corrunittee recognized this
seems fà.irly clear from its corrunent to the following effect-1 quote
from the Report; Volume 1, at page 44:
."Certain obstaCles which may well confront the authority en
trusted with the administration during the transitional period make
it desirablehat a close link be established with the United Nations."
(C.A., O.R., Second Sess., Suppl.II, Vol. I, p.44.)
We subrnit that the word "established" is clearly inconsistent with a
view that links were already in existence. In this regard, Mr. President,
a misleading impression may possibly be created by a passage in the
Applicants' oral statement in the verbatim record at page 162, supra,
which reads as follows:
"It was further recommended by the Special Committee that dur
ing the transitional period prior to the gran ting of full independence
to the territory of Palestine, 'the present Mandatory Power' shaH
'carryon·the administration of the terri tory of Palestine under the
auspices of the United Nations .. .'." SOUTH WEST AFRICA
Mr. President, the recommendation in question was supported, not by aU
members of the Committee, but by seven members, and one has to read
the whole of the recommendation in order to see it in perspective. We
get the reference in the Report at page 47 of Volume I-I read an extract
from page 48:
"During the transitional period, the present mandatory Power
shall:
(a) Carry on the administration of the terri tory of Palestine
under the auspices of the United Nations and on such conditions
and under such supervision as may be agreed upon between the
United Kingdom and the United Nations, and if so desired, with the
assistance of one or more Members of the United Nations." (Ibid.,
p.48.)
Mr. President, the suggestion of a continuation of the Mandate with a
substitution of the United Nations for the League is, therefore, com
pletely negatived by the requirement of agreement, as set out in this
recommendation. Although this recommendation of these particular
members envisaged that the United Kingdom would remain in control of
the administration during the transition period, the supervision which
it recommended was to be such as might be agreed upon between the
United Kingdom and the United Nations. Three members of the Commit
tee recommended differently: that we find in the Report, Volume 1,
page sg-the fact that they were three in the minority-and their actual
recommendation, reading as follows, is at page 6o:
"\Vith regard to the transitional period, respon~ fr adi lity'
ministering Palestine and preparing it for independence under the
conditions herein prescribed shall be entrusted to such authority as
may be decided upon by the General Assembly." ( G.A.,0.R., Second
Sess., Suppl.II,Vol. 1, p. 6o.)
In the ultimate result, Mr. President, as the Court would know, the
majority recommendation on this point was not accepted by the United
Nations. There was what was called a Plan of Partition with Economie
Union, which was annexed to the United Nations resolution r8r (Il) of
29 November 1947, and which was recommended for adoption by member
States. In this Plan it was proposed that interim administration should
be placed in the bands of a United Nations Commission. We find that in
Part r Bof the Plan, on page 133 of the resolutions of the second session
of the United Nations. We find, further, in the same source (Part r B)
that this Commission would progressively take over the administration
of the Territory as the armed forces of the former Mandatory were with
drawn.
Now, !lfr. President, the Commission was, in turn, required to hand
over its powers progressivelv to the Provisional Councils of Government
to be established by it in each of the two new States. That is also men
tioned in Part I B of the Plan, at pages IJJ-I34 of the work to which 1
have referred.
The Applicants referto the following provision in this Plan (verbatim
record at p. r63, supra): "The manda tory power shall not take any
action to prevent, obstruct or delay the implementation by the Commis
sion of the measures recommended by the General Assembly." The Appli
cants proceed to say, on the same page of that record, that this "makes
clear the understanding of the General Assembly that the United Nations ARGUMENT OF MR. DE VILLIERS 499
had extensive powers of supervision over the administration of the
Mandated Territory of Palestine".
Mr. President, in my submission one could hardly imagine a more
flagrantnon sequitur. The powers of the United Nations.Commission, and
its relationship with the Mandatory, were matters which were to be
brought about in pursuance of the Plan, and that Plan could be adopted
and given legal effect to only with the consent of the Mandatory. How it
can, therefore, be said to involve acknowledgment of prior supervisory
power by the United Nations, 1 do not understand. It is the Plan that
provides that the mandatory power shall not prevent or obstruct the
1mplementation of the measures by the Commission, and it is only upon
acceptance of that Plan-by the agreement on the part of the Manda~
tory-that that provision is to come into effect.
The whole of resolution r8r (11) of 29 November 1947, to which the
Plan is attached, makes abundantly clear the need for consent thereto
by the former mandatory power. The resolution commences with the
following paragraph:
"The General Assembly,
Having met in special session at the request of the mandatory
Power to constitute and instruct a special committee to prepare for
the consideration of the question of the future government of
Palestine at the second regular session;"
That is the ftrst paragraph of the preamble. Its fust operative paragraph,
read as follows, Mr. President- .
"Recommends to the United Kingdom, as the mandatory Power
for Palestine, and to aU other Members of the United Nations the
adoption and implementation, with regard to the future govemment
of Palestine, ofthe Plan of Partition with Economie Union set out
below." (C.A., O.R., Second Sess., Resolutions, res. r8r (Il), p. 131.)
"Recommends to the United Kîngdom" is the first operative part of
the first operative paragraph.
Mr. President, there is no substance, in our submission, in this sugges
tion that the history of this Plan in regard to Palestine shows any
contemplation, on the part of the Committee or on the part of the United
Kingdom, of any supervisory power of the United Nations prior to the
coming into effect of these special provisions which were to be arrived at
bv special agreement.
"1 have referred to the statement made by the representative of the
United States in the Security Council in rg48, to the effect that the
United Nations did not take over the League of Nations mandates
system, and, therefore, the responsibilities either of the League of Nations
or of the mandatory power in respect of the Palestine Mandate. 1 have
also mentioned, Mr. President, the fact that no reports were, in fact,
submitted by the United Kingdom to the United Nations in respect of
its administration ofthat territory, although the authority of the United
Kingdom over Palestine continued until May 1948-in other words,
for more than two years after the dissolution of the League.
It is accordingly clear, Mr. President, that although the United
Nations, in Applicants' words, ·"felt itself competent to supervise the
administration of Palestine prior to the granting of independence to that
terri tory", the authority in fact exercised by it was by special arrange
ment, and not by virtue of any general power of supervision which had500 SOUTH WEST AFRICA
passed from the League to the United Nations, or which had come about
by substitution of the United Nations for the League as superYisory
organ in respect of mandates. .
I can now, Mr. President, proceed to consider Mr. Moore's attempt to
meet our argument advanced in the Counter-Memorial, Il, at page 141,
that between the years 1947-1949· 25 Members of the United Nations, in
participating in United Nations debates, maintained quite clearly that,
outside trusteeship, mandatory powers had no obligation to account for
their administration of the said territories to the United Nations.
Mr. Moore attempted to meet this argument by dealing with the'actual
attitudes taken by certain of the States concerned. He did not content
himself with a general submission of confusion. He said that the names of
six nations included in· Respondent's list should be deleted from it,
namely Czechoslovakia, Guatemala, Iran, Pem, Sweden and Yugoslavia.
The reason why he said that they should be deleted is that they were
added to Respondent's list merely as signatories to the report of the
United Nations Special Committee on Palestine. He said in this regard,
in the verbatim report at page r65, supra,
"... the Palestine report shows that the United Nations not on!y
considered the Mandate for Palestine to be in full force and effect
at that time, but also recommended that the United Nations exercise
comprehensive supervisory authority over the administration of
that mandate prior toits termination'! ..
The fallacy in this contention, Mr. President, is, of course, patent.
The fact that the Special Committee on Palestine recommended that
supervisory powers be exercised by virtue of special arrangements to be
concluded with the United Kingdom, does not do away with the fact
that.the States in question were·cleariy of opinion, as they expressed in
the report of the Committee, that· the supervisory powers of the League
over mandates did not pass to the United Nations, and that the United
Nations would have no supervisory powers except by special agreement.
such as, for instance, a trusteeship agreement, or. an agreement of the
nature that was being reconunended in that report regarding Palestine.
Mr. President, the argument adduced why these signatories to the
report of the Special Committee on Palestine should be deleted from the
list of our 25 States, which clearly intimated a concept of that kind, is,
therefore, unjustified. The passages inthe report with which theyidentified
themselves are clear and completely unambiguous on this question, and
the mere fact that they then went ahead and joined in recommendations
for a special provision, providing for supervision, does not support my
learned friend's argument, it militates against it.
My learned friend, Mr. Moore, argues further that three other States
-Cuba, Jndia and Uruguay-should be deleted from the Respondent's
list.That contention we find in the verbatim record at page r65, supra.
We have already explained, Mr. President, that the attitudes adopted
by Cuba, by lndia and by Uruguay were not consistent, that at one stage
they did adopt the attitudes which would include them on our list of
25 States which expressed that opinion; then again on another occasion
they expressed other views. That they did, on the occasions to which we
refer, express the views which we attribute to them, is not contested in
any way by the Applicants and this stands very clearly on record.
My learned friend, Mr. Moore, says further that the United States, in ARGUME="T OF MR. DE VILLIERS sor
its written statement before this Court in 1950, made clear its viewpoint
that international accountability had survived: that we find in the verba
tim record at page 165, supra. For that reason it is contended that the
United States, too, is to be taken out of the list 25 States.
Mr. President, 1need hard!y repeat what 1 stated before, viz., that the
United States, over. the relevant period 1947 to 1949, before this Court
was called upon to give its opinion, clearly expressed the opposite view
to that contended for by my learned friend, namely that the United
Nations bad no supervisory powers in respect of the Mandate outside
trusteeship. 1 referred more than once this morning to Mr. Gerig's
statement in 1947: 1 need not do so again. .
Why the United States contended otherwise before this Court in rgso
I suppose the United States alone would know. lts argument then, 1may
point out, with respect, was not founded on, as the Applicants called it,
a viewpoint that international accountability· had survived. It was
rather, Mr. President, withthe greatest respect, pure, special pleading, of
the very same kinâ that we find in the arguments of the Applicants now
being addressed to the Court. It was an ex post factoeffort to achieve a
desired result by taking together various blts and pieces-some out of
context, sorne of it wiongly interpreted-and then building on that the
conclusion which it was desired to achieve. This is the interpretation
which one must put on the argument presented by the United States in
1950, if one reads it fair!y, with reference to the full analysis of the record
and of the facts which are now before the Court.
The conclusion stated by ·the United States in 1950 in its written
pleading before the Court makes this perfectly clear.
"It is conéluded, on thè basis of Article So of the Charter, on the
basis of General Assembly resolution XlV-I (1) of 12 February 1946,
on the basis of the Union's ci:mduct in pledging itself to submit
rep.orts and in reporting, and on the basis of the Assembly's subse
quent action, that the United Nations has assumed the exercise of
the League of Nations function in regard to reporting on the man~
dated Territory of South West Africa." (l.C.J. Pleadings I950:
p. III.}
We see, Mr. President, ali these things added together on the basis of
Article So. In that regard the attitude expressed on behalf of the United
States of America in this argument was as follows:
"Thus it would seem, in view of the importance of reporting under
the mandates system, that this function is preserved by Article So
of the Charter-'the conservatory clause'." (/.C.]. Pleadings I950,
pp. 107-108.)
This was one factor relied on : another factor relied on was the General
Assembly resolution XIV of 12 February 1946. That resolution, the
Court will recall, I dealt with. It provided for the assumption of various
powers and functions of the League of Nations by the United Nations,
containing differing provisions for different types of funetions. Apparently
this was merely a general reference to show a contemplation that there
might be an assumption of functions, but on the basis, of course, that
the necessary arrangements were to be made as there contemplated.
And then we fi.ndthat the United States submitted that there were
apparently such special arrangements, because the next factor it relied502 SOUTH WEST AFRICA
upon, was the Union's conduct in pledging itself to submit reports and in
reporting.
1\fr. President, I have addressed a full argument to the Court on the
facts relating to the Union's conduct. 1 need not repeat that argument.
I submit that if one reads what the United States submitted in 1950, in
regard to that sphere of the case, one has to conclude that the presenta
tion was incomplete-that it wrongly assessed varions elements in the
picture, and that it carne to a wrong conclusion. It was, therefore, not a
matter of a ready-made view of the kind which we had earlier, of the kind
which we had from Mr. Gerig in the debates, where a clear, factual con
templation was expressed to the effect that there had been no agreement
-no consent to a substitution of supervisory organs-and that there was
no supervisory power on the part of the United Nations outside of the
trusteeship system.
The last part of the United States conclusion refers to the basis of the
Assembly's subsequent action. We have already referred to sorne of those
resolutions: 1 shall deal with certain of the others in the rest of my
argument and point out that they do not in any way support the conten
tion.
Then, Mr. President, my learned friend, Mr. Moore, contended that
China and the Philippine Republic should also come off the list, because,
it was submitted, they had made statements reflecting their view that
the United Nations had supervisory authority over the Mandate: that
we find in the argument in the verbatim record at page 165, supra.
1 have already shown this morning that it is at least questionable
whether they ever intimated that they considered that the United
Nations had such supervisory authority in general, outside of trusteeship.
1 submitted that their general view was to the contrai-y but that they
made a special exception as regards the particular report of 1947. But
even if sorne of their statements can be construed otherwise than as 1
have now submitted, they also on other occasions expressed themselves
decidedly in favour of the contention we are advancing, and in favour of
the proposition under which we grouped them with the others in the
total of 25.
So, Mr. President, in none of the cases referred toby my learned friend,
Mr. Moore, was any sound reason adduced by him why any of those
States should be taken off the list. ,
But let us assume that we take away what might be called the border
Huecases, those about which there may be sorne argument-those which
contradicted themselves in the debates prior to the 1950 Opinion. We
find that only five are affected-Cuba, India, Uruguay, China and the
Philippines. That, Mr. President, stillleaves 20-and perhaps one should
also include Mexico, on the basis of the analysis1 gave the Court yester
day, Mexico not having been included in our 25 before. lt would still
leave us with, say,20or 21 States, including ail the ex-mandatory powers,
except Belgium, as well as the United States and the Soviet Union-two
of the leading founder Members of the United Nations. It would include
also nine of the 12 members of the Trusteeship Council special!y concerned
with this problem.
Even if, 1\frPresident, I were to give to the Applicants-as I do not
have to do, as there is no reason why I should-the United States, and
the six States of which they said that they merely signed the Palestine
report and for that reason should not be included in my list of 25, that ARGUME:'>ITOF ~Œ. DE VILLIERS
would still leave IJ-or 14 if we count Mexico-r3 States whlch are
completely untouched by any argument which the Applicants have
attempted to adduce on this point. And those 13 would still include ali
the ex-mandatories, except Belgium.
Mr. President, even to this extent to which the Applicants want to
take their process of deleting States from my list of 25 on that optimum
basisto which they can take their argument-how can they contend that
there was a general understanding, including the mandatories in general
and the Respondent in particular, to the effect that the United Nations
would have supervisory powers-a general understanding which they
would have to establish as a matter of law in arder to lay a basis for their
general submission on thls point.
The attempt which was made to detract from this analysis which we
have put before the Court, has, therefore, really served to emphasize the
unassailability of the argument. We can argue about a few borderline
cases-argue whether the number should be 25 or 26 or 21-but there
cannat be an argument to reduce it substantially below that. Even on
the suggestions made-unfounded suggestions-of reducing the number
still further, we still find included in the list this hard core of the very
States whose obligations were, in essence, those of accountability-the
States whlch would have to show their agreement, by conduct, to a
substitution of supervisory organs and to supervision by a new super
visory organ. Not a single one of the views expressed by those States
during those years could in any way be assailed by the argument which
has been adduced.
The Applicants conclude their argument, Mr. President, on this aspect,
by saying: · .
"The most decisive fact remains, Mr. President, that while there
was disagreement among severa! Members of the United Nations
with regard to the existence of the Mandate and the obligations of
international accountability, the view of the United Nations as a
whole, expressed through its resolutions on the subject, demonstrated
its understanding that the Mandate remained in full force and effect,
and that the United Nations had supervisory authority over the
Territory. This is reinforced by the United Nations treatrnP.nt of the
Palestine Mandate." (Pp. 165-166, supra.)
So here there is reliance placed, Mr. President, on the view of the United
Nations, as a whole, expressed through its resolutions on the subject.
The contention, of course, carries an assumption of a factual nature as to
what that view was. 1 shall deal with that assumption in a moment and
show that it is an entirely fallacious and unsound one. · ·
Before doing that 1 should first Iike to examine this proposition as a
matter of law. Let us assume for the moment that the factual assumption
were true and that we were dealing with a concept of a view of the
United Nations, as a whole, expressed through its resolutions-in other
words, a view exprcssed by a majority-ordinary or two-thirds, or
whatever the required majority might be-that is being relied upon.
How, 1 ask, Mr. President, could the approach to the matter on that
basis assist the Applicants when it is necessary for them to address their
argument to a question of international obligation on the part of the
Mandatory Power-ta address themselves to the question whether there
was an agreement, or consent, on the part of the Mandatory Power to the SOUTH WEST AFRICA
ob11gation which 1t is sought to be imposed upon it? How cou1d, as a
matter of law, the majority decisions of anybody, or any organ, have any
relevance on a subject of that kind? .
But, Mr. President, the matter does not rest there. The factual premise
asto the view the United Nations took as a whole and which it expressed
through its resolutions, is a totally wrong one. That will be seen if we
look at the effect of and the surrounding circumstances pertaining to the
particular resolutions relied upon by the Applicants in support of this
contention.
The resolutions were the following: GeneralAssembly resolution.65 (!)
of 14 December 1946; General Assembly resolution 141 (II) of r Novem
ber 1947; General Assembly resolution 227 (III) of 26 November 1948;
and General Assembly resolution 337 (IV) of 6 December 1949. The fact
that these resolutions are the ones relied upon appears, Mr. President,
from the verbatim record at page r65, supra, where the Applicants
refer to these resolutions and then say:
"The last resolution confirmed the first three; the 1946 resolution
'affirmed' the competence of the Assembly, and the 1947 and 1948
resolutions 'exerdsed' thiscompetence." ·
So the first resolution of 1946, number 65 (I), is said to have "affirmed"
the competence, and the others to have "exercised" this competence.
Now, Mr. President, 1 have already dealt with resolution 65 (1).
1t was the one adopted by the Assembly in response to the proposai
regarding incorporation submitted by South Africa in 1946. We have
alre~d indicated, Mr. President, that this resolution was concerned
purely with the question of modification of the status of South West
Africa. It had nothing whatever to do with the question of supervision
of administration in that Territory. We have also shown, Mr. President,
how the Applicants seek to mis-apply, in this regard, expressions which
were used by the Court in rgso with regard to modification of status of
the Territory and apply them to the question of exercise of supervisory
jurisdiction, so 1 need say no more about that resolution. 1 have dealt
with it fully. There is nothing whatsoever in the resolution itself which
indicates any view in regard to the concept of supervisory power.
It becomes necessary to deal next with the second resolution relied
upon by the Applicants, namely 141 (Il) of 1 November 1947. It will
be recalled, Mr. President, that the General Assembly in this resolution
urged the Government of the Union of South Africa ~o propose a trustee
ship agreement for South \Vest Africa and, at the same time, conferred
authority on the Trusteeship Council, in the following terms:
". . . the Trusteeship Council in the meantime to examine the
report on South \Vest Africa recently submitted by the Government
of the Union of South Africa and to submit its observations thereon
to the General Assembly". (G.A., O.R., Second Sess., Resolutions,
resolution 141 (11). r November 1947, p. 48.)
If one looks at its wording, and its context, this reference, Mr. President,
is, in our submission, a perfectly neutra! one as far as present contentions
are concerned. It does not by its wording signify that the Trusteeship
Council was to exercise a function of supervision. It merely says that
the Council was to examine the report and submit its observations
thereon to the General Assembly. There is certainly no express-no
explicit contemplation, of a supervisory power in that regard. The ques- ARGUMENT OF MR. DE VILLIERS
tion arises whether one could say that any contemplation of a super
visory power arises by inference, from this wording used and from the
circumstances in which it .was used. If we therefore, have to decide the
question, whether such an inference is justified, we must obviously look
at all the relevant circumstances. We must look at the events which
preceded the submission of the report by the Respondent; at the nature
of the report itself, and at the views of the United Nations as expressed
through its Members regarding the purpose and the effect of the report.
These are matters which 1 have dealt with in my argument for other
purposes and 1 need not go into any detail in regard to them. 1 merely
point out the bare threads as far as they are relevant to the present point
under discussion.
lt will be recalled, Mr. President, that by 1 November 1947, which
was the date of this resolution, we had already these facts: firstly,
General Smuts bad in 1946 indicated the limited nature and purpose of
the information which would be submitted, as being in accordance
with Article 73 (e) of the Charter; secondly, Mr. Lawrence had in Sep
tember 1947 given his further explanation emphasizing the voluntary
nature of the transmission of information and Respondent's view that
the United Nations had no supervisory powers in regard to SouthWest
Africa; thirdly there was also the fact of the limited nature of the
information which was, in fact, supplied in the report, which I have
dealt with before; fourthly, there was the fact that on the very day on
which the resolution in question was adopted, namely on 1 November
1947. and before the adoption of the resolution, Mr. Lawrence made his
further statement in which he again emphasized that the reports were
rendered on the basis .that the United Nations had no supervisory
jurisdiction; and fifthly, there was the other fact, Mr. President, that
not one of the Members of the United Nations then voiced any objection or
view to the contrary, then or at any time during the debates in 1947.
We find further that the resolution itself, in its preamble, recognized
the very nature and purpose of the report. 1 have read the preamble to
the Court before. 1 do not need to do so again. The concluding words,
if the Court .ill recall, were : .
". ·.. and that the Union Government has undertaken to submit
reports on its administration for the information of the United
Nations" ..(G.A., O.R., Second Sess., Resolutions, resolution 141 (Il),
1 November 1947, p. 48.)
The review which· we have given, Mr. President, of the attitudes
of all States during the period 1947-1949, shows that the Members of the
United Nations perfectly understood Respondent's attitude regarding
lack of supervisory powers and functions on the part of the United
Nations. We pointed out that even when, as from the end of 1948 until
1949, there were sorne States which began to question the statement
that outside trusteeship there could be no supervisory power on the part
of the United Nations, there were very few of them and they then found
a basis which did not relate to any consent on the part of the Respondent
in the transitional stage.
Especially pertinent, Mr. President, in this review which we gave,
were the vîews expressed in the Trusteeship Council itself,. that very
body to which the report was submitted for examination. .
The Court will also recall that Respondent declined an invitation ofso6 SOUTH WEST AFRICA
the Council to have its representative present at the discussion of the report.
So, Mr. President, taking ail those factors together, surely there can
be only one conclusion asto the view taken by United Nations Members
in general, in so far asit is relevant to the issue now before the Court,
and that view was that the resolution did not envisage the exercise of
United Nations supervision of administration of South West Africa, in
the sense contemplated in Article 6 of the Mandate.
That is, indeed, the only inference one can draw-and there is no
semblance of justification for suggestingthat a contrary inference is to be
drawn-that in adopting this resolution the intention of the majority
or whatever number may be accepted for that purpose--was that a
power of supervision, in the sense contemplated in the Mandate, was to be
exercised by the United Nations.
The Applicants, of course, referred to the fact that the Court in 1950,
in its majority opinion, expressed a contrary view on this particular
point-contrary to the submission I am now making to the Court.
That is, of course, so--the Court did express that contrary view. We
shall deal at a later stage with the subject of the Court's Opinion, as a
whole, and 1 do not intend to deal with any detailed aspect of it now.
I merely wish to say that, in this respect also, we respectfully contend
that that was one of the aspects of the Opinion of the Court which was
affected by the unfortunate circumstance that it did not have all the
relevant facts before it, and that that is a circumstance which also
requires reconsideration in the light of the full facts which are now
before the Court. Those facts, in my submission, can only lead to the
conclusion in this regard which 1 have just stated to the Court.
The later resolutions, referred to by the Applicants and also in the
Court's Opinion, take the matter no further. They both refer back to
resolution 141 (Il), which is the one we have just discussed. The third
resolution on the list, No. 227 (III) of z6 November 1948, merely recom
mended that Respondent "continue to supply annually information on
its administration of the territory", and "request[ed] the .Trusteeship
Council to continue to examine such information and to submit its
observation thereon to the General Assembly". (P. 164, supra.)
So, Mr. President, these resolutions take the matter no further. Jhey
sti!I deal with the same concept of annual information on the administra
tion of the territory and contain a request to the trusteeship Council to
continue to examine such information and submit its observations
thereon.
The fourth resolution on the list relied upon-No. 337 (IV) of 6 De
cember 1949-contained certain passages which I should like to read to
the Court, in so far as they are relevant-! am not going to read all of it.
The first preamble:
"Whereas the General Assembly noted, in resolution 141 (Il) of
1 November 1947, that the Government of the Union of South
Africa had undertaken to submit reports on its administration of
the Territory of South West Africa for the information of the
United Nations"-
still retaining the concept of an undertaking to submit reports for the
information of the United Nations.
The third preamble noted the fact that "no further reports would be
forwarded". ARGUMENT OF MR. DE VILLIERS 507
Then 1 skip the last paragraph of the preamble and we come to the
operative portion of the resolution, which reads-
"The Assembly,
r. Expresses regret that the Government of the Union of South
Africa has withdrawn its previous undertaking, referred to in
resolution 141 (Il) of r November 1947, to submit reports on its
administration of the Territory of South West Africa for the in
formation of the United Nations; [Again, a retention of that con
cept-the correct appreciation of what purpose the reports were to
serve, what the nature of the reports were-referred to in the previous
undertaking of the Union of South Africa.]
2. Reiteratesin their entirety [the earlier resolutions on the subject
to whlch 1 have referred].
3· Invites the Government of the Union of South Africa to reswne
the submission of such reports to the General Assembly and to
comply with the decisions of the Genèral Assembly contained in the
resolutions enwnerated in the preceding paragraph." (C.A., O.R.,
Fourth Session, 6 December 1949, p. 44.)
So, Mr. President, the very wording of this resolution itself refutes
the Applicants' contention. 1 have stressed the aspects before the United
Nations in the preamble and in the first operative portion. In this last
operative paragraph the invitation to the Government of the Union is
"to resume the submission of such reports"-"such reports" again being
reports on the administration of the Territory for the information of.t.he
United Nations. '~
Nothing is said anywhere, Mr. President, regarding an obligation to
submit reports and to account to the United Nations.
This tone of the resolution stands in contrast to the last part of it
the very last part-in which Respondent was invited "to comply with
the decisions of the General Assembly contained in the resolutions
enumerated in the previous paragraph". Those decisions, as the Court
knows, referred to the General Assembly's recommendations regarding
the submission of a trusteeship agreement. So, there, the Respondent is
invited to comply with those decisions. The request is for something
specifi.callyo be done-the submission of a trusteeship agreement which
would involve supervision, of course. There is no invitation to the
Government of the Union of South Africa to submit to any supervision
outside trusteeship, or to acknowledge an obligation to submit to any
such obligation.
It is also significant, Mr. President, that the original draft resolution,
in its first operative paragraph, read as follows: "Express regret that the
Government of the Union of South Africa has repudiated its previous
assurance ... to submit reports." (C.A., O.R., Fourth Session, 269th
Plenary Meeting, 6 December 1949, p. 535.)
This wording was objected to by the Respondent, and it was in that
connection that the United Kingdom representative had earlier stated
in the Fourth Committee, with reference to the original wording of this
draft resolution:
"It could not be said that the Government of the Union of South
Africa had repudiated its previous assurance since it had complete
liberty to decide whether or not to transmit information." (Il,
. p. 286.)sos SOUTH WEST AFRICA
In the end, Mr. President, the wording of the paragraph was altered
to read as in the resolution, namely "withdrawn its previous under
taking", and that itself is a significant indication of the understanding
and the contemplation of the States in the United Nations which voted
"for this resolution-how they saw the situation. They saw it correctly,
in our submission, as a situation in which something had been done
voluntarily-limited information had been given for the information of
the United Nations. There had been no undertaking or acknowledgment,
explicitly or implicitly, ofny duty of accountability, or any supervisory
power on the part of the United Nations Organization, and there was no
such contemplation in the resolution as a whole.
Therefore, Mr. President, I need not elucidate further. It suffices to
say that the tenor and purport of these resolutions in ·no way support
the Applicants' contention of an understanding on the part of the United
Nations that obligations of international accountability under the Man
date were owed to the United Nations. Therefore, the factual basis for
the Applicants' contention in regard to these resolutions-al.sofalls away.
Indeed, we submit that the· resolutions, read in their proper context,
and in the light of the views of the organs of the United Nations, as
expressed by their Members, prove the very opposite of the Applicants'
contention. It proves the understanding which, we submit, was a com
pletely general one.
Therefore, Mr. President, in conclusion of this part of the argument,
it is hardly necessary to say that there is in fact nothing in theApplicants'
argument to substantiate the conclusions stated by Mr. Moore at the end
of his address, when he said as follows:
"Renee, the actions of the League Assembly, of the United
Nations, and relevant statements and actions of the Resporident,
combine to support the conclusion that the Mandate and all of the
League, and that the United Nations replaced the League as the
supe_rvisory,organ over the Mandate." (P. I66, supra.)
We submit there is nothing to substantiate that conclusion. On the
contrary, it has been shown that the statements and actions of the
Respondent were understood by ail the Members of the United Nations
who expressed themselves on the subject, as being exactly what we say
those statements and actions amounted to. There was no misunder
standing. There was, in fact, no submission on the part of the Respondent
to United Nations supervisory power. There was a clear understanding
on the part of the United Nations Members concerned that there was no
such submission.
Mr. President, this brings me to the end of this part of the argument
deaiing with the United Nations history after the termination of the
Mandate. I know it is possibly early for an adjournment but 1 had to
adapt myself rather suddenly to the new situation resulting from Mr.
Muller's illness. I wonder whether it might be convenient for the Court
to consider adjourning now, as I am passing to an entirely different
subject.
[Public hearing oj9 April I965]
Mr.. President, it remains for me to deal with certain arguments of
the Applicants regarding Article 6 of the Mandate-arguments which ARGUMENT OF MR. DE VILLIERS
were not covered in the review which 1 completed yesterday morning.
The first of these is the contention that so long as Respondent continues
to administer the Territory on the basis of rights conferred by the
Mandate, Respondent by that very fact is manifesting a continuing
consent to international supervision. Those words, from "so long as" to
"supervision", 1 have quoted from the very contention advanced by the
Applicants. Mr. President, this contention also had an earlier version
as advanced inthe pleadings, particularly in the Reply of the Applicants,
and we dealt with this earlier version of it in the Rejoinder, V, at pages
71 and following. It is not my intention to repeat what is stated there,
or to deal again with the earlier version; 1 shaH deal with the argument
as it now appears to be advanced in the oral argument.
For the reasons which we have given, Mr. President, the Respondent
submits that no agreement was reached, and that no conSent was given,
regarding transfer of supervisory functions to the United Nations or
substitution of supervisory organs, whiéheverway one wishes to put that
proposition. But the Applicants attempt to find, through the medium of
thisargument now under consideration, a further basis for arriving at
the conclusion that such consent was in fact given. The argument in the
form in which it is now advanced is set out in the verbatim record at
page 205, supra, and its elements, Mr. President, can be summarized as
follows.
Firstly, on the authority of the 1950 Opinion, the Applicants state
that the Mandate did not involve a cession of territory or a transfer of
sovereignty to Respondent; Respondent was to exercise an international
fundion of administration on behalf of the League. The next step in the
argument is that this is equivalent to saying that-
"... so long as Respondent continues to administer the Territory
on the basis of rights conferred by the ~andat eespondent, by
that very fact, is manifesting a continuing consent to international
supervision".
The next step, in the Applicants' words, is-
"... inasmuch as there is in existence an international organ, to
wit, the United Nations, which is qualified to.exercise supervision
;over the Mandate, it must be presumed that Respondent's retention
of rights over the Territory is consistent with no .conclusion other
than that it is manifesting a continuing consent to submit to the
· supervisory authority of the United Nations" (p. 205, supra).
The fourth step in the reasoning, and I quote again from the address
by my learned friend, is: "Respondent's disclaimer of any such intention
imports into the proceedings a legally irrelevant consideration ... "
(Ibid.)
So, Mr. President, these are the propositions, and they require to be
analysed and dealt with on their merits. I wish to point out first of ail
in regard to the second of the propositions that it is so worded that the
fact which is said to manifest consent to international supervision is
administration of the Territory "on the basis of rights conferred by the
Mandate". That is important. That is said to be this fact which manifests
consent to international supervision; it is administration of the Territory
"on the basis of rights conferred by the Mandate". That makcs it clear
immediately that the argument is based on the premise that the Mandate
exists. In other words, Mr. President, there is first to be a finding that510 SOUTH WEST AFRICA
the Mandate exists before this argument begins to operate at all. This
was indeed made clear by the Applicants, Mr. President, when replying
to a criticism which we offered in our Rejoinder (V, at p. 73), of a similar
statement in what I have called the earlier version of this same argument
as advanced in the Reply. In their answer now, in the oral address, to
our criticism as offered there, they say, and 1 quote from the verbatim
record at page 200, supra:
"With respect to the fust asserted fatal defect, that an additional
premise is necessary that the Ma~dat es still in existence, the
Applicants accept, as the law of the case, that the Mandate is still
in existence. "
And I quote a further statement appearing at page 202,supra, ofthe same
record: "The Applicants, of course, presuppose that the Mandate applies
to theTerritory; that is their major premise." So that part of it is clear
is common cause. But, in tru th, Mr. President, that premise is on analysis
not enough for this argument. There is implicit in it a further premise,
and, that is, that the Mandate which survived contained, as a part
thereof, an obligation of "international accountability". That premise is
to be read into it also, otherwise the argument does not begin to opera te.
That is indeed what the Applicants contend. They say that Respondent's
obligation under the Mandate, as initially conce1ved, was one of "inter
national accountability"-it was not an obligation to report and account
to a specifie body only, it was a more general one of "international
accountability"-and that it was therefore capable of existence in
dependently of a specifie supervisory organ. Their further argument on
that aspect of the case is this: that on dissolution of the League the
existence of that obligation was not affected, and that, consequently,
although the League feU away-although the supervisory organs fell
away-the Mandate could remain in existence with, as part of itself, an
obligation of international accountability. The only problem with the
Applicants' approach was to make this existing but dormant obligation
operative again as opposed to mere existence in a dormant state: to
achieve that end, a substitution of supervisory organ was necessary, and
for that purpose the consent of the Mandatory was required.
That is the basis upon which the Applicants advance this further
contention, and -the argument seems, on analysis, to amount to this:
that, if we accept, firstly, the existence of the Mandate, secondly, as part
thereof an obligation of international accountability, and, thirdly, the
existence of a new international organ capable of performing supervisory
functions, if asked to do so, then, under those circumstances, the Appli
cants contend that continued administration of the Terri tory amounts to
proof-and, what is more, conclusive and irrebuttable proof--<>fconsent
to a substitution of a supervisory organ. That appears to be the effect of
this argument.
Before dealing with the merits of Applicants' argument, Mr. President,
1 wish to say something else about this premise with which I have just
dealt-about the fact that it rests indispensably on the basis of the
Applicants' "international accountability" contention-the contention
that the Mandate itself, in its original form, is to be construed by a
process either of interpretation or of implication as containing such an
obligation of international accountability. On that basic question, of
course, the Parties' contentions are in direct conflict with one another. ARGUME~T OF MR. DE VILLIERS 5II
Let us analyse the question whether the obligation was one relating
to the specifie body, or of the more general nature contended for by the
Applicants.
If the obligation related to a specifie body only, it would follow that,
on the dissolution of the League, the obligation of accountability would
lapse in the absence of other agreements. Consequently the further result
would be either. that the Mandate itself would lapse, or that it would
exist without an obligation of international accountability.
On either of these premises, namely either that the Mandate has
lapsed, orthat the Mandate exists without an obligation of international
accountability, there would be no reason whatsoever, Mr. President, to
presume that continued administration of the Territory would involve a
consent to submit to supervision by a new supervisory organ, because
the circumstances in which this continued administration would take
place, would amount either to a position where the Mandate itself would
no longer exist, or to one where, if it existed, it would not require the
Mandatory to report and account to a supervisory organ. Therefore,
there could be no implication whatsoever, and no argument, tending to
establish such an implication from the mere fact of administration of the
Territory under such circumstances.
I stress this, Mr. President, because it becomes clear that, if the
Respondent's contention as to the interpretation to be given to and the
effect of Article 6 of the Mandate as it was originally prescribed, is to be
accepted, this argument of the Applicants falls away for that reason
atone and need not be further considered.
However, that is not the only basis upon which 1 shall meet this
argument. For present purposes, let us assume the correctness of the
premise upon which the Applicants advance this argument and then test
its merits on that basis.
Mr. President, 1 have to point out, first, that our answer and the
conténtion of the Applicants conflict in a fundamental respect. It is this,
that the question of whether Respondent consented to such substitution
or replacement of a supervisory organisa question of fact and not of law.
It is a question such as any question of consent would be, viz., a question
of fact, and inorder to establish whether, in fact, such a consent was given,
or was not given, it is necessary to have regard to all the relevant evidence
on that question and not merely to sorne facts isolated from their context
and with disregard for other relevant facts. 1t is at this very point, in our
submission, that the Applicants' argument breaks clown.
The Applicants attempt to establish the existence of the alleged con
sent on Respondent's part by isolating one fact, namely the administra
tion of the Territory, from all other circumstances. They do so, of course
against the background of the existence of this new organ which they
say was capable of exercising the function and on the premise, which 1
mentioned before, that there was an obligation of accountability still
existing in the Mandate itself, but the only fact which they now isolate,
in order to see whether there was consent to a substitution of this new
organ, is that of the administration of the Territory. Mr. President, the
Applicants say, firstly, in purported justification of this process of
reasoning on their part, that what Respondent said at varions stages as
to its intention, in regard to the basis upon which it continued to ad
minister the Territory, that-and 1 use their words-is a "legally irre
levant consideration". The Respondent's disclaimer of an intention to512 SOUTH WEST AFRICA
consent to a substitution of supervisory organs, the Applicants say, is
legally irrelevant. They say that the subjective attitudes of persons who,
from time to time, constitute Respondent's Government is, in any event,
incapable of factual demonstration, one way or the other. Those aspects
in the reasoning, we get in the verbatim record at page 205, supra.
Mr. President, let us analyse that. The question is one of consent, i.e.,
whether there was consent to a particular proposition. The consent is
sought to be inferred from conduct, the conduct being, in this case,
administration of the Territory. The person concerned makes it perfectly
clear,by what he says, in what sense he views the continued administra
tion of the Territory. He makes it perfectly clear that he does not consent
to any substitution of supervisory organs or acknowledge any supervisory
power on the part of any organization. However, my learned friend says
these are "legally irrelevant considerations", i.e., for sorne reason of law
they are not to be taken into account, in this particular case. He gives as
a further reason that, from a factual point of view, it is impossible to
establish the subjective attitudes of persons who may from time to time
constitute Respondent's Government.
Mr. President, in our submission, that is totally unfounded. Astate of
mind of a person, or of a corporation, or of a group of persons, or of a
body, is a question of fact. It can be established by the same processes as
any other question of fact. It can be established by all relevant evidence
and such evidence may be of two kinds. It may be evidence which
emanates from the person, or corporation, or body, or representative
thereof-statements made at relevant times-which throw a light on the
question of probable intent. Such statements may be explicitly directed
to intent and may be made by somebody representing the corporation, or
by an individual, when his intent is relevant, by giving evidence in a
court of law and saying that "my intent at the tirne was so and so and
so ... ". Those are ali possible ways. Of course, the court would have to
weigh the credibility of such evidence. Very often there is such evidence
and the court has to consider, in the light of ali the circumstances,
whether it willaccept that evidence or reject it, as a matter of credibility
or acceptability. That does not, however, make the evidence, ifaccepted,
a "legally irrelevant consideration".
In order to test whether statements of intent, or statements relating
to intent,can indeed be accepted at theirface value, the court a1so tests
them in the light of surrounding circumstances and makes inferences or
deductions from the surrounding circumstances as to what the intent
really was. Very often that is the only type of evidence available to the
court. The court may have no expressions of the petson concerned, either
in evidence or at a prior stage-no expressions of mind~whic idicate
what his intentions were but the court has to infer from the totality of
evidence, and from surrounding circumstances, whether certain conduct
o·nhis part was, in fact, intended to convey a certain intent, or a certain
consent or not.
Again the proposition applies-the ordinary proposition of Iogic-that
if a party were to make a positive averment that conduct amounted to a
manifestation of a certain intent, or consent, that would have to be
established by a process of necessary inference from ali the facts. The
inference would have to be consistent with ali the proved facts, and it
would have to exclude ali other reasonable inferences.
Mr. President, the important fad is that there can riever be any ARGUMENT OF MR. DE VILLIERS 513
justification for picking out a part of the relevant evidence-such a part
as appears to bear out a particular conclusion-and then discarding and
disregarding all the facts which point to the contrary conclusion. That
could never be justified in any process of law, or logic, of which I am
aware. .
Moreover, Mr. President, we are dealing here with a concept of a
consent to an obligation, or a consent to a modification of an obligation
which, in principle, amounts to the same thing-the basic principle being
that that obligation, whether it be a new one or a modifi.ed one, cannat
be regarded as being vested in, or being imposed upon, the party con
cerned, except with that party's consent.
Now, how is that kind of obligation, such a consensual obligation,
created? It is not created merely by a process of a persan having in his
mind a certain intent. It can only be created by that intent-that state
of mind-being conveyed to the other persan, or persans, who have a
legal interest,or a potential legal interest, in the situation__:_the other
contracting party, the other legally interested party, as the case might be.
If an esta te agent offers me a certain property for fro,ooo and I Iike the
property, and 1 decide·! should like to huy it for fro,ooo, and that is my
intent, that still does not create a contract, or an obligation, on my part
to huy, to pay the priee and take delivery of the property. It is only
when 1 convey that intent in writing, or in speech, or in conduct, to the
party who made the offer to me, that there·can be created a vinculum
jurisof the necessary kind.
Therefore, Mr. President, it becomes the more surprising to find a
submission to the effect that actual statements by the party upon whom
it is sought to visit this obligation, are to be regarded as irrelevant
considerations-legally irrelevant. AUone looks at is a particular element
of conduct on the part of the party but whatever he says about it; is
regarded as irrelevant.
On analysis, Mr. President, this contention appears to be unsound
because, if the Respondent Government had said ~xpress ''1yegard the
United Nations as substituted for the League of Nations as a supervisory
body" and proceeded to administer the Territory on that basis, 1 take
it, my learned friend would not contend that that is a legally irrelevant
consideration. It would be perfectly relevant. It would indicate explicitly
and expressly that what he is now contending for was indicated by con
duct.
However, Mr. President, his contention amounts to this, that if the
South African Government had said explicitly: "We consider that the
Mandate exists but without accountability to anybody~t aoy inter
national organ or body and we therefore proceed to administer the
Territory on that basis"-that, my learned friend then says, is an
irrelevant consideration.
Equally irrelevant, on the basis of his contention, would be a statement
to the effect that the Union Govemment considers that the Mandate has
lapsed; that it considers that it has a title to administer the former
mandated territory on sorne ground falling outside the Mandate itself-for
instance, a prior occupation or conquest, and that the Union Government
then says that it will, therefore, continue to administer the Territory on
that basis-on the basis of the Mandate having lapsed-on the basis
of another title which it daims to the Terri tory, but subject to the general
policy-asamoralobligationandnotalegalone-ofactinginthespiritofthe SOUTH WEST AFRICA
Mandate, but without accounting to any international body in that regard.
Suppose the Union Government bad made an explicit statement of
that kind, it would, on my learned friend's submission, appear that
that also would have to be regarded as legally irrelevant.
What it amounts to then, Mr. President, seems to be this, namely that
my learned friend contends that the Union Government, the Respondent
Govemment, is to be treated as if it had agreed or consented to something
to which it might expressly have said that it did not agree or consent.
This would, thercfore, be something in the nature of a predusion; so that
what is taken into account here is not the actual intent, or the evidence
bearing on the question of actual intent, but a proposition to which the
Union Government must be deemed to have consented for sorne legal
reason, although it did not, in fact, consent thereto. That seems to be the
nature of this proposition.
The only principles I know of, Mr. President, which could justify a
proposition of that kind, would be a proposition of estoppel, or predusion,
the principles applying to a case of estoppel or preclusion. I shaH deal
with those in a moment in arder to see to what extent they apply here.
But outside of those principles I know of none whatsoever justifying a
proposition that a party must be taken, or must be deemed, or must be
presumed condusively, to have consented to any proposition to which it
has, in fact, not consented.
My learned friend's contention amounts to this: suppose somebody,
without my consent and without any right or title to do so takes occupa
tion of my house while it is standing empty. I go to that persan and say
to him: "You have no right to be here but I am willing to sell the house
to you for fio,ooo, or to rent jt to you at f8o a month", and the man
turns round tome and says: "I am not willing to buy this property. 1 am
not going tohuy it. 1 am not willing to hire it from you. 1 am not willing
to pay any rent, but 1 am going to stay in occupation because I daim a
right to be here." Surely, Mr. President, on ordinary principles of law,
I can then go to court, if the man has no title, and ask for his ejection,
but I can never ask for the purchase sum of fro,ooo as if he had consented
to purchase the property. I can never daim fSo a month rent from him.
I may daim something equivalent by way of damages for illegal occupa
tion of my property, but I can never daim the amounts which I offered
to him as contract sums ifhe were to agree to them. I have my remedy.
I have to take action, not for enforcement of a suggested consensual
arrangement of contract, but to have the particular persan treated as a
trespasser and to have him ejected from my property: that is the nature
of my remedy.
But this is not the nature of the remedy which is being sought here by
the Applicants. The Applicants' case is not that the Mandate no longer
exists, orthat the only basis of title which the Respondent Government
could have in respect of South West Africa would be a mandate which
involves accountability to the United Nations, and that, in view of the
fact that the South African Govemment is not willing to acknowledge
accountability to the United Nations, the Mandate must be regarded as
repudiated-as terminated-and that the Union Government must
therefore, be regarded as having no title to the Territory, and that the
Court must declare accordingly. That is not the case, not the type of
case brought by the Applicants.
The Applicants' case is that the 1\Iandate is in existence; that the ARGUME!'<T OF MR. DE VILLIERS
Mandate contains as part thereof an obligation of accountability; that,
ill order to make that obligation of accountability one to the United
Nations, consent was required on the part of the Union Government, and
that the Union Government, irrespective of many relevant facts on
record, must be taken to have given such consent. That is the type of
case brought. And that makes it so important to consider all the relevant
facts: firstly,to see whether, in fact, such consent was given, and,
secondly, if, in fact, no such consent was given, whether any principle
of estoppel, or preclusion, or something similar, could operate to bring
about a result on the basis that there had been consent although, in fact,
there was none.
Mr. President, the inquiry, therefore, falls into the two parts: an
inquiry into actual consent and an inquiry into the possible application
of a principle of estoppel or preclusion.
As to the first part-the question of actual consent-the whole of the
review which 1 gave yesterday and on the preceding days is our answer
thereto. The examination of the relevant facts made it perfectly clear that
there was never, on the part of the Respondent, any attitude which could
reasonably be construed as involving a submission to a substitution of
supervisory organs, as involving any consent to such a substitution, or
a submission to supervisory powers or functions on the part of the United
Nations. It becomes perfectly clear that, if all the factors are taken into
account-all the legally relevant factors-that was the attitude of the
Respondent throughout, and that that was also the attitude as it was
understood by the other States concerned-by the other parties with
legal interests.
Therefore, Mr. President, the facts do not in any way support a con
clusion that such consent was, in fact, given. The Respondent did
continue to adrninister the Territory, but it continued to adrninister it
on a basis, made clear from the start, which did not involve any obli~ation
of international accountability-i.e., of course, from the dissolutiOn of
the League. In particular, it involved no obligation of accountability to
the United Nations.
Mr. President, on the question of the principles of preclusion or
estoppel, they are, as 1 have said, the only basis in law which 1 know of,
on which a subjective attitude may indeed, in my leamed friend's words,
be said to be "a legally irrelevant consideration"-the only basis on
which it might be possible to say that, whatever the subjective attitudes
of a persan might have been, his conduct was such as to preclude him
from denying consent to a contract or obligation. In such cases the law
has regard particularly to the conduct of a persan, that is, not only to
what he does but, of course, also to what he says; it has regard to the
impression which his actions and his statements create in the minds of
other persans, and, in particular circumstances, it gives effect to the
impression which has been created, rather than to what might have
operated subjectively in the person's mind without it becoming manifest
through his actions or words. That is the basis upon which there may
sometimes be a preclusion or an estoppel, but not on the basis, suggested
by my leamed friend, namely that all evidence bearing on the question of
the impression made by a persan, bearing on the question of what he
manifests to the outside world in regard to his intent, or in regard to the
proposition of consent in a particular case, is to be disregarded, and that
only one element in this picture is to be looked at.sr6 SOUTH WEST AFRICA
That method of reasoning, Mr. President, is the very antithesis of the
underlying principles of estoppel-the doctrine of estoppel or preclusion.
We deal in the Rejoinder, V, pages 76 to 78, with the principles of
estoppel or preclusion, and we refer there to authority both in municipal
systems and in international law. 1 need not deal fully, Mr. President,
with the review which is set out there. It has not been challenged in any
way and I need merely summarize; on the basis of the authority there
discussed we submitted that the following are the essential elements for
the invocation of the doctrine of estoppel or preclusion. And I emphasize
that all of these elements must apply: if any one of them is absent then
the doctrine cannot apply. · .
~he fust requirement is an attitude clearly ·and unambiguously
expressed, or manifested by cond11ct, by the party whom it is sought to
preclude. The attitude must have been conveyed in a clear and an un-.
ambiguous manner, either by words, or by action, or by a combination of
the two, but the important point is that it must have been a clear and
unambiguous manifestation. It must have been capable of interpretation
in only one way, because that supplies the basis upon which it may be
sàid that a party is going to be misled, or has been misled.
' The second requirement is the creation, as the result of such an attitude,
of "a change in the relative positions of the parties, worsening that of the
ône, or improving-that of the other, or both". These words are taken from
the opinion of Sir Gerald Fitzmaurice in the Temple case, which we cite
at'page 76 of the Rejoinder (V). In other words, this clearly and un
ambiguously expressed or manifested attitude must have resulted in a
change in the position of others. Acting upon the faith of that manifesta
tion the others must have changed their position relative to the party
making this statement, or manifesting this intent, and it must have
involved a worsening of the position of the one or an improvement of
that of the other, or the like.
Thirôly, Mr. President, the party whom it is sought to preclude, must,
niake a daim in the relevant proceedings, which is manifestly contrary
to the attitude which he had previously adopted or conveyed. .
Those are the three elements, and, as 1 have said, ail three must apply
in order to rendèr the doctrine applicable. But, as we shall show, Mr.
President, not one of these requirements is satisfied in the present case.
It is not only .amatter of only one or the other not being applicable; none
of them apphes because the facts are so fundamentally opposed to any
suggestion of a possibility of appl:Yinga doctrine of this kind.
· The fust inquiry is whether there was such a clearly and unambiguously
displayed attitu"de to the effect that the Respondent would render account
to the United Nations. That is the relevant consideration in the present
èase. ·
.Mr.·President; as in the enquiry regarding actual consent, regard
mu5t naturally·also be had to ali the relevant facts. It would, again, not
be·permissible to divorce one isolated fact-in this case, administration
Ofthe Territory-from ali the other relevanf tacts-relevant in the sense
that they throw Iight on the manner in which a manifestation of attitude
is·to be interpreted. A consideration of ali the relevant facts, as we set
them ·out in the Rejoinder, V. pages 79-81, shows that Respondent, in
fact, _didnot make such a representation, and that it was never under
stood to have made ·such a representation. The review which we give in
the Rejoinder, on the pages mentioned, covers very much the same field ARGUMENT OF MR. DE VILLIERS 517
as was covered by .the review, which I completed yesterday. The oral
review has been a fuller one than the one we give in the Rejoinder (V).
I ask the Court, with respect and with submission, to have regard to
the oral review as we have given it here-that, I submit, .makes it
perfectly clear, whether one looks at it from the point of actual intent
actual consent--or from the point of view of a representation of actu.al
intent or consent, the review of the .fads makes it clear that such a
representation was never made and that such a representation was neven
understood to have been made. ..
This last factor, Mr. President, i.e., how Respondent's conduct was;in
fact, interpreted by the other interested parties, by itself also negatives
any suggestion that the relative positions of the Respondent and the
other States were changed as a result of Respondent's conduct. There
was no situation whereby the other States said: "Now, inasmuch as we
understand that the South African Government is going .to administer
thisTerritory with accountability to the United Nations, we, therefore,
now take up an attitude which we would not otherwise have adopted."
The whole proposition simply does not apply because, in fact, the States
concemed never understoodthat Respondent took up such'an attitude.
Finally, Mr. President, since the Respondent did not, in fact, make
the representation alleged by the Applicants, there can be no question
now of present conduct being inconsistent with:such a representation.
We contend now, as the South African Government said ail along, that
there was no obligation of accountability to the· United Nations; and
that there was no submission to the United Nations as a supervisory
organization. · :•
In the result,<Mr. President, none of the requirements of an estoppel
or a preclllsion has been established, and, I submit that this argument,
adduced on behalf of the Applicants, is entirely without substance.
I proceed with another of the argurrients which I have not 'fullydealt
with yet, and that is an argument resting on a suggested relat10nship
between Art ce 6·of the' Mandate. and Article 7, .paiagraph 1,of the
Mandate. .'
I have dealt, in general,".Mr,·President, with the distinction in:concept
between the two subjects dealt with in Articles 6 and 7 (I)-the' concept;
on the onè hand, of supervision, of submitting to regular supervision by
an international organization ;.and the concept, on: the 'other band, of.
approaching an international organization ·with a view to agreement
upon a change in the status of a particular territory;·And 1dealt with the
importance of that distinction in so far as·the interprètation of the :rele
vant a"cts and sta~ein of ht'sRespondent and other States in the
United Nations is concerned.. ·~' ' .: .
But, Mr. President, there are certain other aspects of the argument
regarding this suggestèd·relationship betwcen· Article 6 and Article. 7,
as raised'by the Applicants, which I have not met yet and 1 p·roposèto
do so now. . ·. · ·
They use the argument of this suggested relationship as a contention
against our submission that Article 6 has Iapsedc-that the obligation
of accountability has lapsed. The argument first."raised in the verbatim
record, at page$ 127 to 128, supra is to the effed that if Article 6 has
lapsed, Article ·7, paragraph 1,inust also have lapsed. The Applicants
then contel).d that the consequences would be, firstly, that the Mandate
would be frozen in perpetuity, or, alternatively, that the RespôndentSIS SOUTH WEST AFRICA
would be entitled unilaterally to modify the Mandate. Those are the only
consequences, the Applicants say, which would flow from a lapse of
Article 7, paragraph I, of the Mandate, and they contend that those
consequences are so intolerable asto "confirm the essential nature of the
retention of international supervision as a legal conclusion". (P. 128,
supra.)
The question was developed at somewhat greater length, Mr. Presi
dent, in a subsequent part of the argument, which we find in the verbatim
record at pages zrs, supra, and following. The relevant conclusion for
present purposes is stated in much the same way at page 219 of that
record as 1 have just putto the Court. 1 need not read it: the effect is
as 1 have put it, namely that the consequences of a lapse of Article 7,
paragraph I, are so startlirig that, as a result, one must conclude that
it could not have happened. Consequently, one must conclude that
Article 6 could not have lapsed. Those startling consequences are that
the only two alternatives would be a perpetuai freezing of the Mandate,
or that the Respondent would be entitled to modify the Mandate
unilaterally.
Mr. President, our attitude can be stated quite simply. We agree
entirely that the same type of reasoning which leads to the conclusion
that Article 6 has lapsed could also lead to the conclusion that Article 7,
paragraph r, has lapsed. ln Article 6 there is a reference to the specifie
supervisory organ which is, in our contention, a necessary element in
that definition of the whole obligation. In Article 7, paragraph I, pro~
vision is made for amendment or modification of the terms of the Man~
date, with the consent of the Council of the League. As soon as the
Council of the League falls away, that particular provision becomes
inoperative, unless an agreement is made tosubstitute sorne other organ,
or sorne other agency, in the place of the Council, and our submission is
that there was no agreement which substituted any other persan or body
in the place of the Council.
But, Mr..President, before becoming alarmed about the consequences
of such a situation,as the Applicants do in their argument, it is necessary
to consider first what function was fulfi.lledby Article J, paragraph I,in
the Mandate. Let us get that in proper perspective first, and then see
whether these consequences are indeed so alarming, or are indeed of the
nature depicted by the Applicants' argument. .
The function of Article J, paragraphi I, was simply to provide ma~
chinery of a useful and practical nature whereby the terms of the Mandate
could be modifi.ed 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.
It does not follow, Mr. President, that, without such provision,
modification would have been impossible in law. It certainly does not
follow if one tests the position in the time of the League. Many treaties
or international agreements, like contracts in municipal law, contain no
specifie provision for amendment, but there are, nevertheless, processes
of law whereby amendment or modification is possible-agreement of
ali the interested parties-ail the parties to a contract-ai! the parties
to a treaty or convention. That is one of the ordinary and basic manners
in which, as a general legal proposition,it is possible to alter relationships
created by agreement or by treaty, or by convention. And the same ARGUMENT OF MR. DE VILLIERS 519
would have applied in the mandate system. Modification would certainly
have been possible, just as in the case of any other treaty or convention
or status, or any other international relationship, although the procedure
might have been a more cumbersome one. It would have been necessary
to obtain the consent, or the recognition, of all the interested parties,
and in this instance that would probably have included all the Members
ofthe League. Thus, if it had not been for this machinery, the consent
ofa11the Members of the League (as the other interested parties or bodies
having legal interests) would have had to be obtained for a modification
of the terms, and that, of course, as I have said, would have been more
cumbersome-more difficult-than obtaining the consent of the Council,
as such. May 1 refer the Court, in this regard, to the dissenting opinion
of Judge McNair in the 1950 Opinion at page 162. On this very point,
where the learned judge put it as follows, after referring to the contents
of Article 7, paragraph I-
"The effect of this paragraph is that thereby the Members of the
League, as the States interested in the Mandate, empowered the
Council of the League on their behalf to consent to any modification
of the Mandate which the Council might consider to be appropria te."
Whether, with respect, it is correct to put it exactly in that form,
that is, that there was a power given by the Members of the League to
the Council, to act on their behalf, or whether one should construe the
initial processes in a different way, does not matter for the moment for
my purposes. The approach of Sir Arnold McNair is, in essence, the one
which I submit to be correct-that is, as I have submitted to the Court,
what we have here is merely a facilitated procedure for doing something
which could have been achieved by a more cumbersome process in
accordance with ordinary principles of law.
So, Mr. President, it follows, in my submission, that the Applicants
are wrong about the consequences which they assign to the fapse of
Article 7, paragraph I, through the lapse of the authorized machinery.
The more cumbersome machinery inherent in ordinary principles would
still apply: inother words, the consent or the recognition of ali who have
legal interests inthe matter, would have to be obtained.
If one were to regard the relationship as being a treaty relationship,
it would mean getting the consent of all the parties to the treaty. In
this case, the lapse of the organ which could give consent in terms of
Article 7 (r), occurred as part of the disappearance of the League itself.
It may be, Mr. President (we know that there were differences of opinion
in relation to the matter in the proceedings on the preliminary objections)
that after the disappearance of the League, the Mandate was still to be
seen as a treaty relationship, or that it was no longer to be seen as a
treaty relationship. In the first event, as I have said-that is,if it was
still to be seen as a treaty relationship-all the interested parties, who
would probably be ali the Members of the League, would have had to
give their consent. In the latter event, i.e., that it was no longer to be
seen as a treaty relationship, but as a continuing institution involving
special status for the Territory the same position would, 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 basic principles involved are those of agreement or recognition, as 520 SOUTH WEST AFRICA
between the parties concerned. And, therefore, Mr. President, there is no
reason whatsoever to suggest, as the Applicants do, that the Mandate
could exist only in a frozen, or irnmutable state, or, alternatively, that
it would have been subject to unilateral modification. Ordinary legal
principles would still apply, whether it was to be regarded as being a
treaty or as surviving as an institution only, involving a special status
for the Territory---or whether it was to be seen as a combination of the
two, involving elements of a treaty and, also, elements of a continuing
institution involving a special status for the Territory.
Under all those circumstances it is possible, in principle, to get an
alteration of the existing legal situation through the ordinary processes
of obtaining the consent or recognition of the parties that have interests
in the situation. That being the legal situation, it is not true to say
either that the Mandate would remain in a frozen or inunutable state,
or, alternatively, that it would have been subject to unilateral modi
fication.
The processes by which such international agreement or recognition
coUld be obtained, as·I pointed out before, could take one of two forms,
or a combination of the two: it could take the form of obtaining the
individual consent or recognition of the various interested States;
alternatively, the practical procedure could be to lay the matter before
an international organization, such as the United Nations, which rep
re5ents most of the civilized States of the world. The effect of obtaining
the agreement of an organization like the United Nations would, for aU
practical purposes, be the same as obtaining the consent of ail the Mem
bers individually, and that would probably be of decisive, practical
value. That is why the various instances occurred; which I mentioned
to the Court earlier, when propositions involving a proposed .alteration
in the status of particular territories, quite independently of any concept
of international supervision, were submitted to the United Nations, and
when agreements were arrived.at which had the desired practical effect.
. That process of submitting· a matter to the United Nations for a
purpose of this kind does not, therefore, necessarily carry with it the
implication, of th.e technical construction, that the United Nations is
to be regarded as having been substituted for the Council of the League
for the purposes of, and in terrns of, Article 7 (1)"of the Mandate.
In this regard, the Applicants still rely on statements and actions by
representatives of the Respondent as constituting acknowledgment,
firstly,that Respondent was not -entitled to modify the status of the
Territory unilaterally, and, secondly, that the United Nations General
Assembly had replaced the Council of the League as the body entitled,
in terms of Article·7 (1),.to consent to the modification of the terms of
the Mandate. Those are their contentions, and, Mr. President, 1 submit
that they are, at any rate as far as the second proposition is concerned,
entirely without substance. As regards the first proposition, namely that
Respondent is not entitled to modify the status of the Territory uni
laterally, we have already dealt with the question whether the relevant
statements and conduct, relied upon by the Applicants, indicated any
contemplation that the Mandate remained in existence. To the extent
to which they did show such a contemplation-and we admit that sorne
of them did-they would, of course, also imply an acknowledgment that
Respondent was, indeed; not entitled to modify the status of the Territory
unila terally. ARGUMENT OF MR. DE VILLIERS 521
As soon as there is an implication that the Mandate is in existence,
involving a certain status for the Territory, 1 accept entirely that it
implies recognition and acknowledgment that Respondent is not entitled,
as a matter of law, to modify the status of the Territory unilaterally.
But, also, on the basis of the view, put forward by the South African
Government from 1948 onwards, that the Mandate has lapsed, the
Government has always indicated. its policy to be that the Territory is
being administered in the spirit of the Mandate and that, in accordance
with that general approach or policy, it bas expressed its intentnot to
modify the status.of the Territory unilaterally-inother words, without
general approval by the world community. That is, in fact, the declared
policy of the South African Govemment, even on the basis that the
Mandate in law no longer exists. So, on that part of the Applicants'
argument, we have no material 'quarrel with them.
Our quarrel is with the second proposition, namely that in the state
ments and actions on which they rely, there was an acknowledgment
that the United Nations General Assembly replaced the Council of the
League as the body enti~ inlterris ç>fArticl7. (1) to consent' to the
modification of the terms of the Mandate. ·
Ali .the statements and the conduct in question on which the Applicants
rely for that proposition, Mr. President, relate to the proposai conceming
incorporation in 1946.For the reasons I have given, Mr. President, they
in no way imply the technical construction of a substitution of the
General Assembly for the League Council for purposes of continued
application of Article7 (1) The procedure was adopted as a practical
one to bring about a certain result. It wa.Sone which was employed by
other States·quite independently of a question of mandate, and, therefore,
one which carried no further significance than just that. There was no
implication, either expressedor implicit, to the effect that there would
be a substitution of the General Assembly, technically, in the'provisions
of Article7 (1) of the Mandate. .
On this point, Mr. President, it is significant to see how the Court
treated this subject in 1950. In the majority opinion the Court based its
finding on the conclusion that there was a substitution for purposes of
Article 7 (1).It based that finding mainly on the conclusions which it
had already reached· regarding the ·substitution of United Nations
supervisory organs for those of the League, for purposes of Article 6.
That was the basic finding, that there had been a substitution for
purposes of Article6. Arguing from that .basis, it wasq~it easy to find
also that there was an intent to have a substitution for purposes of
Article 7 (1).After a conclusion had been reached on the strength of
these considerations,the Court said that the conclusion was strengthened
by the action taken by the General Assembly and the attitude adopted
by the Union of South Africa. .
In contrast, we find Sir Arnold Mc~air 'ratment of the subject in
hisseparate opinion. The Court will recall that he found that Article 6 of
the Mandate bad lapsed and that there was no substitution of a super
visory organ.On a similar reasoning he found that Article 7, paragrap1,
had also lapsed, and that there bad been no substitution of a supervisory
organ; and it was on that basis that Sir Arnold McNair had to deal with
the question: where does the competence now lie to modify the status of
South West Africa? He deals with that question at pages 162-163, and
the answer which he gives acëords in ali material respects with what I522 SOUTH WEST AFRICA
have been submitting to the Court now. At page r62 of the opinion the
learned judge stated:
"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 Article 7
of the Mandate has now lapsed. But this event in no way alters the
quatity or amount of the Mandatory's title or enlarges its power to
modify the terms of the Mandate, because the international obliga
tions affecting the Territory (except those which, as I have stated,
have already lapsed) and the international status of the Territory
continue to exist. Moreover, the Charter provides one method by
which the international status of the Territory can lawfully be
modified by the Mandatory, namely, by negotiating with the United
Nations and placing it under a trusteeship agreement, as described
in Chapters XII and XIII of the Charter."
Significantly, Mr. President, he says: "the Charter provides one
method by which the international status of the territory can lawfully
be modified." That is the method of agreement between the Mandatory
and the United Nations. The particular example given there was by
"... placing it under a trusteeship agreement", but of course, the last
Assembly resolution of the League contemplated more generally ali
-arrangements that might be agreed upon between the mandatory powers
and the United Nations, involving all kinds of alternatives-an alter
native, for instance, as was asked for-as was contended for-by the
South African delegation in 1946, namely one of incorporation of the
territory; and, also, an alternative such as was, in fact, achieved in the
case of Palestine.
So, Mr. President, it followsthat the lapse of Artic7e(r) certain! y does
not have the disastrous consequences contended for by the Applicants.
Jt is significant in this regard to note the light in which the General
Assembly itself viewed the submission to it of the matter in 1946. In
resolution 65 (I) of 14 December 1946 (64th Plenary Meeting) one of the
paragraphs of the preamble reads as follows:
"The GeneralAssembly,
Noting with satisfaction that the Union of South Africa, by
presenting this matter to the United Nations, recognizes the interest
and concern of the United Nations in the matter of the future status
of territories now held under mandate;
ls unable to accedeto the incorporation of the territory of South
West Africain the Union of South Africa; ... "
The Court will note, Mr. President, that the highest at which the matter
was put by the General Assembly, was that Respondent's conduct
constituted a recognition of the "interest and concern" of the United
Nations. It did not manifest a contemplation that there was an acknow
Iedgment that the United Nations had succeeded to the functions or the
powers of the League Council in terms of Article 7 (r) of the Mandate .
.Mr.President, in regard to the Court's finding in 1950 that the United
Nations had succeeded to the powers previously exercised by the League
in terrns of Article (r). Respondent contended that-
"... an essential link in the Court's reasoning was its previous ARGUMENT OF MR. DE VILLIERS 523
finding that 'powers of supervision in respect of the administration
of the Mandates' were vested in the General Assembly of the United
Nations. Respondent has submitted that this finding was incorrect.
If Respondent's submission in this regard is sound, it would follow
that the said Advisory Opinion would no longer be acceptable
authority for the proposition-'that it is the United Nations whose
consent is now required for any modification of the terms of the
Mandate'." (IV, p. I35·)
The conclusion, Mr. President, we subrriit is incontestable. Agreement
with the United Nations would be one of the ways in which there could
be a modification of the terms of the Mandate, that is, if one concedes
that the Mandate exists. But it would be only one of the ways, as was
said by Sir Arnold McNair; there are alternative methods by which a
same result can be achieved, i.e., without there being unilateral modifica
tion on the part of the Respondent.
Mr. President, 1 have just read a passage from the Counter-Memorial
in which the Respondent stated explicitly that on its contention the
particular finding in the Advisory Opinion also could not stand, namely
that it is the United Nations whose consent is now required for any
modification in terms of the Mandate, and 1 explained the sense in which
the Respondent makes its submission in that regard-the United Nations
could provide a method for modification, but that would not be the only
method. This conclusion, 1 submit, Mr. President, is an incontestable one,
but my learned friends do not attempt to answer it on its merits-they
merely try to discredit it by referring to what they term the consequences
of it. They say in the verbatim record at page 222, supra, that Respon
dent's submission-
"... leads to a reductio ad absurdum, that is to say, a conclusion that
if the alleged 'new facts' had been known to the Court in 1950, the
Court would have held that Respondent does, after ail, have
competence to modify, and thereby destroy, the international
status of the Territory".
Mr. President, the Court will see that the only consequence here assigned
to our submission is that the Respondent would have, after ali, "com
petence to modify, and thereby destroy, the international status". The
earlier alternative to which the Applicants' learned Agent himself bad
referred, namely that the Mandate could remain in a frozen condition
-that is not even mentioned here any more, and of course, Mr. President,
no mention whatsoever is made of the possibility of an alteration of
status by the ordinary processes of international agreement and recog
nition. Therefore this alarming picture which the Applicants purport to
paint in regard to the consequences of the submission that Article 7,
paragraph I, of the Mandate is now inoperative-this part of their
contention is entirely without any substance.
For the reasons with which we have dealt we submit that the inter
relationship between Articles 6 and 7 (r) of the Mandate was a functional
one during the existence of the League, but it was not of such an inher
ently essential nature that the falling away of Article 6 would have
the results contended for by the Applicants. The inoperability and the
consequent lapse of provisions of the Mandate such as Article 6 and
Article 7, paragraph r, which were dependent for their operation on
organs of the League-that was a consequence of the disappearance of SOUTH WEST AFRICA
the League which was deliberately foreseen and intended by the inter
ested parties. They deliberately preferredto make no further provision
about matters of that kind in the circumstances as they obtained, and
one, therefore, has to accept the legal consequences of that deliberate
decision. The consequences inthe case of Article 7 (r) are by no means as
alarming as suggested by the Applicants; the position is stiii that modifi
cation can be obtained by the ordinary processes of international consent
and recognition, including the possible procedures through obtaining the
consent of the United Nations1 · ·
Mr. President, I come to deal with another argument very briefly-a
suggestion by ~he.Appli Acgant hat'there is an analogy between the
cy-près doctrine and the contention which he is advancing to this Court
in regard to the interpretation of Article 6 of the Mandate. The relevant
passage is in the verbatim record at page'r8g, supra. It reads as follows:
"Notwithstanding Respondent's formai objection to the doctrine
ofcy-près, and recognizing that the benefièiaries have remained the
sarne, nonetheless the beneficiaries themselves have no right under
the Mandate to seek judicial or administrative recourse. The concept
underlying the cy-près doctrine, accordingly, may be thought to be
analogous to the situation here, that is; a new surrogate, or represen
tative of the beneficiary, is essential, inasmuch as without such
representative the beneficiary, whkh has no 'existence' inlaw, bas
no right to seek protection, as inhabitants."
Mr. President, it will be.seen that this suggestion that the cy-près doctrine
can have sorne application in this case is a very tentative one, and it is,
therefore, not necessary for me to deal at any length or exhaustively
with the topic. l\Iembers of the Court may recall that during the Oral
Proceedings on the Prelimiilary Objections we had occasion to consider
the authorities in regard to the cy-prèsdoctrine, and for the reasons
there set out we submitted that the circumstances of the present case
are not analogous at ali to those justifying invocation of this doctrine.
The Court will find the references in the Oral Proceedings of rg62 at
pages rr8-r20 (VII).
Basically, Mr. President, in our submission the analogy itself is a false
one. Under the cy-prèsdoctrine a court may under certain circumstances
direct that where a beneficiary under a trust cannot be ascertained or
has ceased to exist, the trust assets may be employed for the benefit
of another beneficiary of the same kind as the original one. One finds this
especiaUy in charitable bequests, where there is an intent to benefit
charity, and for that purpose a specifie institution is mentioned. The
particular institution falls away and the court applies the bequest for
the benefit of another similar institution. The po1make at the moment
isthat the doctrine is applied, where there has been a lapse of the benefi
ciary mentioned, to prevent a complete lapse of that kind. In the present
case there is no question of the lapse of a beneficiary under a trust, as the
Applicants indeed recognize in the passage which they have quoted.
The analogy which they suggest is that the doctrine should be applied,
not to the case of a lapse or disappearance of the beneficiary, but to the
lapse or disappearance of the supervisory organ. But, Mr. President, on
analysis they do not contend that the court can substitute a new super
visory organ in the same way as the court would be able to substitute a
new beneficiary under the application of the cy-prèsdoctrine-they do ARGUMENT OF MR. DE VILLIERS 525
not go so far. Such a contention would indeed, ;\lr. President, raise
insuperable difficulties-di:fficultof .principle which are not involved
in the application of the cy-prèsdoctrine by municipal courts; the
principle, for instance, that an obligation cannat be imposed upon a
party who has not consented to that obligation. There cannat b~ a
modification of an obligation not consented to by the party itself. That
type of problem does not arise in the application of thecy-près<ioctrine
at aU; it does arise here. The Applicants, therefore, do not go so far asto
say that the court itself could effect such a substitution on ·the analogy
contended for. Their argument rather seems to be this, Mr. President:
that the same type of interpretation which gives rise to the application
of the cy-près doctrine is to be app~i eerd in the interpretation of
Article 6 of the Mandate. . ·
· As we pointed out in the review to whiéh1 referred before, Mr. ·Presi
dent, before thecy~pr d ostrine can be applied in municipal institutions
where it does apply, there is to be a finding by the court that the donor
inthe particular case was motivated by an o_ver-ridingcharitable intent
transcending the mode of its operation. We give the authorities on that
point in the Oral Proccedings at pagesn8~II 9VII) ..In ether words, the
court, in such cases where it is said that thcy-prèsis to be appJied, has
to satisfy. itself first of all on this question of the intent of the donor. :It
has to decide on ordinary principles of interpretatiodid the donor have
a general over-riding charitable intent, and was this particular institution
mentioned by the donor, therefore, just a means of giving effect to that
intent, or was the intent of the donor indeed inseverably connected with
a particular institution, sosto apply to that institution and to no other?
In the former event there is scope for the application of the doctrine;
in the latter there is no scope for its application and the courts do not
then apply it. That appears very clearly from the authorities which we
cite inthe part of the Oral Proceedings of1962 to which 1 have referred.
So by analogy with the facts of the present cas!~I Pr.sident, it would
be necessary to find, first, on ordinary principles of interpretatiothat
there was an over-riding intent on the part of the founders of the man
dates system to crcate international supervision, as distinct from super
vision by specifie organs. It brings us back to that same basic conflict
between the Applicants and ourselves as to the manner in which Article 6
is to be interpreted and what effect is to be given toit in law.
So the doctrine cannot assist the Applicants. The doctrine would have
been applicable only if that issue, which is a straightforward issue of
interpretation and application, werc first resolved in the Applicants'
faveur; then there would, in the analogous circumstances in municipal
systems, have been a basis for the application of a cy-près doctrine.
However, Mr. President, the doctrine itself cannat assist the Applicants
in the interpretationfor which they contend. The reverse really applies.
Such an interpretation must be justified on ordinary principles before
there can be any application of such a doctrine. Therefore, the reference
to the cy-prèsdoctrine does not, in any way, assist the Applicants.
Now, Mr. President, I proceed to consider the 1950 Opinion and the
1962 Judgment of the Court in their effect on the issues regarding Article
6 of the Mandate.
The Applicants in their Memorials, Mr. President, sought to givc sorne
effect, similarto that ofres judicata,to the 1950 Opinion. In the Oral
Proceedings on the Preliminary Objections (VII), at pages 21-2-J.thesz6 SOUTH WEST AFRICA
Respondent dealt with this submission very fully in an exposition which
was, for convenience, repeated in the Counter-Memorial. We find it in
the Connter-Memorial (II), pages 98-roz. In the Counter-Memorial we
gave consideration also to the effect of an earlier judgment on prelimi
nary objections-what effect that has on the same issues as they arise
later in the same case. That is dealt with in the same volume at pages
102-103. Our contention was as follows:
"Findings made in a judgment on preliminary objections would
naturally carry great weight where the subject-matter of the findings
are in issue on the merits. Nevertheless the Court would always
entertain arguments directed towards persuading it to depart from
its previous judgment, and would come to a different conclusion
where sound reasons exist therefore."
Mr. President, although this contention was stated more particularly
with respect to a previous judgment on preliminary objections, the words
in issue also refiectur contention in regard to the weight which should
be given to an earlier advisory opinion. We stress that in the ordinary
course great weight as a precedent and an authority would be given to
such findings, in preliminary objections, opinions or judgments, and in an
advisory opinion, but there may be certain circumstances in which the
Court may find itself compelled to depart from the conclusions arrived at.
Faced, Mr. President, with these fully motivated statements of
Respondent's submission, the Applicants did not, whether in the Oral
Proceedings on the Preliminary Objections, or in the Reply, or in the
Oral Proceedings on the MerHs here, seek to support the attitude adopted
by them in the Memorials-the attitude, that is, of giving to the pro
nouncements in an advisory opinion a similar effect to that of res judicata.
In the Reply, the Applicants adopted a new attitude, but it was a
completely inconsistent one. They conceded, on the one hand, and I refer
to the Reply (IV) at page 522, Respondent's privilege to reassert in a
contentions proceeding submissions contrary to the findings in the
previous Advisory Opinion and Judgment on the Preliminary Objections.
There they made the concession that Respondent has the privilege to
reassert its previous submission, even though its terms were contrary to
the Opinion and the Judgment.
On the other hand, they contended in the Reply (IV), at page 552,
that the matters decided in these proceedings are to be regarded as res
judicata.
In our Rejoinder, V, pages 15-16, we pointed out this inconsistency,
but the Applicants have still not clarified their attitude in the present
oral proceedings. They have not indicated which of those two attitudes
they actually adopt. We assume, Mr. President, that they do not adopta
definite attitude on res judicata, in view of the concession which they
made in the Reply, and the fact that they have presented no argument
either in the Reply or in these proceedings to support the contention of
res judicata. We shall, therefore, assume that they do not advance such a
contention and 1 shaH not address myself to any such proposition. \Ve
shaH limit ourselves to submitting that that contention would be unten
able for the reasons and on the strength of the authority set out and
discussed in the relevant part of the Counter-Memorial.
So on that basis, that the Court will be prepared to reconsider the
matter in arder to see whether there is sound reason for departing from ARGUMEXT OF MR. DE VILLIERS
conclusions previously arrived at in either of these instances, on that
basis 1 proceed to discuss the previous Advisory Opinion and the Judg
ment on the Preliminary Objections in regard to their content.
Before 1 make any submissions at ail on the question whether any of
these conclusions are to be followed or not to be followed by the Court
in the present case, it may be convenient to examine first of all what were
the findings and the implications relevant to the issues at present before
the Court.
In regard to the rgso Opinion this presents no difficulty. The Court
held, in express terms: ·
"... that the Union of South Africa continues to have the inter
national obligations stated in Article 22 of the Covenant of the
League of Nations and in the Mandate for South-West Africa as well
as the obligation to transmit petitions 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 ... " (I.C.]. Reports rgso. p. 143.)
lt is quite clear, 1\h. President, that the submission which we advanced
to the Court on the question of Article 6--the question of supervisory
jurisdiction-furnishing of reports and petitions-is directly contrary
to the finding of the Court in the 1950 Opinion. For the reasons, which 1
shaH advance presently, the Respondent will, with the greatest respect,
ask this Court not to follow the 1950 Opinion in that particular respect.
The rg6z Judgment and opinions, Mr. President, are in an entirely
different position. In the Preliminary Objections proceedings the con
tinued existence of Article 6 was not a matter which necessarily required
a decision per se. 1t was raised by the Parties as being a relevant con
sideration upon which the Court could come to conclusions on the issues
regarding jurisdiction, depending on particular views which the Court
might take on certain aspects of the matter.
For that reason there was full argument on the question whether there
was succession of the United Nations to the League's functions in respect
of Article6. It was certainly fully argued from our side and the Applicants
also stated their contentions in the Observations and in the oral argument
to the extent of relying on the reasoning of the Court in rgso in that
regard, and the issues were fully brought out before the Court in the
arguments. But the relevance, as I have said, of that issue, would depend
on the views which the Court, or Members of the Court, might take on
other issues and other questions in those Preliminary Objections pro
ceedings.
In the result, all the Members of the Court did not make express
findings in regard to the issues of the existence of Article 6. Sorne did,
sorne did not. On the basis of an analysis of the Judgment and the
separate opinions, we submitted in our Counter-Memorial, Il, page 153.
as follows:
"... four Members of the Court (Judges Bustamante, Spender ..
Fitzmaurice and van Wyk) expressed a clear view that Article 6
had lapsed OI)dissolution of the League. The other eleven Judges did
not deal expressly with this point; but the findings or reasoning of
seven of them are to a greater or lesser extent inconsistent with any
survival of the Mandatory's procedural obligations. They are Judges
Alfaro, Badawi, Moreno Quintana, Wellington Koo, Koretsky,528 SOUTH WEST AFRICA
Jessup and Mbanefo. In respect of the remaining four Judges (i.e.,
President Winiarski and Judges Basdevant, Spiropoulos and
Morelli) no indications are in this regard afforded by theirOpinions.''
That was the analysis we gave, l\ir. President, and the conclusion we
arrived at after analysis, in our pleadings.
Mr. President, the Applicants, without joining issue with us on this
analysis of the Judgment and of the opinions, nevertheless state in their
Reply that the Judgment provides support for their contentions. We
find that stated in the Reply (IV) at pages 522-524, 539 and 552. We
passed comment in the Rejoinder on this attitude on the part of the
Applicants of ignoring our expositions-our analyses-but simply
stating that the Judgment provided support for their contentions. The
Applicants' reaction, we have now beard in these Oral Proceedings, and
here they stated as follows in the verbatim record at page 172, supra:
· "... the C"aurt'sreasons and conclusions in both the 1950 Opinion
and the 1962 Judgment speak for themselves, and do not require
analysis or exposition by the Applicants in this respect".
They proceeded to state this, however:
"lt is submitted that the Respondent's analyses of bath the 1950
Opinion and the 1962 Judgment are irreconcilable with their clear
intendment and actual purport."
Neverthelcss, ·l\ir. Pre~id teenAtp,licants now, for the first time,
devote sorne attention to attempts to show that the reasoning of the 1962
J udgment supports their contention. We find those attempts made in the
argument orally presented to the Court. But it will be noted that. they
limit their contentions to the Judgment, and also those which I have just
read to the Court. They do not deal with Respondent's contentions
regarding the effect of the varions separate opinions and it would appear
on the whole, therefore, Mr. President, that they do not contest. our
interpretation and analysis of those opinions. They have not stated their
attitude clearly in that regard. If this does not accord with their attitude
then I should like to hear what their attitude really is, but for the time
being it would appear that they do not contest our analyses of the
opinions themselves.
In this oral_address I shall, therefore, also limit myself to an examina
tian of the Judgment, with a few exceptions. There are one or two matters
to which I shall draw attention in regard to the separate opinions. But
before doing that, Mr. President, 1 want to emphasize that the four
judges who in their separate opinions expressed any definite view
regarding the continued existence, or otherwise, of Article 6, all four
stated that, in their opinion, Article 6 had lapsed. There was no explicit
statement or finding by any of the other judges to the contrai-y.
The same view as was expressly stated by the four judges in question,
l\ir. President, can be derived, though not expressly, but nevertheless, in
our submission, implicitly, from the opinions of Judges Jessup and Sir
Louis Mbanefo. We deal with an analysis of their opinions in the Connter
Memorial, Il, at pages r6r to 163. Those submissions, as I have said, have
not been contested thus far by the Applicants and I should liJ.ieto hear
what their attitude is.
It is in this respect that I want to depart slightly and refer to one or
two salient features in those opinions which are not fully seou~ in the
Counter-Memorial, and which I should like to stress as they appear to be ARGUMENT OF MR. DE VILLIERS 529
relevant in the light of the oral argument which has now been presented
to the Court from both sides.
l should like to refer first to the opinion of Judge Jessup, at pages 413
to 414 of the record of the 1962 JudgriJ.entand opinions. In the particular
passage the honourable Judge draws a distinction between the· type of
problem which arase in regard to Article 7 and that which arose in regard
to Article 6 on dissolution of the League. We contended, as the Court
will recall, in regard to Article 7, that there were similar problems to those
which arose in regard to Article 6__:problems which arase from the fact
that the competence to invoke the jurisdiction of a court was expressly
conferred on another Member of the League of Nations, and rriembership
of the League of Nations ceased on dissolution of the League. We referred
also to the problems that arose in regard to the fact that the court
mentioned was the Permanent Court and not the present Court.
In the passages to which I wish to refer the honourable Judge jessup
draws a distinction between the type of difficulty which arose in regard to
Article 7 and that which arose in regard to Article 6:
"Did Article 7 become inoperable? ln cf,mtrast to Article 6, where
the· organ-namely the Council of the League-disappeared, in
. Article 7 a new organ had been substituted for the old by the opera
tion of Article 37 of the Statute of the Court to which of course the
Mandatory was a party. That transformation took place on the birth
of the United Nations, and there can be no doubt that Article 7
provided for reference to this Court during that period from the
birth of the United Nations·to the death of the League. .
On the dissolution of the League. it is true there were no longer
States wliich were 'l\fembers of the League', but did this fact
frustrate performance? It has been shown that the disappearance
. of.the quality of Member did not make Article 5 inoperable and the
case is even stronger here since under Article 7 the Mandatory is not
the acter, is not the operator, soto speak. In sq far as concerns the
administration or operation of the Mandate, the disappearan'ce of the
Council of the League rnight be said to create a measure of frustration
in regard to the required acts of the Mandatory in fi.lingreports ..In
regard to Article 7, however, the new Court was available.ln contrast
to the United Nations system it willbe recalled that the Permanent
Court was not a part or organ of the League and the winding up of
the Court was separa te from the dissolution of the League ..For the
successful operation of the Mandate during the lifeof the Leaglie, the
quality of being a Meinber of the League was not necessary to the
operation of Article 7; as already shown there were quite other rea
sons for referring to the Members." (I.C.]. Reports I962, pp. 4I3-414.)
The line of reasoning appears to be this, that there were difficulties of
frustration arising from the disappearance of the organ referred to in
Article 6, namely the Council of the League, that for the reasons advanced
in the opinion, with which I need not deal at the moment, the same type
of mechanical difficulty did not arise in regard to membership of the
League and in regard to the question of a substitution of court. Those
were provided for in a manner not applicable to the case of the difficulty
which arose under Article 6. ·
In the case of the opinion of Sir Louis Mbanefo I wish to refer the
Court to a passage cited in the Counter-1\lemorial, II, at page 162. This530 SOUTH WEST AFRICA
was a finding in regard to the question of the compromissory clause of
Article 7:
"Although the League was dissolved, the Mandate still continues
and the rights and obligations embodied in it became, as it were,
maintained at the level at which they were on the dissolution of the
League. It is on this ground that the Respondent can justify its
right to continue to administer the territory and those States who
were Members of the League at the time of its dissolution the right
to continue to invoke the compromissory clause of Article 7· The
right to invoke Article 7 remained vested in those States who were
Members of the League at the time of its dissolution, and continues
notwithstanding the termination of the League's functions."
Mr. President, we point out that that reasoning that the rights and
obligations embodied in the Mandate became, as it were, maintained at
the level at which they were on the dissolution of the League could, by
way of contrast, never be applicable to the case of the problem which
arose under Article 6. That problem could not be overcome by the process
of maintaining rights and obligations at a certain leve!. The problem
could only be overcome by new arrangements involving, as the Applicants
themselves admit, new consent on the part of the mandatory to a sub
stitution of supervisory organs-a substitution which would involve a
completely different composition of organs and completely different
processes of supervisory machinery from those which had been ap
plicable during the time of the League. Therefore, this approach would
not be applicable to the problems raised by Article 6.
I proceed now, Mr. President, to deal with our contentions regard.ing
the Judgment. They were set out in the Counter-Memorial, Il, pages
156-16!.
The fi.rst contention we advance is that the Court's finding regarding
the form in which Article 7, paragraph 2,of the Mandate (the compromis
sory clause) was said to have survived the dissolution of the League, was
inconsistent with any finding of a substitution of supervisory organs. It
will be recalled, Mr. President, that the Applicants' main contention,
with a view to overcoming the difficulty of a reference in the compro
missory clause to another 1\Iember of the League of Nations, was a
contention of succession-they advanced two contentions in the alter
native. The main argument was one of succession-that a succession
occurred whereby the United Nations and its Members had succeeded
to the rights previously exercised in respect of mandates by the League
and its Members. The two went together-rights and powers of the
Organization, competence of the Members.
In the alternative, the Applicants advanced a contention of a carry
over, in terms of which the rights of States which werc Members of the
League at its dissolution remained, under Article 7 (2), even after such
dissolution.
It was apparent, 1\fr. President, that if this succession argument were
accepted it would have been of equal application to both Article 6 and
Article 7, for the reasons I have mentioned. They, indeed, were advanced
in that fonn-that it was because of a succession in regard to the powers
of the Organization that the succession also occurred in regard to the
competence of the 1\Iembers of the Organization.
On the other hand, in regard to this alternative argument-the carry- ARGUMENT OF MR. DE VILLIERS 531
over argument-not only would that be inapplicable to any concept of a
transfer of supervisory powers to the United Nations, it would in fact be
inconsistent therewith.
The Court will recall that the Court in 1962 did not follow or adopt the
Applicants' succession contention-not a single Member of the Court
adopted that contention for the purpose of overcoming the difficulties
pertaining in Article 7, paragraph 2. Instead the Court, in its Judgment,
applied, in effect, the carry-over argument. The express finding of the
Court was stated as follows, in the I.C.f. Reports I962, at page 338:
"Those States who were Members of the League at the time of its
dissolution continue to have the right to invoke the compulsory
jurisdiction of the Court, as they had the right ta do before the
dissolution of the League."
I shall deallater with the reasoning by which the Court arrived at this
result. At present I am only concemed with the effect of this finding.
As we have stated, Mr. President, the finding by its very nature
cannat support the Applicants' contention. It is, indeed, as a matter of
logic, diametrically opposed ta the Applicants' present contention of a
succession regarding supervisory powers, or a substitution of supervisory
organs, in whichever way they prefer ta put it. The finding of the main
tenance by States. in their priva te capacities, of rights which they prev
iously held in their capacities as Members of the League, provides at the
lowest, no support for a contention that the rights of the League organs
passed over to the organs of the United Nations. The two things are
unrelated, putting them at the lowest. The mere fact that the Court finds
here that the States which were previously Members of the League could
continue, because they had been Members of the League, to exercise
certain rights, and not because of present membership of the United
Nations, makes it clear that the Court's finding was not based on any
concept of a succession nature and it, therefore, provides, at the lowest,
no support for the contention of a succession nature, or substitution of
supervisory organs, as advanced by the Applicants. But when we go
further, Mr. President, and when we have regard ta the basis of the
Court's finding, on the one hand, and, on the other hand, the basis of the
Applicants' argument, it becomes clear that these two propositions-the
finding of the Court and the Applicants' present contention-are really
irreconcilable.
The Court held, firstly, on the basis of an interpretation of the Mandate
documents and in conjunction therewith on the basis of an agreement
said to have been agreed in the years 1945-1946, that the competence to
institute proceedings remained vested in States which were Members of
the League, as at the time of its dissolution.
The Applicants contend, on the basis of an interpretation of the same
mandate documents, and on the basis of an agreement said to have been
reached in the same years {1945-1946) among the same parties, and
evidenced by the same material as that relied upon by the Court, that the
League's supervisory functions are now, pursuant to a substitution, to be
exercised by the United Nations.
Ifone tries to reconcile these two propositions, Mr. President, one
finds this anomalous result-that the authors of the League and the
parties in 1945 or 1946 intended to split up two methods which are said
to constitute forms of protection of the sacred trust. After dissolution of532 SOUTH WEST AFRICA
the League (if we follow this attempted reconciliation) judicial protection
would remam in the bands of a static number of States-a number of
States which were Members of the League as at a particular date. That
number of States might not, and, as we know, they, in fact, do not,
coincide at all with the States that are Members of the Organization
which is now said to exercise the administrative supervision. ln other
words, the group of States that can invoke j1,1.risdictioof the Court-that
one form of protection-that is a group which is distinct from the group
of States which comprise the Organization that is to exercise the adminis
trative supervision.
··This, Mr. President, on the basis of the reasoning of the Court in rg6z,
would constitute a material modification of the whole purpose of the
Mandate, because the Court held in rg6z that the compromissory Clause
was intended, in the ultimate analysis, to impose on the mandatory the
will of the authority exercising administrative supervision. That was one
of the basic findings of the Court, namely that the purpose of the com
promissory clause was to make it possible that the will of the Organization
exercising the administrative function could be imposed upon the manda
tory. Judicial supervision and administrative supervision, therefore, had
to go hand-in-hand, for that purpose. And now we find, if we try to
reconciJe the two -attHudes-,-the finding of the Court in rg6z about
competence to invoke the jurisdiction of the Court, and the present
contention of the Applicants about the administrative supervision-that
those two things are separated. .
A splitting up of the functions in the way which would follow the
Applicants' argument, would consequently run directly counter to the
Court's Judgment in rg62, for it would mean that the interconnection
found by the Court between Articles 6 and 7 did not exist, or would be
immaterial. lt would also impute, Mr. President, absolute irrationality
to the parties to the alleged agreement in 1945 and rg46-an irrational
agreement which would have to be inferred by necessary implication
from the facts. We discussed this topic fully in the Counter-Memorial,
Il, pages rs6-rs8, and I have not heard any reply from the Applicants in
this regard. .
We submit, therefore, Mr. President, that, for these reasons, the mere
anomal y which would result, as a matter of effect, from trying to reconcile
the Applicants' contention with the Court's finding, indicates the extent
to which this contention is now in conftict with the finding of the Court
that is as regards its effect. Nevertheless, without dealing with this
question at all, the Applicants still assert that the Judgment supports
them. But before dealing with that, I should like to pass on to the
reasoning whereby the Court reached its conclusion, and 1 submit that
that is as equally inconsistent with the Applicants' contention as is the
effect of the conclusion at which the Court arrived. lt will be recalled,
Mr. President, that three factors were relied upon specifically by the
Court for its finding that competence to invoke the compromissory
clause rcmained vested in States which were Members of the League at
the time of its dissolution. The thrce factors wcre:
r. The essentiality of the judicial protection of the sacred trust.
(I.C.]. Reports I962, pp. 336-337.)
2. The reliability of judicial protection. (Ibid., pp. 337-338.)
3· The conclusion of an agreement in 1946 to maintain the rights of ARGUME~T OF MR. DE VILLIERS 533
the Members of the League notwithstanding the dissolution of the League
itself:(Ibid.,pp. 338-342.) ,
Mr. President, I should like to refer to the implications of each of
these findings. The essentiality relied upon by the Court arose from the
circumstances that under. the League of Nations unanimity was rcquired
for Council resolutions. The Court held that right of recourse to the Çourt
was granted in order to enforce the will of the Council against arecalcitrant
Mandatory. The Mandatory, so it was argued, could block the effective
taking of Council resolutions and the effective execution thercof, because
of the principle of unanimity, and it was therefore necessary, in order to
make this whole process of control over the Mandatory an effective one,
that there had to be recourse to judicial process whereby the will of the
Council could then be enforced upon the Mandatory. This line of rcason
ing, as we .have shown, entirely negatives any prospect that the parties
in 1945 or in 1946 would have intended to split up the two types of
supervision held to have had an inter-connected purpose.
The reasoning regarding reliability we find in the I.C.J. Reports r962,
at pages 337-338. It reads, inter alia,as follows:
"... besides the essentiality of judicial protection for the sacred
trust ... the right to implead the· Mandatory Power before the
Permanent Court was specially ·and expressly coriferred on the
Members of the League, evidently also because it was the most
reliable procedure of ensuring· protection by the Court, whatever
might happen to or arise from the machinery of administrative
supervision." · ·
That is the concept of reliability as stated by the Court. Now 1 should
liketo refer to the .first few words, "besides the essentiality of judicial
protection for the sacred trust'\ Those words indicate, Mr. President,
that this concept of reliability was a factor which the Court invoked in
addition to the argument of essentiality. It was an argument which stood
Îl}dependently of the argument of essentiality; it was not a mere re
statement or an example of application of the principle of essentiality.
1 mention that particularly because of a form one of the arguments took
which has been advanced by my learned friends, and 1 shall revert toits
significance later. Secondly, 1wish to stress the last words in this passage,
"whatever might happen to or arise from the machinery of administrative
supervision". The passage thereforc shows that the reliability of judicial
protection was important inasmuch as circumstances might arise in
which something "might happen to or arise from the machinery of
administrative supervision". The Court considered. therefore, that
whatever might happen to that machinery, the judicial protection would
still stand.
M.r. President, the significance of this idea in the Court's reasoning
becomes apparent if regard is bad to the factor that reliability, as stated
by the Court, was advanced as a concept standing indepcndently of essen
tiality. It follows that judicial protection was not conceived to be reliable
because it could cope only with the situation of frustration where the
MandatOI}'could not agree to unanimous resolutions of the Council. That
was a factor relied upon by the Court for sayin,g that it was essential in
the mandates system to have judicial protection in addition to the
administrative supervision. But when it cornes to reliability, the view of
the Court was that judicial protection could operate in circumstances534 SOUTH WEST AFRlCA
where, for reasons other than lack of co-operation on the part of the
Mandatory, the "machinery of administrative supervision" could not
function properly, or could not function at all. It follows, therefore, if we
look at this concept of operatingwhere that machinery could not function,
that it was not in the circumstances of a frustration in the procedure
itself.lt pre-supposes, Mr. President, that something else must have
happened, that for sorne reason the whole machinery of administrative
supervision could fail, and the judicial protection could still stand.
In its context the import of the Court's reasoning in the passage is,
consequently, unmistakeable. It is that judicial protection was designed
to be effective even in circumstances where the machinery of administra
tive supervision lapsed, or became inoperative. And the reference to, and
the emphasis upon, the applicability of the feature of reliability, demon
strates that the Court considered that this quality of reliability was
relevant to the present circumstances, that is, that the machinery of
administrative supervision had indeed, in the Court's view, broken down.
The Court gave this weight to the factor of reliability of the judicial
protection as a reason for coming to the conclusion that the judicial
protection was intended to survive. It gave that weight to the consider
ation with reference to the facts ofthis particular case; it gave that weight,
therefore, in our submission, with reference to an actual contemplation
that something had happened to the machinery for administrative
supervision-that that might indeed, in the Court's view, have broken
down.
The Applicants apparently did not realize that the Court's reliance
on reliability of judicial protection constituted a separate line of reason
ing. They apparently interpreted that as being merely part of the state
ment of the Court's concept of the essentiality of judicial protection, and
they consequently contended as follows, in the verbatim record at page
I78,supra:
"The history of the dispute now before the Court, Mr. President,
in which the normal security for the protection of the rights of the
inhabitants has been frustrated by virtue of Respondent's failure and
refusai to discharge its obligation to submit to international super
vision, even white retaining rights under the Mandate, underscores
the significance of the Court's description of the right to implead the
mandatory before the Court as (what the Court described as) 'the
most reliable procedure of ensuring protection by the Court what
ever might happen to or arise from the machinery of adminis
trative supervision."
The Court will see that in this passage the Applicants attempt to
equate the first ground upon which the Court relied, the essentiality,
With the second ground, the reliabiiity. In our submission this equation
is quite unjustified, because the Court itself distinguished between the
two.
At this point it may be convenient, Mr. President, to refer to another
argument advanced by the Applicants, which is rendered as follows at
page 124, supra, of the verbatim record, but which also appears elsewhere.
It reads at page 124:
"It is submitted that, in view of the relationship between Articles
6 and 7, it is thus implicit in this honourable Court's holding and in
views expressed by the learned judges that if,and since, Article 7 ARGUMEI'\T OF :'.iDE VILLIERS 535
has been held by the Court to be in effect it would seem that Article 6,
by reason, logic and practical necessity, should also be concluded to
have remained in effect."
We find references to the same line of argument also in the verbatim
record at page 178, supra, and at pages r87-r88, supra. From what I
have just said, Mr. President, it will be evident that this argument ignores
the Court's reasoning regarding the reliability of judicial protection.
The reasoning of the Court on this question of reliability of judicial
protection postulates and stresses as one of the features of the so-called
judicial protection, that it could continue to operate even where the
machinery of administrative supervision was for one reason or another
out of action, a consideration which runs directly counter to the Appli
cants' suggestion that,if the judicial protection survived, the administra
tive protection must therefore, also have survived. On that point there
is a very clear conflict of reasoning between the Applicants and the
Court in 1962.
On the Court's reasoning, there would not appear to be any reason or
logic for supposing that a finding that Article 7 has survived necessarily
involves a finding that Article 6 has survived, particularly not in view of
the basic difference in the form in which Article 6 is said to have survived
by the Applicants, as compared with the form in which the Court held
that Article 7 has survived.
The third ground, Mr. President, relied upon by the Court for coming
toits conclusion regarding the compromissory clause, was an agreement
among all Members of the League of Nations in 1946, and in regard to
this agreement 1 have already pointed out that its content is irreconcilable
with the Applicants' present contentions. When 1 say content, I mean its
effect in keeping the competence to invoke the Court's jurisdiction
vested in a static group of States which were Members of the League at
the time of its dissolution, and in not finding that that competence was
vested in Members of the United Nations.
But, Mr. President, when we pass over to the reasoning of the Court in
support of this finding of an agreement, and explanatory of the finding,
then we find that that even more clearly negatives any result such as is
contended for by the Applicants. The object of the agreement, as found
by the Court, was as stated in the Judgment at page 338:
"... to continue the different Mandates as far as it was practically
feasible or operable with reference to the obligations of the l\landa
tory Powers and therefore to maintain the rights of the Members
of the League, notwithstanding dissolution of the League itself".
The Judgment then proceeds to state at page 339 that discussions
were held "to find ways and means of meeting the difficulties and making
up for the imperfections as far as was practicable". Later, at page 342,
the agreement is said "to maintain the status quo as far as possible in
regard to the Mandates". A very significant passage appears at page 341:
"It is clear from the foregoing account that there was a unanimous
agreement among aU the Member States present at the Assembly
meeting that the Mandates should be continued to be exerciscd in
accordance with the obligations therein defined although the
dissolution of the League, in the words of the representative of
South Africa at the meeting, 'will necessarily preclude complete
compliance with the letter of the Mandate', i.e. notwithstanding the SOUTH WEST AFRICA
fact that sorne organs of the League like the Council and the Perma
nent Mandates Commission would be missing. In other words the
common understanding of the Member States in the Assembly
-including the Mandatory Powers---in passing the said resolution,
was to continue the Mandates, however imperfect the whole system
would be after the League's dissolution, and as much as it would
be operable, until other arrangements were agreed upon by the
Mandatory Powers with the United Nations concerning their
respective Mandates."
I emphasize these words, Mr. President: "however imperfect the whole
system would be after the League's dissolution, and as muchas it would
be operable." Clearly, they impute a contemplation that, despite this
agreement, despite what it provided for, there would still be sorne aspects
in which the whole system would be imperfect after the League's dissolu
tion. There would still be parts of it which would not be operable because
the agreement applied only to "as muchas it would be operable".
We discussed these aspects in the Counter-1\Iemorial, ll, pp. 157-159.
and we concluded, Mr. President, that the.reasoning was entirely incon
sistent with any contention that the same agreement could have effected
a transfer of supervisory functions to the United Nations. We stressed
these very two elements which I have mentioned, namely the imperfec
tion, and the "as rouch as it would be operable". In this last passage
which I quoted, the imperfection and the incompleteness, if 1 may cali
it that, are related directly to the disappearance of the organs èxercising
administrative supervision. If there had been an agreement, and· if the
Court contemplated that there had been an agreement whereby super
vision had been transferred to the United Nations, or whereby thè United
Nations had been substituted as a supervisory organ, then, surely, the
imperfection would have been cured-it would no longer have been
necessary to speak of a system which would operate imperfectly, or of as
much of it as would be operable. It seems clear, therefore, Mr. President,
that the Court did not regard that such a transfer or a substitution of
organs was effected by the agreement which it found ~o have been
concluded. · .
The Applicants in their oral statement to this Court skate very lightly
over this argument. They say: :
"The Court's references to feasibility or operability corresponded
to the objective realities of the situation caused by the demise of the
League, to wit, the necessity to substitute the existing supervisory
organs with others, and specifically, the substitution of the United
Nations for the League. That such substitution was both practically
feasible and operable is beyond dispute, inasmuch as the United
Nations, then in existence, had:
'another international organ performing similar, though not
identical, supervisory functions ... [and was] legally qualified to
exercise the supervisory functions previously exercised by the
League of Nations with regard to the administration of the
Territory ... (I.C.J. Reports I950, pp. 136, 137.)'
Accordingly, the United Nations was in a condition and in a
position to replace the League of Nations both from a feasible and
operable standpoint." (P. 215, supra.) ARGUMENT OF MR. DE VILLIERS 537
And on the same page the Applicants' Agent continued:
"The Court's qualifications, such as the phrase 'however imperfect
the whole system would be', or 'as much as it would be operable',
referred, in the Applicants' respectful· submission, to the obvious
fact-which the Court noted in the sentence preceding the quoted
language-that '... sorne organs of the League like the Council and
the Permanent Mandates Commission would be missing'. As the
Court also noted, this fact necessarily precluded 'complete corn~
pliance with the letter of the Mandate'."
Mr. President, 1 submit that these two quotations from my Jearned
friend'sargument exactly establish our contention. If it is accepted that
the United Nations could provide a complete and adequate substitute
for the League regarding supervision in respect of mandates, then these
qualifications employed by the Court can be explained only on the basis
that it did not consider that supervision wouldpass to the United Nations;
otherwise the qualifications contemplated by the Court would not have
applied at aU-they would not make sense in the Court's reasoning. This
isthe point which is not met by the Applicants. The very fact that there
was this other organ that would be competent to undertake supervision,
if asked to do so, if satisfactory arrangements could be made in that
regard, makes it clear that the Court could not have contemplated that
that organ had been substituted, by agreement or otherwise. Otherwise
the Court could not possibly have spoken of the incompleteness of the
system to operate under this agreement.
The furthest the Applicants go in attempting to meet this diffi.culty
and in attempting to reconcile the Court's reasoning with their argument,
is to assert, without argument:
"... that the same considerations, and full parity of reasoning [as
that employed by the Court regarding Article 7 (2)],applies to
interpretation of Article 6 and Article 7. paragraph r, in respect of
the matter under discussion". (P. 215, supra.)
As has been shown, Mr. President, this is a bold statement, but complete!y
unsubstantiated, and it is quite untenable.
In considering the reasoning of the Court, we have dealt with the
element of incompleteness, or imperfection which, as the Court stressed,
would inhere in the Mandate after dissolution of the League, despite this
agreement, which the Court found. But a further aspect of the reasoning
of the Court, which is, in our submission, inconsistent with the Applicants'
argument, and closely related, is its statement that the purpose of the
agreement in April 1946 was, in the Court's view, not to create new rights,
but merely to "maintain the status quo" or "maintain the rights of
Members of the League" ~intain the rights of Members of the League
maintain the status quo.
Now, Mr. President, an agreement of this content could conceivably be
said to apply so as to serve to perpetuate in favour of States, in their
individual capacities, the competence to invoke the compromissory
clause-a competence which had been previously vested in them in their
capacities as Members of the League. But, Mr. President, it could
obviously not have the effect of providing a new body to exercise adminis
trative supervision. Particularly, 1\fr. President, that could ~ot apply
where the purpose of this agreement, as the Court saw it, was to cater
only for the interim period until other arrangements were agreed upon SOUTH WEST AFRICA
with the United Nations. The Court knew of resolution XIV of the
United Nations General Assembly, in regard to a transfer or an assump
tion of political powersby the United Nations. The Court knew that the
United Nations had reserved to its own organs the right to decide in
each particular case wh ether it wantedto assume such political funetions,
on due application being made by a party, and on a decision then being
given by the United Nations. Therefore, the Court knew that special
arrangements of that kind, involving a decision of the United Nations
itself, would be required in order to effect a substitution of supervisory
organs, or a transfer of powers in that regard. Therefore, Mr. President,
the Court, seeing this agreement as an arrangement invo]ving only the
Members of the League at its final session, and involving a mere mainte
nance of a status quo, could never have conceived that that agreement
would have included this positive new arrangement, which would have
been necessary in order to effect a substitution of supervisory organs.
[Public hearing of r2 April r965]j
Mr. President and honourable Members, in order to resume from where
we left off on Friday afternoon 1 have to recapitulate very briefty the
gist of what was contained in the last few minutes' argument that
afternoon.
1 dealt, Mr. President, with the 1962 Judgment of this Court on the
Preliminary Objections which had been filed .by the Respondent in these
proceedings-preliminary objections on the question of the jurisdiction
of this Court. 1 dealt with that Judgment in so far as it is relevant to the
issue now under consideration, namely the lapse, or otherwise, of Respon
dent's obligation of accountability under Article 6 of the Mandate. I dealt,
Mr. President, with the part of the Judgment which sets out a finding of
an agreement in April 1946 between ali Members of the League in terms
of which the compromissory clause in Article 7, paragraph 2, of the
~Ianda tas kept alive, notwithstanding the dissolution of the League.
I dealt with certain aspects of the reasoning of the Court in regard to that
agreement. 1 pointed out that that reasoning was, in major respects, in
conftict withany contemplation on the part of the Court, or of the parties
to that agreement, that there had been, or would be, a substitution of
supervisory organs in respect of administrative supervision over the
Mandate. I consequently pointed out that the reasoning of the Court in
that respect was also directly in conftict with the contentions of the
Applicants now addressed to the Court in regard to such a suggested
substitution of supervisory organs.
I demonstrated this point of conftict, Mr. President, with particular
reference to two elements in the reasoning. The first element was that
which attributed an incompleteness and an imperfection to the system
which was to operate in pursuance of this agreement. I pointed out that
the Court contemplated, and apparently considered, that the parties to
this agreement in April 1946 contemplated that, after the dissolution of
the League, the whole system would work and opera te incompletely and
with imperfections, that is as much of it as might be operable. 1submitted
that the only factor to which this incomplete operation could refer, on
analysis, would be that of supervision and accountability. If one pre
supposes that there was a substitution of supervisory organs, or if the
agreement had provided for a substitution of supervisory organs, there ARGUMENT OF MR. DE VILLIERS 539
would have been no imperfection-no incompleteness whatsoever-in
the operation of that agreement and of the whole system, as visualized
by the Court.
The second element of importance in that regard was the fact that the
effect and the purpose of the agreement, as described by the Court, was
not to create new rights, or new obligations, or new arrangements, and,
in particular, arrangements between the United Nations and the respec
tive mandatory powers. As the Court itself said, at page 342 of the Judg
ment, the contemplation was that such arrangements would be "agreed
between the United Nations and the respective mandatory powers". The
purpose of the agreement which the Court found to have been entered
into was, on the contrary, merely-
"... to maintain the status quo as far as possible in regard to the
Mandates pending other arrangements agreed between the United
Nations and the respective Mandatory Powers ... ". (I.C.J. Reports
I962, p. 342.)
Consequently, Mr. President, a substitution of the General Assembly
ofthe United Nations for the Council of the League as the supervisory
authority in respect of mandates, would have been par excellence an
arrangement that would have had to be agreed between the United
Nations and the respective manda tories. I t was not something which was
contemplated by the Court as having been provided for in this agreement,
which was merely intended to maintain the status quo. It follows, amongst
other things, Mr. President, from resolution XIV of the General Assembly
of the United Nations, of February 1946-from the part dealing with
political powers and fWlctions, namely part III, r (c)-that the United
Nations had reserved to itself, and toits own organs, the right of deciding
in each particular instance whether it would, or would not, agree to a
new arrangement about fonctions of a political nature, which would
include the case of Mandates.
The Court was aware of that in 1962, and the League Assembly was
aware of it in 1946. Consequently, Mr. President, the description of the
purpose of the agreement as being limited to maintenance of the status
quo for the interim period and also, in the words of the Court, to "main
tain the rights of Members of the League" for that period, shows that the
agreement, in the Court's contemplation, did not provide for a substi
tution of supervisory organs. That was the stage to which we came at the
adjournment on Friday.
Now we find that, despite these very clear indications afforded by the
Court's own reasoning, the Applicants contend to the contrary. A propos
of this very finding in the Judgment, namely that the agreement was
to maintain the ''status quo as far as possible", they state in the verbatim
record at page 2r6, supra:
"The maintenance of the status quo as far as possible must have
included the substitution of the United Nations for the League ... "
Mr. President, in this submission the Applicants, consequently, not
only ignore the words "as far as possible", which relate to the imperfec
tion with which I dealt earlier, but also suggestthatthemaintenance ofthe
status quo could be equated with the creation of entirely new arrange
ments, involving the need of co-operation of another party in arder to
bring it about, the other party being the United Nations itself, as I have 540 SOUTH WEST AFRICA
pointed out. Mr. President, this, in my submission, is an entirely Wlten-
able construction of the rg6z Judgment. .
lt is further to be noted that the Applicants, in regard to this submis
sion of theirs, refer only to the status quo formulation by the Court. The
Applicants ignore other formulations which the Court used as being
synonomous with that formulation, such as, for instance, "maintain the
rights of Members of the League". A phrase like that would, in our sub
mission, be even less capable of supporting the strange construction
which is placed upon the Judgment by the Applicants. The concept of
maintaining the rights of the M.embers of the League could surely not be
equated with the creation of a new relationship pertaining to supervision
of the mandatory administration by the United Nations Organization. I
was not aware of the fact that the rights of Members of the League, which
were being maintained, could in any way include anything pertaining to
supervision by the United Nations. Surely, if their rights were to be seen
as relating to anything in that direction, there would have had to be a
new arrangement and not merely a maintenance of the status quo or a
maintenance of existing rights of Members of the League.
Those then, Mr. President, are the rcasons why, in our submission, the
1962 Judgment is inconsistent with the Applicants' contentions. The
Applicants' answers thereto are, for the reasons we have given, untenable,
in our submission, and I should like to refer, further, to one or two other
arguments raised by the Applicants in this regard.
On the first day of his argument (r8 March 1965), Mr. Gross, my learned
friend, for the Applicants, stated according to the verbatim record, at
page IJI, supra, that:
"The Court in 1962 did not expressly hold that the United
Nations General Assembly has replaced the League Council as the
supervisory organ, inasmuch as that issue did not arise directly
and pertinently for explicit decision in that form. However, the
Court's holding, ... 'that the Mandate as a whole is still in force',
coupled with its finding that 'ail important facts were stated or
referred to in the proceedings before the Court in 1950' rcnders it
clcar beyond <_l.oubti,n the Applicants' respectful submission, that
the Court in rg62, at the minimum, reaffi.rmed the rationale of the
1950 Advisory Opinion in respect of the survival of Article 6 ... "
The Court will have observed that this submission relies on two
elements, namely firstly, the Court's statement, that the Mandate, as a
whole, was still in force, and, secondly, the Court's statement that all
important facts were stated, or referred to, in the proceedings before the
Court in 1950. I want to deal with these two elements in inverse order..
It will be noted, Mr. President, that the passage concerning "ali im
portant facts", was not in its context a reference to the question whether
administrative supervision under the Mandate did or did not survive the
League. It was in the context purely a reference to the question whether
judicial protection, as it was called by the Court, survived the League.
That we find very clearly expressed at page 334 of the 1962 Judgment,
where it is put as follows: . · , . · .
'"The \lllanimous holding of the Court in 1950 on the survival and
continuing effect of Article 7 of the Mandate, continues to reflect the
Court's opinion today. Nothing has since occurred which would
warrant the Court reconsidering it. All important facts were stated ARGUMENT OF MR. DE VILLIERS 54I.
or referred to in the proceedings before the Court in 1950." (I.C.].
Reports rg6z, p. 33+) .
It will consequently be clear, Mr. President, that this sentence relied
upon by the Applicants in terms referred only to Article 7, and not to
Article 6. It may, of course, be possible that the Court, in making this
statement, also had in mind the Respondent's contention regarding new
facts in relation to Article 6. But even if it did, Mr. President, it could
hardly have failed to distinguish between the two situations in that
regard-on the one band, the situation in regard to Article 6, in respeçt
of which certain facts were indeed not stated or referred to in the rgso
proceedings, and, on the other, the situation in regard to· Article 7, in
respect of which the position was different. .
Reverting, however, Mr. President, to the first point in this argument
of the Applicants, namely-the statement that the Mandate as a whole is
stilln force, I a:gain must point out that regard should be had to the
coritext in which this expression was used. One finds the statement itself
at page 335 of the Judgment, and it is very significant to note where it
occurs. It occurs at the end of a portion of the Judgment running over
three pages, that is, from page 332 and to page 335, and concluding with
this very sentence:
"The validity of Article 7, in the Court's view, ·wasnot affected by
·the dissolution of the League, just as the Mandate as a whole is still
in force for the reasons stated above." (I.C.J. Reports I962, p. 335-)
That .concluded the consideration the Court gave to the Respondent's
fust objection to jurisdiction as it was then advanced to the Court. ·
The Court had, for the purpose of considering the first and the second
objeCtions, to draw a distinction between two propositions which we
advanced at the time. The first proposition was that the Mandate -as a
whole, including Article 7 thereof, had ceased to be a treaty or convention
in force; and the second was that Article 7 itself had ceased to be a
treaty or convention, or was, at any rate, not applicable to the circum
staf).ces of this case. I refer the Court to the Oral Proceedings in 1962 to
indicate exactly what terminology was used in that regard in the argu
ment, and I submit that the simple explanation of this passage in the
Co).lrt's reasoning is that it followed· that terminology. .
At pages 29 to 30 of the Oral Proceedings (VII) of I962 I referrèd to
the first two objections to jurisdiction raised at the time, and I stated
their broad effect as follows:
"The first concerns the proposition that as a result of the dissolution
of the League the Mandate Agreement, as a whole, including Article
7, has ceased to be a treaty or convention in force within the meanit:~g
of Article 37 of the Statute of the Court. The second one concerns the
p:roposition that the Applicants are unable to bring themselves
\VÎthin.the expression .'anothèr Member of the League of Nations'
for puiposes of Article 7 of the.Mandate Agreement. I wish to point
out at this stage that there are, in.effect, threealternativecontentions
wrapped up in these First a~d Second Objections." ·
And after dealing with other aspects of the matter I reverted to these
three. propositions and stated them as follows:
I. " .•.consequently, our first contention is ... that on dis.solu
tion of the League' the whole Mandate Agreement-and 'thus542 SOUTH WEST AFRICA
including Article 7 thereof---ceases to be a treaty or convention in
force within the meaning of Article 37 of the Statute of the Court".
(VII, p. JI.)
2. " •.. even if the Mandate could, in other respects, be said to be
still in force as a treaty or convention within the meaning of Article
37 of the Statute, Article 7 of the Mandate itself ceased to be so in
force". (Ibid., p. 32.)
The third contention was as then stated merely an alternative way of
putting the same argument and read-
3· "... that even if the Mandate, including Article 7 thereof,
could be said to be 'a treaty or convention in force', neither of the
Applicants is qualified to invoke it as 'another Member of the League
of Nations' within the meaning thereof". (Ibid.)
Mr. President, in that context it becomes perfectly clear that what the
Court dealt with in this portion of its Judgment, running from page 332
to page 335, was the first two of those contentions, advanced on behalf of
the Respondent at the time. And in the very next portion of the Judg
ment, at page 335, the Court went on to the third of the propositions,
stated by itas follows:
"The Second Objection of the Respondent consists mainly of an
argument which has been advanced in support of the First Objec
tion. It centres on the terrn 'another Member of the League of
Nations' in Article 7 ... "
Commencing this portion of the Judgment, at page 332, the Court
stated as follows:
"Since the Mandate in question bad the character of a treaty or
convention at its start, the next relevant question to consider is
whether this treaty or convention, with respect to the Mandate as a
whole including Article 7 thereof, or with respect to Article 7 itself,
is still in force."
These, then, are the questions to which the Court addressed itself in this
portion of its Judgment, and it stated its conclusion, as follows:
"The validity of Article 7, in the Court's view, was not affected by
the dissolution of the League, just as the Mandate as a whole is still
in force for the reasons stated above." (I.C.J. Reports Ig6z, p. 335.)
In that context, Mr. President, it becomes perfectly clear that the
sentence in the Court's conclusion relied upon by the Applicants, signified
no more than that the Court rejected both the se<>ondand the first of the
contentions which we advanced at the time in respect of the jurisdiction
issue.
This is the obvious reading of the Court's words, and it is fortified
further, Mr. President, by the fact that the Iast sentence ends with the
words "for the reasons stated above". If we analyse what went
before-the prior reasoning-we find no attention whatsoever to the
question whether Article 6 was still in force, or problems which arose in
regard to Article 6 as a result of the disappearance of the supervisory
organs of the League. No attention whatsoever was given to these
questions. On the contrary, the reasoning and the wording of the Judg
ment would appear to make it perfectly clear that the Court intentionally
avoided dealing with those questions, because it found it unnecessary to ARGUMENT OF MR. DE VILLIERS 543
come to, orto state, a conclusion in that regard, at that particular stage.
This is particularly evident, Mr. President, from a passage of the
Judgment ta wlùch we refer at pages 159 to r6o of our Counter-Memorial
(Il). We refer there to a passage at pages 333 and 334 in the Judgment of
rg6z, containing a quotation from the rgso Advisory Opinion, and we
draw attention to the fact that in this quotation from the 1950 Advisory
Opinion, certain passages in that Opinion were omitted, and that those
omitted passages in every case referred to the United Nations and the
possibility of transfer of functions to the United Nations, or a substitution
of the United Nations as supervisory organ. The passage, as quoted by
the Court in rg6z, reads as follows:
"The obligation incumbent upon a mandatory State to accept
international supervision and to submit reports is an important part
of the l\fandates System. When 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 administration of mandated territories showd be subject to
international supervision ... " (I.C.]. Reports I962, p. 333.)
1 break off the quotation here, for a moment, ta point out that that was
the place where the Court omitted certain words. If we refer to the
rgso Opinion, at page 136, we find that those words were the following:
"The authors of the Charter had in mind the same necessity when
they organized an International Trusteeslùp System. The necessity
for supervision continues to exist despite the disappearance of the
supervisory organ under the Mandates System." (I.C.]. Reports
I950, p. 136.)
That portion, Mr. President, we find was omitted in 1962. I proceed with
the rg62 quotation:
"It cannat be admitted that the obligation to submit to super
vision has disappeared merely because the supervisory organ has
ceased to exist." (I.C.J. Reports I962, pp. 333-334-)
That is the end of the quotation and it indicates that words were again
omitted, and the omitted words, which we find at page 136 of the 1950
Opinion, were these: "when the United Nations has another international
organ performing similar, though not identical, supervisory functions."
It becomes perfectly clear, Mr. President, that in this portion of the
Judgment, running from page 332 to page 335, the Court deliberately
omitted reference to the question whether there was a substitution of
supervisory organs. What the Court did deal with in its reasons, was the
question whether the Mandate as a whole, that is, the concept of the
whole institution, as opposed ta only Article 7 thereof, cowd any longer
be said ta be a treaty or convention in force, as we contended, or whether
the opposite was true. That was the question to which the Court gave
consideration, and it came ta a conclusion that our contention in that
regard was ta be rejected.
Of course, the phrase "the Mandate as a whole" fitted perfectly into
our statement of what I might call a negative, or a negative result-our
statement that the Mandate as a whole had ceased to be a treaty or
convention in force. As saon as one couverts that into a positive, then
the use of the phrase "the Mandate as a whole" creates difficulty, but in
the context it appears quite clearly that the Court had in mind no more 544 SOUTH WEST AFRICA
than the phrase which we used in that regard, namely "the Mandate in
other respects than Article 7''.
So, Mr. President, in our submission, the sentence did not, and was not
intended to, answer independent problems or questions rcgarding other
specifie provisions of the Mandate, and particularly not in regard to
Article 6, and the Applicants' repeated reliance on this phrase, isolated
from its context is, therefore, in our submission, clearly not justified.
Now, Mr. President, before leaving the 1962 Judgment, there is one
factor in it to which I should like to revert, and which, on analysis, shows,
quite independently from the arguments I have adduced so far, that a
contemplation of a substitution of United Nations supervisory organs for
those of the League would be entirely in conflict with the Court's reason
ing in that Judgment. The analysis in this regard, Mr. President, turns
on the factor of essentiality in regard to which the Court indicated that,
in its view, it played a very important part in retaining the element of
judicial protection after dissolution of the League. The factor was
apparently seen by the Court as one which operated in the minds of the
authors of the mandates system and in those of the parties to the agree
ment of April 1946. That the Court saw the matter in that Iight appears
to be evident from an expression it used at page 342 of the Judgment.
It said there "To deny the existence of the agreement it has been said
that Article 7 was not an essential provision of the Mandate instrument
for the protection of the sacred trust of civilization". I repeat, Mr.
President, "To deny the existence of the agreement"-that is, the
agreement of April 1946-"it has been said that Article 7 was not an
essential provision of the Mandate instrument". The Court, therefore,
considered this factor of essentiality to be something which opcrated in
both the ways I have indicated-both in 1920 and in 1946. And the
concept, as stated by the Court, was ·apparent!y that in case of failure of
administrative supervision, for any reason, judicial protection of the
sacred trust would be essential. That is the sense in which the Court spoke
of essentiality of judicial protection in circumstances in which there
might be a failure of administrative supervision. And the Court stated
that the authors of the mandates system would have contemplated that
such a failure could come about because of the unanimity rule in the
administrative procedures of the League system-because the mandatory,
on their view of that unanimity rule could make use of it, so asto create
a position of deadlock, thus making it impossible for the Council to impose
its will as supervisory authority on the mandatory.
But, Mr. President, it seems evident, when we consider the aforesaid
contemplation as of the year 1946 (April 1946, immediately before the
dissolution of the League), that that particular form of failure of adminis
trative machinery could no longer have played any part in the contem
plation of those who were dealing with the situation. It could no longer
have played a part, either as a factor emanating from the original
contemplation of the founders of the League system. or as one inducing
the agreement in April 1946. This factor is evident, Mr. President, from
the Court's own reasoning at page 342. The Court there, after referring to
our argument that Article 7 was not considered essential for protection
of the sacred trust, proceeded to state the following:
"If therefore Article 7 were not .an essential tool in the sense
indicated, the claim of jurisdiction would faU to the ground_ In
support of this argument attention has been called to the fact that ARGUMENT OF MR. DE VILLIERS 545
three of the four 'C'Mandates, when brought under the trusteeship
provisions of the Charter of the United Nations, did not contain in
the respective Trusteeship Agreements any comparable clause and
that these three were the Trusteeship Agreements for the terri tories
previously held under Mandate by Japan, Australia and New Zea
land. The pointis drawn that what was essential the moment before
was no longer essential the moment. after, and yet the principles
under the Mandates system corresponded to those under the
Trusteeship system. [So far, if 1 may break the quotation for a
moment, the Court was stating the effect and the implications of
our argument. The Court proceeds then to answer that argument as
follows:] This argument apparently overlooks one .important
difference in the structure and working of the two systems and loses
its whole point when it is noted that under Article rB of the Charter
of the United Nations, 'Decisions of the General Assembly on
important questions shaH be made by a two-thirds majority of the
members present and voting', whereas the unanimity rule prevailed
in the Council and the Assembly of the League of Nations under the
Covenant. Thus legally valid decisions can be taken by the General
Assembly of the United Nations and the Trusteeship Council under
Chapter XIII of the Charter without the concurrence of the trustee
State, and the necessity for invoking the Permanent Court for
judicial protection which prevailed under the Mandates system is
dispensed with under the Charter." (I.C.]. Reports I962,p. 342.)
We find, then, Mr. President, that the necessity for the particular fonn
of judicial protection which existed under the mandates system, was, in
the Court's contemplation, dispensed with under the Charter.
The implications of this reasoning on the part of the Court are twofold.
Firstly,Mr. President, the implication is that, given administrative
supervisory machinery which does not carry within itself a prospect of a
deadlock, which could stultify itself, there is no necessity for judicial
protection. That is obviously the first element in this contemplation.
The second element in it is, obviously, that the supervision by the
United Nations General Assembly, as provided for in the Charter, was,
in fact, a system of supervision carrying within itself no possibility of
such deadlock or breakdown.
These two elements are, therefore, inherent in the Court's reasoning.
and it follows, Mr. President, as a further factor which is inherent in that
reasoning, that if there was a contemplation in April 1946 that mandates
not converted into trusteeship would come under the system of adminis
trative supervision provided for in the Charter of the United Nations,
the particular need which existed in the mandates system for judicial
protection would fall away. There would therefore, in the Court's own
contemplation, no longer be any need for such a system-the necessity,
as it appeared in the time of the League, would in the Court's own
contemplation, be dispensed with under those circumstances.
But, Mr. President, one finds on reading the Judgment of the Court as
a whole, that this concept of the necessity for-of essentiality of
judicial protection did, in the Court's view, play a part in maintaining
judidal protection after the dissolution of the League. And the question
then arises, how can that be fi.tted into the reasoning of the Court to
which 1 have just referred? 1 submit that the answer is a perfectly plain
one. The answer is that the Court did contemplate that there would be no SOUTH WEST AFRICA
transfer of supervisory powers to the United Nations-that there would
be no substitution of supervisory institutions-and that, for that very
reason, there would be no administrative supervision in respect of
mandates. And it was in that circwnstance, then, that the Court saw a
continuing necessity for essentiality of-judicialprotection. That was the
only form of protection that could remain, because the other form, which
had obtained in the time of the League, was, as was indicated in the
Court's own contemplation, one which would not obtain if there were
administrative supervision under the Charter. The necessity would, then,
still arise from the fact of failure of administrative supervision, but the
failure would not consist in a prospective deadlock in administrative
machinery. 1t would consist in the fact that the only administrative
supervision provided for had lapsed completely because of the lapse of
the supervisory organs.
This, Mr. President, in our submission, confirms unmistakably that
the contemplation of substitution of the United Nations General Assem
bly, as administrative supervisory organ, would not be consonant with
the Court's reasoning in r962, but directly in conflict with it. We submit
that the conclusion is an inescapable one-the necessity for, or the essen
tiality of, judicial protection, as seen by the Court, could exist only to
cope with failure of administrative supervisory machinery. That failure
could, in the Court's contemplation, occur only in one of two circwn
stances-i.e., either because of a prospective deadlock in the machinery,
or because of a total failure-a non-existence--of supervisory machinery.
There is no alternative-no further alternative-because the Court's own
view was that if there is machinery in which there is no prospect of a
deadlock, there is no necessity for judicial protection. Therefore, M.r.
President, if there had been a contemplation of substitution of the
United Nations as supervisory organ, there could have been no prospect
of a deadlock, and the only sense in which the Court could, therefore,
have contemplated any continued necessity for judicial protection would
have been on the basis of complete failure of administrative supervision;
in other words, a contemplation that there would be no substitution of
supervisory organs.
In sum, Mr. President, I may, therefore, state the effect of our review
of the 1962 Judgment and opinions as follows:
The Court, and the Members of the Court, were faced with various
difficulties raised inargument-difficulties militating against a finding
that judicial protection had survived the dissolution of the League. In
answering the argument raising those difficulties, and in holding that
judicial protection did survive, the Court employed reasoning which was,
m its effect, dead against any contemplation that administrative super
vision survived, or that provision had been made for a substitution of
supervisory organs in that regard.
We noted on Friday, Mr. President, that there were similar features
also in the separate opinions of Judges Jessup and Sir Louis Mbanefo.
\Ve, also, noted, l\Ir. President, the incongruity which would arise from
the conclusion of the Court, as distinct from reasoning, if, on the one hand,
it were to be found as the Court found at the time, that there was to be
continued judicial protection exercised by a static group of States,
namely those which had been Members of the League at the time of its
dissolution, and if, on the other hand, the Court were now to find, as the
Applicants contend, that the other form of supervision, namely admin- ARGUMENT OF MR. DE VILLIERS 547
istrative supervision, was to be exercised by the United Nations as an
organization, despite the fact that the Court indicated that the two
concepts-administrative supervision and judicial protection-were
intended to reinforce each other.
Apart from the five judges who participated in the judgment of the
Court and the separa tc opinions of Judges Jessup and Sir Louis Mbanefo,
making a total of seven out of the eight judges who constituted the
majority on the fi.ndings on the preliminary objections-there was the
opinion of Judge Bustamante, the eighth member of the majority on that
occasion, and, as I fointed out before, he specifically found that there
was no succession o supervisory powers from the League to the United
Nations Organization. 1 pointed out that three of the seven judges who
gave rninority opinions, came to the specifie conclusion that there was
no such succession in regard to administrative supervision-no substitu
tion of a supervisory organ-and those three judges were the honourable
President, Sir Gerald Fitzmaurice, and the honourable Judge van Wyk.
The other four members of the Court who gave opinions in the minority
did not find it necessary to express any views on this aspect of the matter.
That was the analysis which we gave of the situation as it appears
from the 1962 Judgment and opinions-the analysis which we gave on
the pleadings, and we submit that, after this oral argument, the analysis
stands in every respect.
1 now proceed, Mr. President, to deal with the 1950 Opinion in so far
as it is relevant to the question now under consideration. That Opinion,
as we noted before, is direct authority for the contention now advanced
by the Applicants, and it, therefore, stands directly in the way of accep
tance of our contentions. That is a situation we must face squarely, and
we do so, Mr. President, with respect and with submission. The question
is,what weight should the Court attach in these present proceedings to
the previous Advisory Opinion? We have made reference to the principles
applicable in cases where a matter, pronounced upon in an advisory
opinion, arises for subsequent adjudication in contentions proceedings,
and, as we notcd there, although an advisory opinion is to be accorded
great weight in such cases, as an expression of the view of an eminent
tribunal, its existence does not, as a matter of principle, prevent this
Court from coming to a different conclusion, should justice demand it.
Our submission in this particular case, advanced with the greatest
respect for the Court and, particularly, for the remaining members of the
Court who participated in the 1950 proceedings, is that there do exist
reasons-special reasons-why this Court should depart from the con
clusion arnved at in 1950 on this particular aspect of the matter. \Ve gave
sorne of these reasons earlier in our argument when we indicated, Mr.
President, the various attitudes which had been taken up by the Appli
cants in earlier stages of these proceedings, and when we pointed out
that the Applicants are, in fact, no longer prepared to defend the reason
ing ofthe Court, as originally interpreted by them. Consequently, we now
have this strange position that the Applicants which, firstly, contended
in their Memorials that the 1950 Opinion should be automatically
followed by the Court in these proceedings, secondly, stated in the Oral
Proceedings in 11}62,that the Opinion was clear, sound, and meant what
it said, and, thirdly, still contend in their Reply, although in conflict with
another passage also in the Reply, that the 1950 Opinion is to be regarded
as res judicata, have now changed their interpretation of the Opinion and, SOUTH WEST AFRICA
in addition, now suggest, as if by way of a concession, that the reasoning
of the Court, as interpreted by them, was fallacious. Indeed, Mr. President,
in these Oral Proceedings also the Applicants still quote quite lavishly
from the 1950 Opinion, and request reaffirmation thereof.
This attitude which the Applicants now take up, in asking, in effect,
for reaffirmation of the Opinion as regards its conclusion, but in differing
from what they themselves describe as important aspects of its reasoning,
would, by itself, in our submission, justify a complete re-opening and
re-appraisal of the' whole matter. But, i'IIrPresident, it does not end
there; it goes much further, as can be seen immediately when it is
appreciated why the Applicants are now forced to depart from the 1950
Opinion in certain respects, and from their earlier interpretations of that
Opinion. The reason is not, as we shaH show, that the reasoning of the
Court, ifproperly interpreted, was wrong in the respects now suggested
by the Applicants. On the contrary, we say that if the reasons of the
Court given in1950 are given their intended weight and effect, they are quite
comprehensible and are quite logical as far as they go-and as far as the
material on which they rested, enabled them togo at the time. In truth,
the Applicants' dilemma on this issue arises, Mr. President, because
initially they interpreted the Opinion wrongly. They interpreted the
Opinion in a manner which attributed to the judges a tine of reasoning
which was clearly illogical and untenable, and which could not have been
intended by the judges in the sense contended for by them. And the
reason why the Applicants were compelled to attribute an illogical and
un tenable tine of reasoning to the Court, was because they would not, and
could not concede that the Court came toits conclusion on the basis of a
finding of fact, the finding of fact being that of a general implied agree
ment in 1945-1946 to transfer the League's supervisory functions, in
respect of mandates, to the United Nations. The reason why the Appli
cants could not concede that this was indeed the basis upon which the
Court's Opinion rested is evident and very significant, because a finding
of fact by a court must necessarily be based on the evidence which is
before that court. A court is not preswned to know ail the facts as it is
preswned to know the law, and, therefore, if there is not presented to a
court all the facts which may have a bearing on a particular question,
the court decides or makes a factual finding, on limited facts. If the same
matter subsequently cornes before the court in circumstances where there
is no res judz.cata,and the court is presented with more extensive evidence
which illustrates other aspects of the facts, and demonstrates that the
conclusion which the court had come to on the previous occasion cannat
stand, the court, in effect, makes a new determination on a new problem.
lt does not come to a conclusion that it errcd on the previous occasion.
It cornes to a conclusion on the facts which are now presented toit, such
conclusion is different from that to which it came on the more limited
facts presented to it on the previous occasion. This is a situation which
very frequently arises in the practice of courts when the same issue of
fact may arise between different parties in subsequent proceedings where
there is no question of res judicata. In such cases the court may, on a
proper review of the full facts, come to the conclusion that the previous
finding cannat stand-not because the court erred on the facts as
previously presented toit, but because new facts show up the situation in
an entirely different light, which the court takes into account in its
finding of fact. The recognition of that princip le, Mr. President, is inherent ARGUMENT OF MR. DE VILLIERS 549
in ail provisions which exist in municipal legal systems for a re-opening
of proceedings, e.g., where a court, either in a criminal or a civil case, may
already have made a determination of fact, or convicted a person of
having committed a certain crime, or, found that Ais liable toBin the
sum of tro,ooo damages, or whatever the case might be. There are,
of course, rules which circumscribe and restrict the opportunities of
litigants to continue endlessly to re-open proceedings before the same
court, but, in a fit case, where the rules and circumstances permit, the
very same court is very often called upon to deal with the question
whether new evidence could place a new perspective on a matter on
which the court has already pronounced judgment and whether the
matter ought, therefore, to be re-opened for that purpose.
The technical rules which apply in municipal systems, do not apply in
this particular instance, where the Court has given an Advisory Opinion
and where, subsequently, the matter arises again in the course of con
tentions proceedings. The true analogy with municipal systems would
rather be the case where the same question of fact has arisen in subsequent
proceedings between different parties, so that there is no operation of
any consideration of res judicata. That would be the proper analogy, but
I refer to those examples which can occur in municipal systems, and
which do very regularly occur, which recognize the fact that when a court
has made a finding of fact on evidence presented to it in a particular
case, then such finding is one which could, quite competently and pro
perly, be disturbed or over-ruled by the same court in later proceedings
when the full facts are presented toit.
This situation, Mr. President, the Applicants could not admit. They
could not admit that the Opinion of the Court in rgso really rested on a
finding of tact, and, therefore, in order to minimize the significance of the
new facts, as the Applicants cali them, they were constrained to interpret
the rgso Opinion as if it were based on considerations purely of law. In
order to do this they were compeiled to attribute to the Court, reasoning
which was so patently untenable that they were themselves eventually
forced in these proceedings to dissociate themselves from it. They were
forced, Mr. President, to dissociate themselves from those earlier inter
pretations which they gave to the Opinion, firstly, by judgments and
opinions which have been given by this Court and its members since the
commencement of these proceedings; and they were also forced to doit,
Mr. President-and I do not say it in any immodest way-by the demon
stration in our pleadings of the unte'nability of certain views which they
had taken and which they ascribed to the Court, or which they described
as being the basis underlying the reasoning of the Court.
Mr. President, I shalllaterrefer in more detail to sorne of these aspects,
but at this stage I am concerned only to emphasize that it appears to be
common cause between the Parties that the 1950 Opinion is not correct
as it stands. That seems to be common cause. The Applicants contend
that the reasoning of the Court was faulty in material respects, but that
the conclusion was nevertheless correct. The Respondent, on the other
hand, does not attribute to the Court any lack of logic, but it merely says
that there was a Iack of correct information, for which lack the Court was,
of course, not responsible-and that, for that reason, the Court came to a
conclusion on the facts which, on fuller consideration of the facts bearing
on the issue, can no longer stand.
lt will be apparent, therefore, Mr. President, that the dispute between550 SOUTH WEST AFRICA
the Parties regarding the 1950 Opinion falls basically under two headings.
The first one is,what is the correct interpretation of the reasoning of the
Court? And the second is, to what extent is such reasoning vitiated
either by the defects in logic attributed to the Court by the Applicants,
or by the lack of presentation of relevant facts which is reverted to by
the Respondent? We will consider these questions in turn.
I deal, first, with the question of the correct interpretation of the
reasoning of the Court. Mr. President, we have been through this before,
and I do not, therefore, intend to deal with every inch of the way again.
I would like to concentrate on sorne of the salient features. We give a
review in the Counter-Memorial, Il, at pages qr-146, of what we conceive
to be the correct interpretation of the 1950 Opinion, and we can very
briefly summarize it. Firstly, the Court's reasoning commences at page
136 by recognizing "... the fact that the supervisory functions of the
League with regard to mandated territories not placed under the new
Trusteeship System were neither expressly transferred to the United
Nations nor expressly assumed by that Organization". In other words,
the Court gives recognition to the fact that there was no express arrange
ment bringing about such a transfer or such a substitution of supervisory
organs. But then follow, in the Court's words, and I quote, "[n]ever
theless, ... seem to be decisive reasons" for coming to the conclusion
that there was such an arrangement.
Now, Mr. President, this introduction to the Court's discussion of the
subject-the cmphasis on the lack of an express transfer-and an express
assumption of supervisory functions-together with the indication that
that lack was not decisive in itself-immediately suggest that the
subsequent reasoning would rest on tacit intent, on the tacit transfer, or
tacit assumption of supervisory functions. That is the natural and prima
facie indication given by this introductory portion of the reasoning itself.
And indeed, Mr. President, when one proceeds to analyse the reasoning
itself, one findsthat that is exactly what that reasoning does indicate,
that is, that it does rest on concepts of tacit intent-a tacit transfer of
functions, or a tacit assumption thereofbyasubstitutedsupervisoryorgan.
The four "decisive reasons", as the Court called them, then follow.
We group them for convenience under four headings; they could be
called either "four reasons" or, perhaps more fittingly, "four groups of
reasons". The first one cornes under what the Court later refers to as
"general considerations". They read as follows, Mr. President:
"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
this System they considered that the effective performance of the
sacred trust of civilization by the mandatory Powers required that
the administration of mandated territories should be subject to
international supervision." (l.C.]. Reports rgso, p. 136.)
May I interrupt here for a moment. I emphasize that this supervision
-this obligation to submit reports-was regarded as important in the
sense that it assisted in the "effective performance of the sacred trust of
civilization": that it was considered by the authors of the Covenant that
effective performance required that the administration should be subject
to international supervision. It was, therefore, required for a particular
purpose, viz., for effective performance. Then the passage proceeds: ARGUMENT OF MR. DE VILLIERS 551
"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." (Ibid.)
There was "necessity", if 1 may break again, Mr. President, to bring
about effective performance of the sacred trust.
The passage continues-
"It cannot be admitted that the obligation to submit to supervision
has disappeared merely because the supervisory organ has ceased to
exist, when the United Nations had another international organ
performing similar, though not identical, supervisory functions."
Mr. President, immediately after stating these general considerations,
the Court proceeded to say that they were "confirmed" by certain other
factors-"confirmed" was the Court's own ward. I shall deallater with
those other factors. For the moment I merely want to point out that the
ward "confirmed" clearly cannot be read as signifying that the general
considerations were considered to be conclusive by themselves, because,
Mr. President, if those general considerations were by themselves
considered to be conclusive by the Court asto why there was to be super
vision over mandates by the United Nations Organization, then, indeed,
Mr. President, the only description of such reasoning of the Court, one
could give, would be that of judiciallegislation.But, in fact, it would be
quite unfair to attribute any intent of that kind to the Court, or any
description of that kind to its reasoning. It is perfectly clear that the
Court intended nothing of that kind. 1 am merely painting out, for the
moment, that the Court could never have intended to convey that it was
brought to its conclusion by these considerations. If that had been the
intention, Mr. President, then these considerations would have had to be
interpreted as meaning, in effect, that because international supervision
is desirable, the Court holds, therefore, that it must exist; and that
because the United Nations has an organ performing supervisory
functions under a trusteeship system which are similar to, though not
identical with, the supervision previously exercised by the League organs
in respect of mandates, the Court, therefore, now holds that the manda
tory, which was previously obliged to submit to League supervision,
must now be obliged to submit in respect of its mandate to the supervision
of the United Nations organ. One cannot, in my submission, Mr. Presi
dent, attribute such views to the Court.
To put it in another way: if this were the correct construction of the
1950 Opinion, the Court would have held that, after the dissolution of
the League, supervisory functions passed to the United Nations without
any fresh consent on the Respondent's part, because those general
considerations do not in any way, either expressly or implicitly, refer to
any concept of fresh consent on the Respondent's part. And it seems
evident, Mr. President-the Applicants themselves admit it now, at the
stage to which we have now come in these proceedings-that it would
clearly be untenable to suggest that that conclusion could be reached
independently of fresh consent on the Respondent's part. The Applicants
themselves admit that, even though it is only for the Iimited purpose of
saying that a substitution of supervisory organ, and an obligation of
international accountability with the United Nations as supervisory
authority, could only have been brought about on the basis of fresh con-552 SOUTH WEST AFRICA
sent on the Respondent's part. And we cannot, with respect, attribute
to the Court any contemplation to the contrary in rg5o. The more
reasonable construction of the Opinion, in our submission, is, therefore,
that which we have always given to it. It is a construction that the
varions reasons give b~y the Court, or the varions groups of reasons given
by it, are'interrelated;th:,Ltthese general considerations weremerely the
introductory portion of the Court's reasoning which constituted back
ground circumstances against which certain acts were, in the Court's
view, to be appraised; and that the Court then proceeded from the
general considerations to appraise those particular acts. Read in this
light the general considerations were, in our submission, not intended to
intimate anything more than that the importance of supervision by
sorne international organization, particularly as regards effective opera
tion of the system, was a factor which might have been expected to
exert an influence on the minds of the States concerned with the founda
tion of the United Nations and with the liquidation of the League,
particularly since there was a new organization in existence which
performed supervisory functions. ln other words, Mr. President, these
factors were relied upon as indicating a general likelihood or a general
probability, that the States concerned would have been inclined to agree
to a substitution of the United Nations for the League as the supervisory
organ. But the general considerations, in our submission, did no more.
That is, in the context~ h e circumstances-the only reasonable
construction, in our submission, that can be given to those general
considera tions.
They were, therefore, features tending to support an inference of tacit
agreement relating to the transfer of supervisory functions to the United
Nations, or the substitution of supervisory organs, whichever way one
prefers to put it.
That, then, brings one to the second stage in the Court's reasoning
which, the Court said, "confirmed" the general considerations. That
stage in the reasoning referred to Article 8o, paragraph 1,of the Charter,
and it said that the general considerations were confirmed by the clause
"as interpreted above"-1 wish to emphasize the words "as interpreted
above". Those words relate back to an earlier passage in the Opinion,
Mr. ·President, at pages 133-134 of the I.C.J. Reports, and that passage
reads as follows:
"It is true that this provision [in other words, Article 8o, paragraph
1] only says that nothing in Chapter XII shall be construed to alter
the rights of States or peoples or the terms of existing international
instruments. But-as far as mandated territories are concerned, to
which paragraph 2 of this article refers-thisprovision presupposes
that the rights of States and peoples shall not lapse automatically
on the dissolution of the League of Nations."
The important word here, Mr. President, is "presupposes". The Court in
this earlier passage at pages 133-r34, therefore, drew a distinction between
what the article says-the article only says that nothing in the chapter
shall be construed to bring about certain alterations-and what was
"presupposed". And the term presupposition and the whole concept
which it denotes therefore relates, in our submission, to the underlying
contemplation or a tacit intent on the part of the parties who agreed to
Article 8o, paragraph 1, of the Charter. ARGUMENT OF MR. DE VILLIERS 553
That is further confirmed by the next sentence in this earlier passage
(p. 134), which reads as follows:
"It obviously was the intention to safeguard the rights of States
and peoples under aU circwnstances and in all respects, until each
territory should be placed under the Trusteeship System."
Here the important word is the "intention"-again an intention not
related to what the article says, but towhatwasquiteobviouslyregarded
by the Court as being a tacit, underlying intent.
And, Mr. President, if we then proceed to the later passage, which
refers back to this earlier one-that is at pages 136-137-we find that
the Court continues along the same line of reasoning that-
"The purpose must have been to provide a real protection for
those rights; but no such rights of the peoples could be effective!y
safeguarded without international supervision and a duty to render
reports to a supervisory organ."
Here the important word which I want to stress is the "purpose".
\Ve, therefore, have, when we take these passages together-a pre
supposition, an obvious intent and a purpose-none of which relates to
what the article says, but all of which relate to what, in the opinion of the
Court, must have been in the minds of the persans who agreed to that
article. In other words, Mr. President, the Court, by the use of these
expressions, clearly indicated that it was reasoning towards the finding
of a tacit intent on the part of the interested parties, the interested parties
in that instance being the authors of the Charter.
This analysis is further confirmed by the element of effective safe
guarding to which the Court referred, because the element of effective
safeguarding would be a factor of probability on this same line of rea
soning-a factor which would strengthen the probability that the parties
concerned would have had this intention-this tacit intent-which is
ascribed to them by a process of implication by the Court.
It is submitted, Mr. President, that this construction of the Court's
reference to Article 8o, paragraphI,is the only reasonable one. Even then
one may, with respect, raise questions asto the factual weight which the
Court assigned to what it regarded as a pre~upposi untieoling the
Article-that is another matter, and that is'amatter of fact to be weighed
in the light of aU relevant facts which may have a bearing upon the
question. But, Mr. President, one would certainly not ascribe to the
Court, as a matter of law, the illogical construction of the Article itself
which the Applicants in the earlier stages of this case attributedto the
Court, and of which the following is a typical example-we get it from
the Prelirninary Objections proceedings, where the Applicants stated as
follows:
"As 1 have pointed out, the Court, in its Opinion, has three times
prior to this point cited Article So, paragraph I, as having been
designed to conserve ali rights of peoples of Mandated territories to
international supervision and judicial protection." (VII, p. 321.)
Mr. President, I read, just before the adjournment, a contention
advanced by the Applicants in the 1962 Oral Proceedings, at page 321
(VII), in which they assigncd to the Court the view that Article So, para
graph 1, hac!.been designed "to conserve ali rights of peoples of mandated
territories to international supervision and judicial protection". Our554 SOUTH WEST AFRICA
submission is that,ifthe Court held this, the Court must clearly have been
wrong, as the Applicants themselves now concede, amongst others in a
passage of the verbatim record at pages 225-226, supra.
We quoted that passage, Mr. President, from the Applicants' argument,
on 31 March rg65 (p. 302, supra) but, unfortunately, in that verbatim
record the quotation was not put in quotation marks and to clear up any
misunderstanding, it might be as well to repeat that that passage was
something said by the Applicants' Agent and not by us. And it read as
follows:
"It may be repeated, Mr. President, with respect, that the Appli
cants do not contend that any positive legal consequences was
brought about by Article 8o, paragraph r. The language of the
Court just quoted from the 1950 Opinion might, with respect, imply
a different view." (P. 226, supra.)
ln our submission, for the reasons we have already given, no interpreta
tion as contended for by the Applicants was, in fact, ~ven by the Court
to Article 8o. The Court relied only on what it cons1dered to be tacit,
underlying presuppositions, or intentions, on the part of the parties who
agreed to that article.
Then we come, Mr. President, to the third stage in the Court's rea
soning in 1950--the third of the decisive reasons, or groups of reasons, on
which the Court relied. That we find at page 137 and it concemed the
last League Assembly resolution regarding mandates. The Court found
that in this resolution the Assembly "gave expression to a corresponding
view", that is, a view corresponding with that held by the authors of the
Charter in agreeing on Article 8o, paragraph r.So where the Court was,
in the discussion of Article 8o, paragraph 1, dealing with a question of
a tacit, underlying intent on the part of the authors of the Charter, the
Court is here speaking of a "corresponding view" on the part of the
Members of the League at its last assembly.
The Court then set out the contents of the third and the fourth para-
graphs of the League resolution and it concluded, at page 137. that:
"This resolution presupposes that the supervisory functions exer
cised by the League would be taken over by the United Nations."
(I.C.]. Reports I950, p.IJJ.)
Mr. President, again the word "presupposes" appears. Thisis, therefore,
very clearly a reference not to what was said in the resolution-not an
interpretation of the resolution itself-but to a tacit intent which the
Court found to be underlying that resolution. That is made clear not only
by the use of the word "presupposes" but also by the fact that the resolu
tion itself, inthe very clear wording which it uses, nowhere makes any
mention at ali of any transfer, or taking over, of supervisory functions,
as the Court was fully aware in 1950.
This then, Mr. President-this third stage in the reasoning-concluded
the Court's reasoning in so far as it sought to build a bridge, as 1 might
call it, betweenthe League of Nations as an organization and the United
Nations as an organization.
The fourth and final stage in the reasoning was concemed only with the
matter of internai arrangement within the United Nations itself. That
stage of the reasoning was to the effect that the General Assembly of the
United Nations was rendered competent by Article 10 of the Charter to
exercise such supervision and to receive and examine reports for that ARGUMENT OF MR. DE VILLIERS 555
purpose. It seems evident, Mr. President, that that was concerned
merely with the determination within the United Nations of an organ
which would be competent to undertake this supervision. Of course, this
would have no relevance to the enquiry unless there was an obligation to
submit to United Nations' supervision. That is indeed made clear, Mr.
President, by the very function of Article ro itself in the whole structure
of the Charter, and by the wording of Article ro. The function of Article
10, where it occurs, is very clearly to indicate the functions of the
Assembly as distinct from other organs of the United Nations. The
wording of the Article is to this effect:
"The General Assembly may discuss any questions or any matters
within the scope of the present Charter or relating to the powers and
functions of any organs provided for in the present Charter, ... "
I end the quote there-that is as far as it is relevant.
In other words, a matter must fust be within the scope of the Charter,
or it must relate to the powers and functions of an organ provided for in
the Charter, before it becomes a function of the General Assembly to
discuss it and to make recommendations in regard thereto under Article
IO.
That prior question-whether it was a matter brought within the
functions or the powers of the United Nations the Court evidently sought
to answer with its reasoning over the fust three stages, which I have
dealt with.
The Court also, in the discussion of this aspect of its reasoning, made
a statement to which I referred at an earlier stage of my argument, and
that is the statement that:
''This competence was in fact exercised by the General Assembly in
resolution 141 (II) of 1 November 1947, and in resolution 227 (III) of
26 November 1948, confirmed by resolution 337 (IV) of 6 December
1949·"
I pointed out, Mr. President, that the Court at the beginning of its
reasoning on this part of the case, at page 136, indicated that the func
tions of the League, with regard to mandated territories,were not
"expressly assumed" by the United Nations Organization.
In other words, this fi.ndinghere, at page 137, could not have involved
a contemplation that there was an express assumption of functions of
supervision by the United Nations by means of these resolutions. Quite
clearly, regard being had to their content, with which I dealt before,
that could not have been a contemplation on the part of the Court.
The Court's only contemplation could have been that, having regard
to the circumstances, the resolutions, in their context, were to be inter
preted as tacitly manifesting an intent to have and to exercise United
Nations supervision in respect of mandates.
I have indicated before, Mr. President, that on a full review, as I have
now given, of the relevant circumstances surronnding these resolutions
-the attitudes of the States as manifested at the time of these resolutions
in the Trusteeship Council itself, and so forth-alithe factors with which I
dealt in this full review indicatevery clearly, in our submission, that that
inference cannot stand. As 1also indicated, respectfully, this is one of the
instances in which the further facts now placed before the Court, and
which were not before the Court in 1950, are of major assistance and
bring about a change in the conclusion to be arrived at.ss6 SOUTH WEST AFRICA '
So, Mr. President, to swnmarize: On the question of the proper inter
pretation of the Court's reasoning in 1950, we submit that the Court was
arguing from what it considered to be probabilities inherent in objective
features referred toby it in the fust stage of its reasoning, i.e., the general
considerations relating to the probable intent on the part of the authors
of the Charter and the Members of the League at the time of its dissolu
tion.
The Court proceeded, Mr. President, from these general considerations
-these general indications of probability-to Article Bo, paragraph 1,
which it regarded as bearing upon a probable, underlying intent on the
part of the Members of the United Nations.
It argued further, in the third stage of its reasoning, that there existed
a corresponding, underlying intent on the part of the Members of the
League of Nations, at the time of its dissolution.
From all these factors together, theCourt drew an inference of a general
tacit agreement on the part of the authors of the Charter, and on the part
of the remaining Members of the League, to the effect that mandatories
would be obliged, pending trusteeship or other agreements, to submit to
United Nations supervision under the mandates. That we submit to be
the only reasonable and proper construction which can be placed on this
reasoning of the Court.
What other possibilities are there, Mr. President? The Applicants have
suggested sorne and we submit that none of them can stand. We have
really dealt with them aH but I can just, by surnmarizing and putting
them in their proper perspective, briefly say what they were.
Firstly, in their Observationsand Oral Proceedings on the Preliminary
Objections the Applicants contended that the 1950 Opinion was ba<>ed
on the application of sorne principle of succession whereby the functions
of the League and the rights of its Members passed to the United Nations
and its Members, without any fresh consent on the part of the Respondent
in the period of transition,1945-1946. We dealt with this in our argument
contained in the verbatim record at pages 290-295,supra. TheApplicants,
Mr. President, at that stage, that is in the Observations and the Oral
Proceedings on the Preliminary Objections, particularly the Oral
Proceedings, denicd that the Court's reasoning was based on any agree
ment. They, in fact, said this:
"... none of the decisive reasons underlying the Opinion of l950
rests on a premise of 'tacit consent', whether on the part of the
Respondent, the League of Nations, or the United Nations". (VII,
p. 299-)
The Applicants now contend that consent on Respondent's part,
although only to a substitution of supervisory organs, is an essential
element in their case, and thus they suggest that the Court, on their
former interpretation of the Court's Opinion, must have been wrong in
this respect. But, in truth, Mr. President, it is so clear that Respondent's
consent to any substitution of supervisory organs would have been
required, that it is quite unreasonable to suppose that the Court would
have adopted a line of reasoning not based on such consent, and we,
therefore, find that the Applicants themselves have also now adapted
their argument in regard to interpretation of the Court's Opinion of 1950
so as to bring that interpretation into doser correspondence with their
own submission. They now attribute to the Court also a contemplation ARGUMENT OF MR. DE VILLIERS 557
in 1950 that the element of consent, on Respondent's part, which the
Applicants now ftnd necessary, was indeed a necessary element. That we
find in the verbatim record at pages 314 to 318, supra.
Secondly, Mr. President, the Applicants, as 1 pointed out in the Oral
Proceedings on the Preliminary Objections, cçmtended that substantial
weight was given by the Court to Article So, paragraph r, of the Charter,
as preserving rights under the Mandate. And as we have noted, Applicants
stillimpute this line of reasoning to the Court although they are now
more tentative aboutit, but the Applicants themselves suggest that it is
not correct and they dissociate themselves from it. ·
The net result, Mr. President, of ali this, is that it now appears to be
common cause that the Court based its finding, at least in an essential
part of its reasoning, on consent on Respondent's part in the years 1945
and 1946-consent, that is, to a transfer of supervisory powers or a
substitution of supervisory organs. That now seems to be common cause,
and I again emphasizc, that that finding is a fi.nding of fact on which this
Court might well now, on the strength of a fuller presentation of evidence,
come to a different conclusion.
That brings us, Mr. President, to the so-called new facts. 1 do not want
to deal with them at any length, 1only wish to emphasize their signifi
cance.
We referred in our pleadings, commencing with the Preliminary
Objections, to three sets of facts, which were not before the Court in 1950
and which bear materially on this question of consent in the ycars 1945 to
1946. In their chronological sequence the three were the following: The
first one concerned the proposais regarding a temporary Trusteeship
Committee in the deliberations of the Preparatory Commission and its
Sub-Committees, which temporary Trusteeship Committee was-
"... to advise the General Assembly on any matters that might arise
with regard to the transfer ta the United Nations of any functions
and responsibilities hitherto exercised under the mandates system".
(II,p. 40.)
It will be recalled, Mr. President, that these proposais lapsed upon the
rejection of the suggestion of a temporary trusteeship committee, without
any other provision having been made regarding a possible transfer to,
or assumption by, the United Nations of any functions under the man
dates system. This, Mr. President, makes it quite clear, in our submission,
that there was, on the part of the United Nations, a deliberate refrain
ment from dealing with the question of mandates, and from providing for
any machinery for, or, anything bearing upon, a transfer of functions
outside of trusteeship.
In combination with the other relevant factors in the situation,
Mr. President, this brings an element of certainty which was not there
before-an element of certainty which is dead against the presupposition
of tacit intent ascribed by the Court in 1950 to the authors of the Charter.
With knowledge of the fact that there was this proposai for an express
provision, which proposai was then not accepted, and deliberately not
accepted, Mr. President, it then becomes clear that there was no longer
any scope for a finding of the tacit intent to the same effect as that found
by the Court in 1950.
The next fact, Mr. President, concems the original Chinese proposai
at the last session of the League Assembly. This again refutes, in oursss SOUTH WEST AFRICA
submission, any suggestion of implied consent on the part of the Members
of the League present at that final session. In our Counter-Memorial, II,
at page 146, in a footnote, we set out for purposes of comparison the
wording of the Court's finding in regard to the presupposition which the
Court said underlay the 1946 resolution of the League Assembly, and the
wording of the relevant portion of the Chinese draft proposai. The first
one, Mr. President, namely the presupposition ascribed by the Court to
the final Assembly of the League, read as follows-" ... the supervisory
functions exercised by the League would be taken over by the United
Nations". The wording of the Chinese draft proposai in this respect
considered that "the League's functions of supervising mandated terri
tories should be transferred to the United Nations". {Counter-Memorial,
II, p. q6, footnote 6.)
ln other words, Mr. President, the fust Chinese proposai was designed
to effect by express resolution what the Court found was, as a matter of
tacit intent, underlying the actual resolution eventually passed. But as
soon as one knows the facts, namely that that Chinese original proposai
could not be accepted, that it had to be dropped and that it had to be
superseded by a new proposai because of opposition to this very element
in it, as soon as that fact is known then surely there is no longer any
scope for the Court's fmding of a tacit intent, or an implied consent, on
that very point, on the part of the Members of the League.
Finally, Mr. President, the third element on which we rely is the
attitude adopted by States, l\lembers of the United Nations, in the crucial
years 1946 to 1949, on the question whether there was any duty outside
of trusteeship to submit to United Nations supervision. Mr. President,
those years followed immediately upon the years of transition, 1945 to
1946, in which it is said that this tacit agreement was entered into. If it
was, in·fact, a tacit agreement which was so clear-that it did not have
to be reduced to writing, that everybody was perfectly agreed upon it
and that they knew that to be so-one would have expected that in the
debates and the issues which arose in the next few years in the United
Nations at least one State would have said: "but surely there was this
general understanding at the time of the formation of the United Nations
and at the time of the dissolution of the League." Not a single State of ali
those which took part in the debates, however, ever alleged anything to
that effect. On the contrary, there was a substantial number which
identifi.ed themselves precisely with the Respondent's contention in
that regard.
That again is a factor which was not before the Court in 1950and which,
in our subrnission, affords very cogent and conclusive proof, in conjunc
tion with the other two factors, on this issue of tacit agreement in 1945
and 1946.
The questions which fall to be considered in regard to these new facts,
Mr. President-questions which I have dealt from our side, arc, fi.rstly, to
what extent and in what sense they are new, and secondly, to what extent
they are material. We have, from our side, consistently and repeatedly
stated our attitude, and I need not repeat it. I have just stated it again
as far as the materiality-the important signifi.cance-of thesc facts is
concerned. But it remains, Mr. President, to consider what the present
attitude of the Applicants is in this regard.
Our contentions in regard to both these aspects-both in regard to the
newness and in regard to the materiaüty of the facts-were disputed by ARGUMENT OF MR. DE VILLIERS 559
the Applicants in the previous stages of these proceedings, particu
larly in the Preliminary Objections proceedings. In their Observations
the Applicants stated the following:
"Respondent's contention [that is, the new facts contention] is
advanced with little grace or merit.
First, not one of the so-called 'new facts' has come into existence
since rgso. Respondent had full opportunity to develop at Iength
each and every one of them during the Advisory proceedings."
(1, p. 430.)
Mr. President, we have, of course, never contended to the contrary.
That was not the sense in which we ever said that the facts were new.
We merely said they were new in the sense that they were, in fact, not
presented to the Court in rgso. The quotation from the Applicants'
statement in the Observations continues as follows:
"Second, not one of the so-called 'crucial new facts' is in reality
either new or crucial. Each one of them was before the Court in 1950,
and, obviously, was not deemed crucial." (Ibid.)
That was their contention, Mr. President, in rg62.
Also, in the Oral Proceedings, on these Preliminary Objections, the
materiality of the new facts was disputed by the Applicants, but their
contention in that regard was based on the construction of the reasoning
of the Court in rgso, the implications of which 1 have pointed out to the
Court before. Their argument at page 299 of the rg62 Oral Proceedings
read as follows :
"ln the case of each 'new fact', the alleged element of 'crucial
importance' assigned is that of so-called 'tacit agreement' or 'consent'
as it is alternatively called."(VII, p. 299.)
Inasmuch as the Applicants' attitude then was, as I have pointed out,
that none of the decisive reasons underlying the 1950 Opinion rested on a
prernise of tacit consent, the Applicants, therefore, contended as follows:
"Respondent does not interpret the 'new facts' in a manner
consistent with the true signifi.cance of the Court's reasoning, or
'general considerations'. The Respondent, on the contrary, inter
prets, or rather misinterprets, the Court's reasoning so as to give a
false significance to the 'new facts'." (VTI,p. 300.)
That was the attitude adopted in rg62, Mr. President.
In the Reply, the Applicants still did not concede either the essentiality
of the agreement in 1945to 1946 as an element in their case, or the correct
ness of Respondent's interpretation of the 1950 Opinion as being in an
essential respect based on consent. Thus they still said at page 552 of the
Reply (IV):
"Ali such assertedly 'new facts' were placed before the Court in
the Preliminary Objections and in Respondent's Oral Arguments
thereon. The Court nonetheless reaffirmed its Advisory Opinion and,
in the words of the Court:
'AUimportant facts were stated or referred to in the proceedings
before the Court in rgso.'
Accordingly, no purpose would be served by showing, as Appli
cants submit, that Respondent's reiteration of the alleged 'new
facts'add nothing 'new'." (IV, p. 552.) SOUTH WEST AFRICA
Mr. President, in regard to this passage, we might pass the following
comment: Firstly, the remark of the Court in 1962, that aU important
facts were stated or referred to in the proceedings before the Court in
1950, as I have indicated, related to the compromissory clause issue and
not to the issue regarding Article 6. It is not necessary to refer to that
any further. Secondly, the judgrnent, therefore, does not assist the
Applicants in showing that the new facts regarding transfer of functions
under Article 6 were, indeed, known to the Court in rgso. Thirdly, Mr.
President, no argument has been presented to the Court, by my learned
friends, in these present Oral Proceedings, towards showing that the
facts were not new, in the sense that they were, in fact, before the Court
in 1950. Wc have heard no argument to that effect.
From our point of view, it would be time-consuming torun through ali
the records so asto establish the negative averment that the facts were
not before the Court. We say, of course, they were not. We have been
through the records and we are satisfied that they were not before the
Court, but we invite the Applicants, Mr. President, in the circumstances,
to demonstrate (if they abide by their assertions in the Reply) which
passages in the documentation of the 1950 proceedings indicate that
there was any discussion of, or a reference to, any of these new facts. \Ve
know that they tried to do that in the Oral Proceedings of 1962, but we
also know that the effort failed entirely.
ln the absence of such a demonstration by the Applicants, Mr. Presi
dent, we shall assume that the Applicants have now abandoned also this
part of their argument, as would, indeed, seem to appear from the lack
of reference thereto in their oral statement, and we shall assume that the
Applicants now accept that the new facts are, in fact, new, in the sense
in which we submit that they are new.
That brings us, Mr. President, to the argument now advanced by the
Applicants in the Oral Proceedings regarding the significance of the new
facts. They are in a difficult position since they now concede that sorne
form of consent in 1945 to 1946 is necessary to their case, and they now
interpret the 1950 Opinion accordingly, namely that that element of
new consent in 1945 to 1946 is necessary. Consequently, they cannot now
deny the relevance of the new facts, on the basis that the facts relate only
to tacit consent, as they did before. They said earlier that these facts
relate only to a question of tacit consent, and tacit consent played no
part in the Court's reasoning in rgso. They can no longer say that.
lndeed, Mr. President, they themselves now rely on facts derived from
the record from this period in an attempt to establish that consent, and,
therefore, I cannot see how they can possibly any longer deny the rele
vance and indeed the significance of these new facts, derived from the
very same record-from the very same period-as bearing on the question
of such tacit consent, or tacit intent. .
In their attempts in the Preliminary Objections proceedings to show
that the Court in 1950 was, in fact, aware of these facts, the Applicants
came off second best.
Applicants are also faced with this positionhat sorne of the honourable
Members of this Court, in their opinions on the Preliminary Objections,
indeed placed very heavy reliance on sorne of these new facts. We
referred to that in the Counter-Memorial, II, at page rss. and 1 need not
elaborate on that at this stage.
Consequently, Mr. President, the Applicants were now forced, for the ARGUMENT OF MR. DE VILLIERS
fust time, to consider these new facts on their merits-for the fust time
in these Oral Proceedings, they were forced to consider them as factors
bearing on the intent of the Parties. How did they set aboutit?
To summarize, Mr. President: Firstly, as regards the facts showing
deliberate abstention from express provision regarding a transfer of
supervisory functions to the United Nations, the Applicants' attitude is
a completelyillogical and an untenable one. We pointed out before that
they admit that there was a deliberate abstention, both on the part of the
United Nations and on the part of the Members of the League at its
final session, to make a specifie provision in that regard. But, Mr. Presi
dent, they take up the attitude that this deliberate abstention related only
to an express agreement and not.to a tacit or implied agreement-that
the delibera te abstention related only to the form of the agreement, and
not to the existence or the content of the agreement. I have dealt with
the illogicality of that attitude before and I need not repeat my submis
sions.
Secondly, Mr. President, as regards the attitudes of States, they
attempt to refute our demonstration that there was a general acceptance
that supervision had not passed to the United Nations. They attempt to
demonstrate that by showing a contemplation on the part of certain
States that the Mandate was in existence. That is the way in which they
try to meet our case in that regard-by arguing an entirely different
question, as we have shown.
My learned friend, Mr. Moore, attempted positively to demonstrate
the contrary to what we are contending for. He attempted to demonstrate
a general contemplation that supervisory power was vested in the
United Nations-a general contemplation on the part of the States
concerned-and that attempt, Mr. President, as the Court would know,
has met with singular lack of success. I need not repeat our submissions
and the conclusions at which we arrived after a full review of all the
relevant facts in that regard.
In the result, Mr. President, the significance of these new facts has not
been affected by any of these various attempts made by the Applicants
to minimize their significance.
In conclusion, Mr. President, 1 may submit, just by way of summary,
the following factors asto our contention in regard to the approach to the
1950 Opinion.
In our submission, it becomes perfectl;Yclear, with respect, that this is
indeed a case where the Court will feel ltself constrained to re-open the
consideration of the whole matter, and to consider it afresh on its merits.
The reasons for our submission are briefly the following: Firstly, on the
interpretation given to the 1950 Opinion by bath Parties, as at the
pre~e sttge, the reasoning of the Court rested on sorne basis of consent
in 1945 to 1946. Secondly, all facts rclating .to consent are, therefore,
relevant, and sorne crucial facts were not before the Court in 1950. That
also now appears to be common cause. Thirdly, on the Applicants'
construction of the 1950 Opinion, the Court's reasoning regarding
Article So, paragraph r, was at fault. On their construction, the Court's
reliance on this Article was one of the main bases of the Court's reasoning
-at least this was the construction the Applicants gave in 1962. They
did not advert to this point in the present Oral Proceedings, namely asto
the importance of the reliance placed by the Court on Article 8o, para
graph I, in 1950. The fourth point, Mr. President, is that the Court's SOUTH WEST .-\FRICA
Opinion in 1950, on thls point, was a majority one, and that the minority
view was more favourably received by authors and publicists on inter
national law in their subsequent comment on the judgrnent and opinions.
We deal with the review of the relevant publications in the Counter
Memorial, Il, at pages 148-151, where we point out also that sorne of
these authors appear to have had access to the additional material, or
sorne of the additional material, which was not before the Court in 1950,
and which we have now laid before the Court.
The fifth pointis that the whole matter was thrashed out in 1962, and,
as we have shown, such indications of opinion as are afforded by the
judgment and the opinions, given in 1962, uniformly support the view
that the 1950 Opinion was not correct in the respect under consideration.
Sixthly, Mr. President, we say that the very fact that Applicants,
which commenced by saying that the 1950 Opinion was "clear, sound and
that it means what it says" (Vll, p. 302), have now changed their inter
pretation thereof, and in a material respect they suggest that it was
incorrect. That fact in itself, Mr. President, indicates, in our submission,
the need for a complete reappraisal.
ln ail these circumstances, we respectfully submit that this Court will
not hesitate to re-open fully the question of a transfer of supervisory
powers, or a substitution of supervisory organs, and that the Court will,
for the reasons which we have given, come to a contrary conclusion to
that arrived at in 1950.
Mr. President, in regard to the 1955 and 1956 Opinions, we find that
the Applicants, in the verbatim record at page !09, sufrra,refer to these
opinions as "confirmatory and interpretive of the 1950 Opinion". I need
hardly point out that the word "confirmatory" is wrong. One can see
from the requests for the opinions, as they are recorded in the opinions
themselves, that the Court was, in both instances, asked for an inter
pretation only of the 1950 Opinion. The passages in that regard are so
clear that they hardly need demonstration. The first one is in the l.C.].
Reports I955. at page 69. We find that the first paragraph of the request
for an advisory opinion read as follows:
"Is the fqllowing rule on the voting procedure to be followed by
the General Assembly a correct interpretation of the advisory
opinion of the International Court of Justice of II July 1950."
The second paragraph proceeded to ask a further question "If this
.interpretation ... is not correct".
In the 1956 Advisory Opinion, the record, at page 24, shows that the
request read as follows:
"Is it consistent with the Advisory Opinion of the International
Court of Justice of II July 1950 for [certain things to take place]."
It is also significant, Illr. President. that Judge Read, one of the judges
who gave a minority opinion in 1950 on this question, had no difficulty
in both these instances in 1955 and in 1956 about voting with the
majority. Sir Arnold McNair was, by then, no longer on the Court. I am
quite certain that Judge Read would have been rather surprised to hear
a suggestion that he thereby confirmed an opinion which he had, in the
respect in question, considered to be wrong at the time it was given, and
it would have been more surprising if he had done so, Mr. President,
without giving any reasons why he decided to give such confirmation,
and no reasons at ali for hls change of attitude in that regard. ARGUMENT OF MR. DE VILLIERS
It is perfectly clear, therefore, that these opinions take the matter
no further as far as the merits of the conclusion arrived at in 1950 are
concerned.
Mr. President, that brings me to the conclusion-of the oral presenta
tion on the question of Article 6--of the continued existence, or the
lapse, of supervisory functions, or of an obligation of accountability, as
provided for initially in Article 6 of the Mandate.
1 need not summarize the respective attitudes of the Parties again-1
shall give a summary of aUthe varions alternative contentions at the end
of this consideration, after 1 have dealt also with the next question which
concems the lapse, or otherwise, of the Mandate itself.
Now, Mr. President, before dealing with the merits of that question,
1 should Iike to deal with a representation of our attitude in that regard,
which has been given to the Court by my learned friends on behalf of the
Applicants. My leamed friend, Mr. Gross, persisted in indicating to the
Court in his oral presentation that the Respondent has now reversed or
abandoned arguments advanced in the 1962 proceedings on the Prelimi
nary Objections in this regard.
This, of course, is entirely unsound, Mr. President. It is incorrect. lt
will be very clear from the written pleadings to date, and from the argu
ment which we advanced in the Oral Proceedings in 1962, which is fully
on record, that there has been no change of attitude whatsoever in this
regard. The position is simply this, that for purposes of the argument
whlch we presented to the Court at the time on the question of the Preli
minary Objections regarding jurisdiction, we made certain assumptions
for purposes of that argument, and we have nowhere, Mr. President,
altered our attitude as to what was contended for to the Court in that
regard.
One of our Preliminary Objections taken in 1962 to the jurisdiction of
the Court, the Court will recall, was based on an argument that the
Mandate had lapsed "in the sense and to the extent that it is no longer
'a treaty or convention in force' within the meaning of Article 37 of the
Statu te of the Court". That we find in the Preliminary Objections, page
298 (1).
We indicated, Mr. President, in those Preliminary Objections, that
the Court in its 1950 Opinion, in effect, held that "in addition toits opera
tion as a treaty or convention, the institution known as the Mandate for
South West Africa acquired an objective or a 'real' existence, as consti
tuting a special status for the Territory, and that in this objective or
'real' aspect the Mandate survived the dissolution of the League". That
we find in the Preliminary Objections, at page 299 (1). It was purely a
matter of an interpretation which we put on the 1950 Opinion in that
regard, and we said that that was what we understood the 1950 Opinion
to have held, namely a continuation of the Mandate in the sense of being
an institution in that objective or real sense. We proceeded to state, and
I quote from the Prelimmary Objections at page 299 (1):
"The correctness or otherwise of this proposition does not
require to be reviewed for the purpose of Respondent's Objection
to jurisdiction-as will appear from reasons dealt with hereinafter.
Irrespective of the question whether the Mandate as an institution
survived the League in an objective or 'real' sense and, if so, with
what exact content and to what exact extent, Respondent contends
that in its aspect of operating as a treaty or convention the Mandate SOUTH WEST AFRICA
for South West Africa lapsed upon dissolution of the League, and
that for this reason Applicants' claim to jurisdiction must fail."
Our attitude could hardly have been expressed more explicitly. We
were not addressing argument to the Court on the question whether that
finding of an objective or real existence of the mandate institution was
a correct one or not. \Ve were prepared to make assumptions bath ways
in that regard. Our contention was that in the aspect of being a treaty
or convention, the Mandate had lapsed.
We dealt again with this aspect in the Preliminary Objections at page
359 (1), and, further, Mr. President, in the oral argument in the Prelimi
nary Objections proceedings, the attitude we took up in that regard was
very clearly stated in severa! instances. Right at the outset of the
argument, my learned friend and Agent, Dr. verLoren van Themaat, in
the course of his opening statement, said the following:
"We state there that our submission under the first Objection
concerns only the Mandate as an agreement; our contention being
that as a treaty or convention the Mandate is no longer in force. We
state further that no submissions are advanced about the question
whether the 1\landate in the wider sense of being an institution
survived the League or not. The logical effect of this attitude is that,
although we make no admissions in that regard, we are prepared for
the purposes of our argument in these Objections to assume that
the Mandate as an institution survived the League." (VII, p.21.}
Later, Mr. President, I had oq:asion to say the following, which is
recorded at pages 33-34 (VII) of the Oral Proceedings:
"1 am merely indicating for the moment that we are: without
making admissions, assuming for purposes of our argument that the
Mandate is still in force as an objective institution; meaning, on the
one hand, the title, the rights, the powers of the Mandatory under
the Mandate, and on the other hand, the substantive Trust obliga
tions undertaken by the Mandatory which obliged it to use those
powers and rights for the advancement of, and the well-being of the
inhabitants of the Territory. We are asswning, for purposes of
argument, that to that extent the Mandate remains in force, but
we are contending that it ceased to be in force as a treaty or conven
tion, asan international agreement."
That attitude was again repeated on scveral occasions during the
argument of Counsel in 1962. 1can refer to the Oral Proceedings, at page
66, at pages 69-71, and at pages 353-354 (VII). This last passage occurred
in my reply, and there 1indicated specifically, Mr. President, that it was
not necessary for our purposes, as far as the Preliminary Objections were
concerned, to go into the question of severability or inseverability of
Article 6 from the rest of the Mandate. 1 indicated the severability of
Articles 6 and 7 which were then under consideration, on the one hand,
from the rest of the mandate institution, on the other. 1 indicated that
we were for the purposes of argument on the Preliminary Objections
prepared to make assumptions either way in that regard. If one assumed
mseverability, then our contentions about Articles 6 and 7 having lapsed
would mean that the whole mandate institution had lapsed, and that
would, for purposes of jurisdiction, have led us to the conclusion that the
Applicants had no jurisdiction in these proceedings. On the other hand, ARGUMENT OF MR. DE VILLIERS
if the conclusion was that there was severability of Articles 6 and 7 on
the one hand, from the rest of the institution, on the other; then the
Mandate could survive, but without any international accountability or
administrative supervision, and without any jurisdiction on the part of
this Court as initially provided for in the compromissory clause. That
again led us to the same conclusion in so far as the jurisdiction of the
Court was concerned-an attitude, therefore, Mr. President, which made
it perfectly clear that that was a matter which we were leaving open;
we were not then advancing contentions or argument to the Court on the
question whether the Mandate did or did not survive in its form of an
institution with an objective existence.
But now we find, Mr. President, that in the Judgment on .the Prelimi-
nary Objections, the Court in 1962 statcd the following:
"lt is argued that the rights and obligations under the !11andatein
relation to the administration of the territory of South West Africa
being of an objective character still exist ... " (I.C.J. Reports I962,
pp. 332-333-)
1 draw attention, Mr. President, to the word "argued". That word, of
course, in the light of the explanation which 1 have just given, was not a
correct indication of what our attitude was, in fact, in 1962. Mr. President,
in our Counter-Memorial, we referred to this matter-to this passage in
the Judgment-an<:l. we stated in Book Il, at page 166 (II), in footnote 3:
"If the Judgment on the Preliminary Objections is to be understood as
suggesting ... that Respondent contended positively that sorne aspects
of the Mandate still exist, such suggestion would be erroneous."
But, Mr. President, when we look at the manner in which the Appli
cants deal with the subject, we geta different impression. The Applicants,
in their presentation, rely on this passage in the 1962 Judgment which
1 have just quoted, in order to contend that we have now abandoned a
prior argument which we advanced in 1962. I quote from the verbatim
record at page II2, supra, where the Applicants, after quoting this
passage from the 1962 Judgment, said the following:
"This was, as the Applicants understand it, an alternative argu
ment-! have just quoted from the Court's characterization of the
argument.
In the present phase of the proceedings, however, Respondent has
·reversed or abandoned this argument, alternative or otherwise.''
Mr. President, surely there is no justification whatsoever for speaking
of reversing or abandoning any argument, alternative or otherwise. On
the same day my learned friend, Mr. Gross, said the following, according
to the verbatim record at page 129, supra:
"Respondent, accordingly, repeats its rejected contention asto the
survival of the Mandate as a treaty, and reverses, or repeals, its
contention asto the survival of the Mandate in a 'real' or 'objective'
sense. As I have said before, it matters little for the purpose in this
context whether such argument was made by Respondent as an
alternative argument or not."
And we find a repetition of the same argument by my learned friend
in the verbatim record at page 176, wpra, which I need not quote.
Mr. President, itis quite clear from the record in 1962 to which 1 have
referred again, that we did not in rg6z argue that the Mandate was ins66 SOUTH WEST AFRICA
force in any sense whatever. We merely assumed that for purposes of
argument. We assumed that the Mandate continued in force as an institu
tion, or in a "real" or "objective" sense, and we made it perfectly clear
that we reserved our position as far as that question was concerned. We
did not address any argument to the Court in 1962 on the question of the
lapse or survival of the Mandate.
It was for this very reason, Mr. President, that in the joint dissenting
opinion of the honourable President and Sir Gerald Fitzmaurice, we find
the following at page 495:
"The fact that the issue raised by the First Preliminary Objection is
not whether the Mandate is simply 'in force', appears to have been
complete!y lest sight of. The issue arising on Article 37 of the Statute
is whether the Mandate is in force as a trcaty 01'convention. For this
purpose it is not sufficient to rely on the Court's 1950 Opinion as
establishing that the Mandate is, in any case, in force on an institu
tional basis."
This passage, Mr. President, very clearly drew the distinction between
the two aspects of the matter, and referred to the attitude which we took
in that regard.
The Applicants now say in the verbatim record at page 176, supra:
"It was, of course, clear on the face of Respondent's statement
before this honourable Court in rg62, and in its written pleadings on
.:he Preliminary Objections, that Respondent's argument in this
respect was an alternative argument."
Mr. President, even this statement is wrong. There was no "alternative
argument". There was one argwnent on our part. That was an argument
which related to the question of survival, or otherwise, of the Mandate as
a treaty or convention. On the question of survival or otherwise of the
Mandate as an institution there was no argument. There was simply a
willingness on our part to make assumptions bath ways as far as that
question was concerned, for the purposes of the only argument which we
did put before the Court. That I thought I ought to rnake clear to the
Court before cornmencing this argument on the question of the lapse of
the Mandate as a whole.
It now becomes necessary to consider, for the purposes of these
proceedings, whether the Mandate survived in any sense whatsoever, in
an institutional senseor in the sense of a treaty or convention.
The Court will see from the pleadings and from the manner in which I
have advanced this argument that we approach this question in this
particular way. We do not say that the Mandate lapsed for sorne reason
or other, and that consequently there is no longer any accountability
under Article 6. We argue these propositions in the inverse arder. We say,
Mr. President, that the accountability provided for in Article 6 has
lapsed. We advance that argument fust and foremost. It is not based on
any assumption which we make as to severability or inseverability of the
obligation of accountability from the rest of the mandate institution.
For purposes of the argument that Article 6 has lapsed we are again
prepared to make assumptions in either direction, and we made those
assurnptions in both directions, as I dealt with the argument regarding
Article 6. It does not matter whether we start off with an asswnption
that Article 6 was an essential part of the mandate institution, or that it
was not an essential part of the mandate institution, or whether we start ARGUMENT OF MR. DE VILLIERS
off with an attitude of neutrality in that regard--of not paying attention
for the moment--of not giving any significance-to the question whether
it was or was not essential; we can make ali those assumptions, each and
every one of them, but still on a consideration of the field which 1 have
covered in my argument so far, we can come to only one conclusion, and,
that is, that Article 6 of the Mandate lapsed on dissolution of the League.
And it is as a consequence, Mr. President, of that conclusion that the
further question then arises: must one look upon Article 6 as having been
an indispensable, inseverable part-an essential part--of the mandate
institution, so that upon its lapse the whole of the mandate institution
also lapsed, or was it severable, so that the rest of the institution could
survive without an obligation of accountability?
[Public hearing of IJ April I965]
1 am dealing with the contention of Respondent that the Mandate as
a whole has lapsed, and I have pointed out that this is a contention
which follows on the contention that the obligation of accountability as
provided for in Article 6 of the Mandate has lapsed. Indeed, much of the
argument which I have already addressed to the Court in regard to the
lapse of Article 6 of the Mandate is relevant also to the argument to
which 1 am addressing myself now.
The basis upon which 1 contend for lapse of the Mandate as a whole is
purely and simply one of severability or inseverability, divisibility or
indivisibility. The question is, in other words, whether, if one accepts
that Article 6 has lapsed, the rest of the mandate institution was, in
accordance with the intentio'ns of its founders, capable of further exis
tence.
Mr. President, we point out in the Counter-Memorial, Il, pages r65 to
r66, and in the Rejoinder, V, pages 58 to 59, that, as a matter of legal
principle in international law, the possibility of severability or separa
bility of treaties or institutions is weil recognized. There is consequently
no reason in principle why the Mandate should not continue in existence,
even in the absence of any duty of accountability. There is no general
legal principle in international law which makes that impossible.
Further, Mr. President, as a question of notion and a question of fact,
it would not be impossible at all to have a mandate institution without an
obligation of accountability. It would surely be possible to have the
notion, as described in the 1950 Opinion, of a title which is limited by the
concept of a trust, the title being held by the titleholder for the purpose
of complying with a trust, which operates in favour of the inhabitants of
the territory. Whether or not there would be accountability to an inter
national institution, in the case of a trust of that kind, could not affect
the legal nature of the obligation resting upon the titleholder-the
trustee, or the mandatory-to comply with the obligations of the trust
and to utilize his powers for the purpose for which they were conferred
upon him, namely the advancement, the promotion to the utmost, of the
well-being and prol?ress of the inhabitants of the territory.
There are many mstitutions in international law which do not contain
any provision for reference of disputes to adjudication and where there
is no question of enforceability of obligations through ordinary legal
processes-through ordinary processes of adjudication-and yet the
existence of legal obligations is fully recognized; and there are variouss6s SOUTH WEST AFRICA
ways, with which 1 need not deal-the Court is fully acquainted with
them-in which obligations of a legal nature in international law can, in
sorne way or other, be enforced, even ifnot through the ordinary legal
processes of adjudication.
In this case the Court found in 1962 that the Mandate was still in
existence, together with an obligation to submit to the adjudication of
this Court on questions arising from it. If one has as a premise a mandate
with an obligation ta submit ta adjudication, it becomes perfectly clear
that there could be no national reason why there must necessarily also
be submission to international accountabihty, or international adminis
trative supervision. But even if there should be no provision for adjudica
tion at ali, even if Article7 should no longer exist, it is still notionally
possible to have a mandate in the fonn of a trust institution, which
would be an institution with legal rights and with legal obligations.
The only question, Mr. President, with which we are concerned here, is
the question of the presumed intent of the authors of the system, i.e.,
whether they would have intended that a mandate should exist without
international accountability-without submission to supervision on the
part of an international organization. And that is the only legal basis
upon which this question of severability or inseverability can be decided.
One is faced immediately with the difficulty that it seems fairly obvious
that the authors of the mandates system never, in fact, applied their
minds to this question; they never in fact anticipated that the League
would be dissolved, and consequently, they could never have had any
factual intent on this question whether, if the League was dissolved and
the supervisory organs in respect of accountability fell away, without
any replacement in that regard, the rest of the mandate institution
should survive or whether it should lapse.
The present inquiry, Mr. President, is consequently, not an inquiry
into actual intentions-that seems fairly obvious; it is an inquiry into
presumed intentions. Such an inquiry often arises in matters of this kind,
because the factor which raises the question of severability or inseverabil
ity is very often one which arises for the first time a long time after the
original institution was agreed upon, or enacted by legislature, or what
ever the position might be. One has, therefore, to argue back, from a
situation which has arisen in practice, to see what would have been the
intentions of the particular legislature, or the particular contracting
parties, would have been on this question, if it had been raised for their
consideration.
The main guide, in the present case, to the presumed intentions of the
authors of the Mandate, on the point under consideration, is afforded by
an appraisal of the role which it was intended that League supervision
should play in the mandates system, and by an appraisal of the degree
of importance attached to it by the authors of the mandates system.
We have to look at ail the relevant evidence in order to see to what
extent they regarded this part of the institution as important-ta what
degree they regarded it as essential. For that purpose one bas to weigh all
the evidence and have regard ta ali the indications-one way and the other.
It, therefore, follows, Mr. President, as we also ·point out in our
pleadings, that the nature of the question to be determined of necessity
imports sorne element of speculation into the inquiry, and for tha~
reason it is not surprising that opinions which have been expressed on this
question have, in fact, differed. As we have pointed out in our pleadings, ARGUMENT OF MR. DE VILLIERS
the 1950 Advisory Opinion appeared to be based on the premise that
Article 6 was, indeed, severable from the rest of the Mandate. \Ve referred
to that earlier in these oral proceedings, and also in the Oral Proceedings
on the Preliminary Objections, VII, at pages 69 to 71, in 1962.
. This contemplation of severability appeared very clearly from the
minority opinions of Judges McNair and Read. As 1 pointed out before,
they both came to the conclusion that the Mandate continued in existence
although Article 6 had lapsed. But the view of severability was also
implicit in the majority opinion. It is particularly important to note that
the Court first came to a conclusion that the Mandate survived the
League as a trust, in regard to both the powers of the mandatory and the
obligations imposed by Articles 2-5 of the Mandate. The Court first came
to that conclusion before considering the effect of the dissolution of the
League on Article 6 of the Mandate.
If1may refer the Court to the Opinion at pàge 133, it is very significant
to see how the Court put the matter there, and what its approach to the
enquiry was. The Court referred, at page 133, to the two kinds of inter
national obligations embodied in the Mandate, and it defi.ned the fi.rst
mentioned group of obligations as those described in Article 22 of the
Covenant and in Articles 2-5 of the Mandate. In regard to these obliga
tions the Court said:
"These obligations represent the very essence of the sacred trust
of civilization. Their raison d'êtreand original object remain. Since
their fulfi.lment did not depend on the existence of the League of
Nations, they could not be brought to an end merely because this
supervisory organ ceased to exist. Nor could the right of the popula
tion to have the Territory administered in accordance with these
rules depend thereon." (I.C.J. Reporis I950, p. 133.)
Mr. President, the emphasis here falls on the fact that these trust
obligations were not de.pendent for their existence on the existence of a
supervisory organ, or, by implication, on the existence of a system or an
obligation of accountability. That was the basis of the Court's reasoning
on this whole problem, and, as 1have said, the Court completed, at pages
133-136 of the Opinion, its consideration of the question whether the
Mandate, in relation to the rights and powers of the mandatory and the
trust obligations in Articles2-5, had survived before it gave consideration
at ali to what it called the obligations of the second group relating to
measures of implementation, under which the Court then dealt with
Article 6 ofthe Mandate.
Those, then, were the opinions on this point in the 1950 Advisory
Opinion of the Court.
In 1962 we fi.ndthat Judge Bustamante expressed a view to the con
trary. We quote that view at pages r68-169 of the Counter-Memorial (ll).
I do not propose to read it to the Court. It is to the effect that the obliga
tion of accountability, as provided for, was to be regarded as an essential
part of the mandate institution.
There is also a passage in the Judgment of the Court itself in 1962
which we quote at page 168 of the Counter-Memorial, which, although
not very clear, may or may not have been intended to apply to this
particular question relating to Article 6. The passage reads as follows:
"The fi.ndings of the Court [i.e., in the 1950 Advisory Opinion] on
the obligation of the Union Government to submit to international570 SOUTH WEST AFRICA
supervision are thus crystal clear. Indeed, to exclude the obligations
connected with the Mandate would be to exclude the very essence
of the Mandate."
Why I say this is not perfectly clear, Mr. President, is becanse there is a
general reference to the obligation to submit to international supervision.
In the context in which this expression occurred JI dealt with it yester
day), the Court, as far as one can see, express!y an delibera tely refrained
from dealing with the problems which arose in regard to Article 6 of the
Mandate. 1 gave the reasons yesterday why we say that that is so. The
Court did deal with the other aspect of what it regarded as essential,
namely judicial protection, and it may be that in referring here to the
obligation to submit to international supervision the Court had in mind
the dual aspect which apparently underlay its reasoning, i.e., the concept
that there had to be sorne supervision, either administrative or judicial,
or both, in the manner in \vhich 1 explained it to the Court yesterday.
Therefore, when the Court spoke of "to exclude the obligations connected
with the i\landate would be to exclude the very essence of the Mandate",
it had in mind, not necessarily that there had to be administrative super
vision of a mandate, but that there had to be supervision of one kind or
the other-that appears to have been the basis of the Court's reasoning
in this particular part of its Opinion. As 1 have said, that is a passage
which may or may not have a bearing on the subject. The point 1wish to
make is that the opinions which have been expressed thus far, are not
harmonions-and, indeed, Mr. President, one does not find anywhere
that a court, or this Court, has ever given full and systematic considera
tion to the question of severability or inseverability, in answer to con
flicting contentions addressed to it by parties appearing before it.
Opinions have been expressed in isolated respects, as 1 have indicated,
but there has been no comprehensive consideration of this whole question
anywhere, as far as 1 have been able to discover.
In the Counter-Memorial, n, at pages 165-166, we also refer to (and
quote) a passage from the minority opinion of Judges Spender and Fitz
maurice in 1962, dealing with the principles of severability and indicating,
although not quite explicitly, a view tending towards the conclusion of
severability inthe partictùar case of Article 6 of the Mandate-but there,
too, the matter was not dealt with fully or comprchensively, as far as
this particular aspect of application of the principle was concemed.
Mr. President, to the authorities which we already quote in the
pleadings and to which 1 have now made further reference, 1 might also
add a reference to an article by Professor James F. Hogg in the Minnesota
Law Review, Volume 43, January 1959, No. 3, at pages 435-436-the
title of the article is "The International Court: Rules of Treaty lnter
pretabon". In the course of this article Professor Hogg expressed the
view that it was quite obvions that the mandate institution could exist
without accountability, even if it was also quite obvions that it would be
better to have accountability, if possible, and he then expressed certain
views on the basis on which the Court came to its conclusion in 1950 asto
the survival of accountability. The point I make for the moment is merely
that his view was based on a conclusion that there was severability, as
far as the mandate institution was concemed, in regard to Article 6.
A view to the other effect, one finds in Keisen-Principles of Inter
national Law r952, page 164, in footnote 48. Again, the question is not
fully discussed. It is merely a statement of a view by the leamed author. ARGUMENT OF MR. DE VILLIERS 571
We pointed out, Mr. President, in the pleadings and in this oral
argument also, that the views and the conduct of various interested
States at and shortly after the dissolution of the League, showed ambi
guity and difference of opinion on this very question.
In dealing fust with the States present at the last Assembly of the
League of Nations, we pointed out in the Rejoinder, V, at pages 59-63,
that their attitudes appeared to be ambiguous. The ambiguity, as we see
it and as we analyse it on those pages of the Rejoinder, Mr. President,
appears to amount to this, that if one considers the actual statements
made on behalf of mandatory powers at the time, and at the reference
in the League's resolution to those statements, i.e., to the manner in
which those statements were made and the effect thereof as described in
the resolution of the League, one can put one of two possible interpreta
tions on them. The one interpretation would be that the States concerned
were of the opinion that the mandates would remain in existence as legal
institutions, with legal obligations involved in them, but without an
obligation of accountability. Such an interpretation would, of course,
premise a view of severability of the obligation of accountability from
the rest of the mandate institution. The other possible manner of looking
at those statements, and at the League resolution, is that indicated in the
joint dissenting opinion of the honourable President and Sir Gerald
Fitzmaurice, which involves an indication that, in the normal course of
events, the mandates, as institutions, would have lapsed completely
-i.e., that in law nothing would have remained of them after the disso
lution of the League-but that the mandatories undertook that, as far as
the substantive obligations, as distinct from an obligation of accountabi
Ety, were concerned they would act, until further arrangements were
made, as if those obligations of the mandates were still in force. That is a
possible alternative construction whichcould be placed upon the situation.
W'hat I want to emphasize at the moment is that this ambiguity
related to a choice between the two alternatives contended for by the
Respondent-in other words, firstly, the lapse of the old Mandate, or
alternatively, the survival of the Mandate without accountability to a
supervisory authority. There was no contemplation at aU, as far as one
can see, of the alternative contended for by the Applicants, namely the
survival of the Mandate with a substitution of the United Nations for
the League as an administrative supervisory authority.
I have given this view of the varions attitudes of States and authorities
in order to indicate what possible range of views there could be on this
subject, and to what extent there have, in fact, in the past, been differen
ces of opinion, and even uncertainty, upon the subject.
lt may be convenient at this stage, Mr. President, to refer to an argu
ment raised by the Applicants according to the verbatim record, page
212. supra, which reads as follows:
"Acceptance by Respondent of this resolution [the final resolution
of the League] clearly involved an explicit undertaking of sorne sort,
unless it be deemed a mere statement of Respondent's present
intention as of that moment. In that case, however, the phrase
'until other arrangements have been agreed between the United
Nations and the respective Mandatory Powers' would have been
meaningless, if not, indeed, misleading."
Now, Mr. President, we have given our reasons for submitting that the SOUTH WEST AFRICA
resolution did no more than take note of expressed intentions and that,
consequently, agreement to the resolution did not involve any under
taking in law at ali. In other words, Mr. President, we submit that if the
true view should be that the whole mandate institution lapsed on the
dissolution of the League, those statements made.by mandatories did not
have the effect of causing the mandates to survive in law, not even to the
extent of the substantive rights and obligations, to the exclusion of
accountability. The situation, in our submission, was merely one where,
if it is correct to say that the mandates did lapse upon the dissolution of
the League, those manda tories acted on the same basis as if the mandates
were still in force, and not on a legal basis which involved that the man
dates were in force.
Mr. President, the point which 1 wish to make at this stage is that,
even if we were to be wrong in this respect, even ifthose statements of
intent were to be regarded as undertakings in law, it would still mean that
the undertakings related only to the substantive powers and obligations
under the Mandate, and notto an obligation of accountability, as orginally
provided for in Article 6 of the Mandate. If one puts that construction
on what happened at the final assembly of the League, the result would be
exactly the same as if one said that Article 6 was severable from the rest
of theinstitution,that accountabi1ity thereforelapsed, but that the rest
of the institution survived. That very same result would foUow from
putting upon the situation the construction 1 have just dealt with-the
construction of saying that the Mandate lapsed on the dissolution of the
League, or that it would have lapsed but for a legal undertaking on the
part of the mandatories to carry on with the substantive obligations
and powers under the Mandate.
So, Mr. President, if an undertaking, as suggested, were, in fact, given,
it would seem to suggest that in the minds of the States there assembled,
it was possible to continue the substantive obligations of the Mandate
without making provision for any supervision, and that the undertakings
could not have had any greater effect than to provide for such continua
tion, that is, without any supervision.
Now, Mr. President, it appears from the review which we have given,
that there were extensive differences of opinion also in the views expressed
in the United Nations in the years 1946-1949, on the question whether
the Mandate was still in existence. As we have shown in the Oral Pro
ceedin as w.eil as in the Rejoinder, V, pages 63-67, there was a consider
able difference of opinion regarding the question whether the Mandate
existed at all. However, as we have also shown, the difference of opinion
again related substantiallyto the two alternatives for which we contend,
namely, either the lapse of the Mandate as a whole, or alternatively, the
survival of the Mandate without any accountability to a supervisory
authority~a oa hen exclusion of the position, contended for by the
Applicants, namely of a survival of the Mandate with accountability to
the United Nations. It was only from the end of 1948 that a few States
adopted the attitude now urged upon the Court by the Applicants-and
then, as we have shown, for different reasons. And we have also indicated
that those States were, in sorne cases, not consistent with themselves, and
they in no case advanced a contention in the form in which it is now
advanced to the Court by the Applicants, or on the same grounds.
1 have dealt with the various possible ways of viewing the matter,
Mr. President, for the purpose of showing that the Court is not being ARGUMENT OF MR. DE VILLIERS 573
forced into a straight-jacket, asit were, in the manner which was sug!?ested
by the Applicants at one stage of the proceedings. The suggestion m the
Reply, as we read it, was that the Court is now, by virtue of the attitudes
adopted by the Parties, really forced to decide only on the basis of one
of two extremes, the two extremes being either that the Mandate must
have lapsed altogether, or that the Mandate must exist with accountabili
ty to the United Nations. The review 1 have given of the various possible
views one could take of the situation, and of the various possible views
that have been taken in the past, indicates very clearly that there are
severa! other possibilities to be considered in this regard-alternatives
on the basis of which the Court could come to a conclusion.
l\Ir. President, in regard to the attitudes of States, sorne reference
should be made also to certain statements made on behalf of Respondent
which, in the earlier years up to 1948, would seem to show a contempla
tion of a continuation of the mandate obligation. Again we must empha
size, as we did before in dealing with those statements, that they clearly
showed that any continuation of the Mandate would not, in Respondent's
view, involve any accountability t'o the United Nations. The question
whether in those circumstances the Mandate could still continue as an
institution, is a pure question of law, involving, as has been noted, an
ascertainment of the presumed intentions of the authors of the mandates
system regarding a matter to which they had not, in fact, directed their
minds. We submit, therefore, Mr. President, that statements by the
South African Government of the tîme on a pure question of law of that
kind ·can, by themselves, have only very limited probative value, either
as an admission, or otherwise. It is a point with which 1shall deal further
at a later stage in order to assess the legal value to be given to statements
actually made at the time. We refer in this regard to the 1950 Opinion
of the Court when the Court said, referring to certain statements made
by Respondent:
"These declarations constitute recognition by the Union Govern
ment of the continuance of its obligation under the Mandate and not
a mere indication of the future conduct of that Government. Inter
pretations placed upon legal instruments by the parties to them,
though not conclusive as to their meaning, have considerable
probative value when they contain recognition by a party of its
own obligations under an instrument. In this case the declarations of
the Union of South Africa support the conclusions already reached
by the Court." (l.C.J. Reports I950, pp. 135-136.)
Now, Mr. President, there are certain points to be noted from this
statement by the Court. The first is that the declarations were relied
upon by the Court solely as supporting a conclusion already reached, and
the Court, therefore, did not have to consider what value the declarations
would have had if the Court had been uncertain asto the correct inter
pretation of the Mandate. Secondly, Mr. President, it must be quite clear
that in this regarc:l one should draw a distinction between statements
relating purely to a question of law, on which opinions could differ, and
statements relating to a question of fact, or of mixed fact and law, such as,
for instance, the question whether there was, in fact, a certain onder
standing or a tacit agreement on a particular question. In our submission,
that isa self-evident distinction which would have to be drawn when
applying any principles of the kind which the Court had in mind in the
passage under consideration.574 SOUTH WEST AFRICA
Further, Mr. President, it is also significant that the Court relied on
these statements by the Respondent only to show a recognition on
Respondent's part that the Mandate existed. The Court did not place any
reliance on them in considering the second question, namely whether
supervisory powers had passed to the United Nations. The Court did not
even refer in that part of its Opinion to any of the statements made by
the Respondent. In our submission, Mr. President, this shows that the
Court did not interpret Respondent's statements as involving any
consent to a substitution or replacement of supervisory organs, although
it interpretcd them as acknowledging continuation of the Mandate. This
was again, Mr. President, in keeping with the Court's treatment of the
two questions as being severable-the question of the continued existence
of the Mandate, and the continued existence, or otherwise, of Article 6
of the Mandate and the obligation provided for therein.
A further question which could arise in connection with these state
ments is whether Respondent's conduct could have given rise to an
estoppel. We dealt last week with the principles of estoppel and set out
on Frida y what they involved. In our submission, they could clearly not
be applicable in a situation of this kind, forthe simple reason that there
is no indication whatsoever that any State changed its attitude in
relation to the Respondent, or in relation to this whole subject-matter,
on the basis of any of the statements made by the Respondent. There is
no evidence, and no suggestion whatsoever, of any such change of position
and, indeed, there could not be any such evidence because Respondent's
statements related to a continuation of the Mandate without supervision,
that is, a continuation of the sacred trust obligations. As a matter of
practice, whether the Mandate is to be regarded as being in force or not,
Respondent has continued to honour its sacred trust obligations under
the Mandate. And it has expressed its intention of maintaining this
attitude, whether it did so as a matter of legal obligation, or as one of
moral approach, a matter of policy to act in accordance with the spirit
of the Mandate, does not matter for the moment: that has been Respon
dent's factual approach to this whole situation.
Mr. President, it, therefore, seems unlikely in the circumstances that
any States would indeed have altered their attitude or their position to
their own prejudice, and there is, indeed, no suggestion, no allegation,
that any such alteration of position has occurred on the part of any
State-certainly not on the part of the Applicants.
It therefore seems, Mr. President, that that one essential element of
estoppel, the alteration of a party's position to his prejudice is completely
lacking in this instance, and that for that reason alone there could be no
suggestion of applying the principles of estoppel in this case.
Consequently, Mr. President, it is submitted that Respondent is fully
entitled to advance the contention that the Mandate as a whole has
lapsed. Our contentions in this regard are set out in the Counter-Memorial,
ll, pages r6;-r69, on the question of severability, or inseverability, which
arises here.For the reasons set out there we contend that the Mandatory's
obligations to report and account to, and to be supervised by organs of
the League, must be taken to have been intended by the authors of the
Covenant to forman essential and unseverable part of the Mandate, and
for that reason we submit that upon lapse of those obligations the whole
mandate institution must be taken to have lapsed in law.
We emphasized in the pleadings, Mr. President, and we do so again, ARGUMEXT OF MR. DE VILLIERS 575
that this conclusion is one which is arrived at on balance. It is arrived at
on an ex post factobasis which, as I have said before, necessarily involves
a measure of speculation asto the presumed intention of the authors of
the mandates system on a matter to which they admittedly did not give
positive and active consideration. It does not mean, in particular, that
ali States must at ali times have regarded accountability as an inseverable
part of the mandate institution, and the evidence on record with which
we have dealt is absolutely clear that they in fact did not.
It is also clearl\:1President, that the Respondent's own Govemment
in the years 1946-1948 clearly did not regard the matter in this light. The
contention which we now advance is, therefore, one which we ask this
Court to accept on a consideration of the legal position ex post factoand
one which does not accord with the expressed intention ofthe Respondent
Govemment at that particular time, nor with the views expressed by a
number of other governments at the tirne. I stress this because there was
a tendency, as I saw it, in my leamed friend's argument, and in the
argument advanced on behalf of the Applicants, to argue that if this
Court should come to a conclusion of inseverability, of essentiality, of
accountability in the mandate institution-particularly if the Court
should come to that conclusion on the basis of a contention which we
ourselves, on behalf of the Respondent, advance to the Court-it must
follow that ail States at ali times, including the Respondent, must
necessarily have had that view of inseverability. I am merely stressing
that that representation of the situation is an erroneous one, and that it
could lead to completely erroneous conclusions.
Consequently, Mr. President, the way in which we advance our con
tentions to the Court, it stillleaves these two possibilities. If our conten
tion in regard to inseverability is correct, it means that the whole
mandate institution lapsed on the dissolution of the League. Secondly,
if we are wrong in that contention, i.e., if the Court should find that the
accountability could indeed, according to the presumed intentions of the
founders of the institution, be severed from the rest of the institution,
the Mandate would still exist, but without accountability. And there is
the third way in which that same conclusion could be arrived at: it
concems the view which could be taken of events at the last session of
the League, i.e., that the institution lapsed, but that there was a renewed
undertaking on the part of Mandatories to maintain the institutions in so
far as obligations other than accountability were concerned. Our main
contention is, as I have said, that the Mandate has lapsed; the others
follow as alternatives-possible alternative views which could be taken of
the situation.
I would also point out, Mr. President, in this regard, although only
by way of comment asCounsel-I am not speakingin terms of any partie~
ular instructions 1 may have on this point-that there could not, from
Respondent's point of view, be very much difference between, on the one
hand, a situation where the Mandate itself has lapsed in totobut where
Respondent carries on in the spirit of the Mandate, administers the
territory in the spirit of the Mandate-and, on the other, a situation in
which the Mandate exists in law but without an obligation of accountabil
ity to the United Nations. From a practical point of view, and in view of
Respondent's expressed future policy of leading aH the peoples of the
mandated territory,or the prior mandated territory, of South West
Africa, to self-determination, it makes very little difference whether one SOUTH WEST AFRICA
views the situation at the moment on the basis of a mandate which is
legally in existence, together with a legal obligation to leadhe peoples to
self-determination, or whether one views it on the basis that the Mandate
has lapsed but that -Respondent acts on the basis of a firm policy to do
exactly that which the Mandate would have required of Respondent if
it had been in force. The important distinction between the attitudes
taken by the Applicants and Respondent is, as a matter of fact-as a
matter of practical importance-the question whether therc is oris not
United Nations supervision.
For reasons which pertain to the merits of this case and with which 1
do not want to deal fully at this moment-I may merely make a reference
toit in passing-this is considered to be of the utmost importance. This is
so, Mr. President, because Respondent considers that there are a number
of States at the United Nations which, for political reasons, and for the
purpose of achieving political objectives which, as Respondent sees it, are
in no way concerned with the merits of administration of South West
Africa, wish to force Respondent to apply policies in South West Africa
which it conceives to be of a disastrous nature-policies which, in
Respondent's view, can never lead to fulfilment of the objectives of the
Mandate, but only to the opposite end. It is from this point of view, in
this practical sense, that Respondent regards this issue of the lapse or
otherwise of accountability, and of supervision, as one of the utmost
practical importance.
Mr. President, as a matter of law our contentions are, as 1 have said,
that the Mandate as a whole has lapsed. Alternatively, if the Court does
not agree with our contentions asto severability or otherwise, the position
remains that the Mandate is in existence, but without accountability.
Now, Mr. President, let us consider the Applicants' reaction to this
contention on the part of the Respondent. The reaction is stated as
follows in the verbatim record at pages 129-130, supra:
"Although Respondent's argument in support of its second
alternative contention that the Mandate as a whole has lapsed
proceeds from a sound point of departure, that is, the ·nature, origin,
and purposes of the mandates system, and draws the sound inference
therefrom that international supervision was conceived as a basic
obligation, as an essential and integral element of the system, the
more logical conclusion following Respondenfs correct premises
in this context would no doubt have been Respondent's abandon
ment of its first alternative contention."
Now, Mr. President, there are various elements in this argument to
which I must draw attention. 1 begin with the Applicants' phrase that
"international supervision was conceived as a basic obligation". That
phrase is used as if it were part and parcel of Respondent's argument
also, asifthat was a matter of common cause between the Parties. I must
in this regard draw a distinction, as1 have done so often in the course of
this argument, and state that it is misleading to speak of "international
supervision" in this particular context. We pointed that out in the Re
joinder, V, at pages 67-68. It is particularly misleading, Mr. President, at
this stage of the proceedings, inasmuch as the Applicants assign a
specifie meaning. and specifie legal consequences, to this abstract concept
of international accountability or submission to international supervision.
One has to distinguish between the Applicants' contentions in that ARGUMENT OF MR. DE VILLIERS 577
regard, and our basic contention in that regard. We have always disputed
the existence of any obligation of international accountability in the
wide sense contended for by the Applicants, and a fortiori we have, of
course, never contended that such an obligation was an essential feature
of the Mandate. Our contention was, and still is, that our obligation of
accountability related to the specifie League organs, and that it was that
obligation which was essential in the mandates system. That distinction
is avery important one, and must always be borne in mind when con
sidering the attitudes of the Parties on this question of essentiality.
That appears quite clearly, Mr. President, if we analyse what are the
consequences of the Parties' attitudes on this question of essentiality
essentiality of the obligation of accountability as seen by the two Parties.
First, on the basis of the Applicants' contention in regard to inter
national accountability, what would be the consequences of considering
such a wide and vague obligation to be an essential part of the Mandate?
Secondly, what would be the consequences of considering the narrower
concept of accountability to specifie League organs, as contended for by
the Respondent, to be as an essential part of the mandate institution?
I deal fi.rst with the matter on the basis of the Applicants' contention
of a wide, vague obligation of international accountability. On the
assurnption that was the intention of the founders of the mandates
system that such an obligation was to be seen as being part and parcel
ofthe Mandate, it would seem, Mr. President, that the question whether
that obligation was essential, or was to be seen as essential, or not, would
reallymake no difference for present purposes, because the position would
be this: the effect of the Applicants' contention is that, inasmuch as there
is this general obligation to account or to be subject to international
supervision, the disappearance of a particular supervisory organ does
not affect the existence of the obligation. It could affect the practical
application of the obligation, it could affect the question whether the
obligation is, at a particular time, in operation or whether it is dormant,
but it could not affect the existence of the obligation at all. Consequently,
Mr. President, on dissolution of the League, according to the Applicants'
contention as to international accountability, that obligation was not
affected, but remained in existence on the analogy of what the Court
found in the Barcelona Traction case in regard to an obligation to submit
to adjudication. Therefore, Mr. President, in view of the fact that that
obligation would, on the Applicants' premise, have survived the dissolu
tion of the League, no question could arise asto the lapse of the mandate
institution as a result of lapse of the obligation because, on this hypothe
sis,the obligation remains in existence, as part and parce! of the mandate
institution, and whether it is regarded as severable or as inseverable from
the rest of the institution does not matter. The institution, on that
premise, survives, and it survives with an obligation of international
accountability as part and parcel of it. What is, then, still required in
arder to bring the Applicantshome on their contention, is consent on the
part of the Respondent to a substitution of supervisory organs, so asto
make the obligation operative and not to leave it in a dormant state. But
that is an entirely different question. The question whether the obligation
isto be seen as an essential part of the mandate institution or not, cannat
help the Court at ali in coming to a conclusion on the question whether
the Respondent did or did not give the necessary consent to a substitution
of supervisory organs: that is, and remains, a question of fact, which SOUTH WEST AFRICA
must be answered with reference to all the relevant facts, as we have
submitted before. That is the resultat wlùch one arrives on the basis of
the Applicants' contention as to the mea~li tngbe attributed to the
obligation of international accountability.
On the basis of Respondent's approach, Mr. President, the question is:
if our contention is correct, namely that the obligation was essentially
related to particular supervisory organs and that it would, therefore,
have lapsed on dissolution of the League, what would be the effect of
essentiality on such an obligation? We must note in the first place that
essentiality in this sense must mean that the acconntability in question
was intended by the authors of the mandates system to be an essential
element of the Mandate, in the sense that the Mandate was not to exist
without it. The view, or the contemplation, of anybody else could hardly
have been of significance: for instance, the views of interested parties at
later stages of the process, say, in 1945-1946, could not be of any relevance
except in so far as they may have induced those parties to enter into new
agreements, but that is a different question. Basically we are concerned
only with essentiality in the sense that the authors of the mandates
system considered the obligation as prescribed by them-the obligation
to account to the Conncil of the League-as an essential element of the
system in the sense that the Mandate could not, in their opinion, exist
without it.
Now, Mr. President, on that view of the matter, it necessarily follows,
that if that obligation feU away the rest of the institution could not
survive, and the whole of the Mandate would have to be regarded as
lapsed. The logic of that proposition, Mr. President, is probably indispu
table. We find that the same question of Jogic arose in the Barcelona
Traction case, and it was a question which fe!Ito be considered particular
ly by Judge Morelli in his minority opinion because of the view which he
took in regard to the survival or otherwise of the clauses which provided
for adjudication in that case. Judge Morelli, differing from the rest of the
Court in that regard, came to the conclusion that the provisions providing
for adjudication bad to be regarded as having lapsed on the disappearance
of the Permanent Court. The question then arase, what effect could that
have on the rest of the institution? Judge Morelli had to deal with an
argwnent which was advanced to the effect that the adjudication clauses
were to be seen as essential parts of the treaties in question, and they
were, consequently, to be seen as having survived with the rest of the
treaty. He dealt with the matter in his dissenting opinion, and pointed
out that in logic the conclusion was the very opposite. We cite the relevant
portion in the Rejoinder, V, at page 71:
"This result [the learned judge stated-the result that the com
promissory clause had lapsed] cannot in my view be set aside by
arguing, as does the Belgian Government, the inseparability of the
provisions of the 1927 Treaty. ft is difficult tofind any reason why
tht'salleged inseparability should have the ejject of keeping Article
I7 (4) ... i" force, rather than the contrary effect of entailing the
lapse of the entire treaty.
In my opinion there can be no doubt that Article 17 (4) lapsed, for
Jack of abject, as a result of the dissolution of the Permanent
Court ... The fate of the other provisions of the 1927 Treaty is of no
interest.But if it is desired also to consider the question of the
preservation in force of the other provisions of that Treaty, what ARGUMENT OF MR. DE VILLIERS 579
consequence must be drawn, for the solution ofthat problem, from the
assertion that the Treaty constitutes an inseparable whole? If it is
considered, as does the Belgian Government, that 'resort to adjudica
tion is an essential part of the economy of the treaty', that 'the
varions methods of seUlement were carefully combined, so that to
remove those which concern the Court amounts to dismantling the
whole system' and that Article 17 (4) 'was an essential condition for
the consent of the parties to the treaty as a whole' the inevitable
result, assuming the impossibility, thus atfirmed, of separability of the
provisions of the Hispano-Belgian Treaty, would simply be that the
entire treaty hasapsed." (ltalics added.)
The majority of the Court, in the view which it took of the meaning
and effect of the adjudication provisions, did not have to consider this
question, and found it unnecessary to express an opinion in regard
thereto. But, Mr. President, on the basis of the view taken by Judge
Morelli, it was necessary to deal with the question, and ·these are his
views as I have read them to the Court. They confirm entirely our sub
mission in this regard,and involve a rejection of the contrary submission
of the Applicants, as set out in the passage which I read to the Court
from their argument, in which they said that the more logical conclusion
which fl.owed from the Respondent's correct premises in this context
would no doubt have been abandonment of its first alternative contention,
meaning thereby that the Mandate as a whole had lapsed.
Mr. President, the effect of this contention, in contrast with that of the
Applicants, may also be stated as follows. The authors of the mandates
system knew, and contemplated, that without accountability as pre
scribed by them, i.e., accountability to the specifie League organs, _the
Mandate as a whole would fall to the ground. We take that as our prem1se:
that is what the premise of essentiality berc means. This, however,
Mr. President, on the basis of our contention, did not induce the authors
of the mandates system to do anything about it-to do anything in the
way of preventing that result if and when it should come about. The
simple, logical explanation why that is so is that the authors of the
mandates system contemplated that the League would endure indefin
itely,that the League would have an indefinite existence. They did not
contemplate the dissolution of the League, they could not contemplate
the exact circumstances under which such a dissolution might take place.
Therefore, they simply left the matter on that basis, i.e., that if the
League should one dav, under unknown circumstances, come to an end,
then the consequence 'would be----{)nthe assumption, of course, of essen
tiality-that the Mandate as a whole would lapse as a result of the
disappearance of the supervisory organs.
But the authors of the system also knew that later generations would,
in circumstances where the League might come to an end, make appro
priate arrangements. They could make arrangements very much better
than the authors of the mandates system could do so at the time when
they were having their deliberations and were making their arrangement_s,
when it was ex hypothesi quite impossible to foresee the circumstances m
which such further developments might take place, and for which new
arrangements would have to be made.
That is our explanation, and I submit that it is a perfectly logical one,
for the attitude adopted by the authors of the mandates system-i.e.,
assuming, of course, a contemplation of inseverability on their part.sBo SOUTH WEST AFRICA
On this basis too, Mr. President, there could be no suggestion-as was
suggested by the Applicants-that there must be accountability as long
as rights or powers over the territory are asserted, because, Mr. President,
on this premise there would be no mandate. As from the dissolution of the
League the slate would be clean: there would be no assumption that if
anybody exercised powers over the territory, those powers must be
exercised subject to an obligation of accountability, because one would
have to consider de nova the question of any title, or right, or powers of
administration in respect of such terri tory; there would be no mandate.
It is common cause between the Parties that there would be no legal
obligation to submit the territory to trusteeship. Therefore we have an
indefi.nite situation, in which it is not possible for anybody to say that a
legal obligation to submit to international supervision exists.
The whole matter would have to be considered de nova to see who had
any rights, or powers, or title, in respect of the territory under these
circumstances. The answer would have to be found outside the mandates
system and also outside of the trusteeship system; and, therefore, there
could be no inference of international accountability from the mere fact
that any State continued to administer the territory. .
That consequence would also follow, Mr. President, from the Appli
cants' premise, if I may refer back to that for a moment, asto the mean
ing to be assigned to the concept of international accountability, namely
that the obligation of accountability would survive as part of the mandate
institution on dissolution of the League, but that it would, as I have said,
become a dormant one. The only question that would, then, arise, would
be whether, on the basis of that dormant obligation, the Respondent has
taken a further step and has agreed to a substitution of supervisory
organs.
I dealt before with the question whether, on that premise, the mere
fact of the continued administration of the territory can be said to be
proof of such a consent on the Respondent's part, and I pointed out why,
in legal principle, the answer could never be in the affirmative, if one had
regard to ali the relevant facts bearing on the question of consent or
lack of consent.
Mr. President, I may conclude the portion of the argument with which
I was dealing by stating the effect ofit,briefty, as follows.
The Applicants have repeatedly attempted in their Reply, and now
also in their oral presentation to the Court, to avail themselves of the
fact that the Respondent itself contends that the obligation of inter
national accountability, as provided for in Article 6 of the Mandate, was
to be seen as an essential part of the mandate institution. The Applicants'
contention, in effect, amounts to this, that given that premise then the
ultimate conclusion must not be that the Mandate has lapsed but that the
Mandate exists with international accountability to the United Nations.
I have demonstrated, Mr. President, with submission, that that
conclusion canin no way follow. It cannat follow either from the Appli
cants' way of interpreting this obligation of international accountability,
or from the Respondent's way of interpreting that obligation.
On the Applicants' basis of interpreting the obligation, the result is
that the Mandate remained in existence at the dissolution of the League,
with an obligation of international accountability but one that had
become dormant and would remain dormant in the absence of a sub
stitution of supervisory organs. That substitution of supervisory organs, ARGUME:!'<TOF MR. DE VILLIERS
the Applicants themselves admit, could only have taken place on the
basis of a process which included the Respondent's consent. Consentis a
question of fact; it can only be established by the ordinary processes of
establishing any factual proposition. If we take all relevant evidence
into consideration, therefore, itis quite evident that consent was never,
in fact, given.hat is common cause here, and what is clear, is that there
is no legal principle whereby the United Nations could, on the basis of
the Applicants' premise, have been substituted for the League of Nations
as organ by any principle other than consent. Consent is the essential
proposition to be established in this regard and it has not been established.
That is the consequence which follows from the Applicants' way of
looking at this obligation of international accountability.
If we look at iton the basis of Respondent's contention that it was an
obligation referring to specifie supervisory organs· only, the only con
clusion that would follow from a premise of essentiality would be that
upon lapse of the supervisory organs, the whole obligation lapsed and
that consequently, premising essentiality, the whole mandate institution
lapsed.
In neither of these events, i.e., as postulated either by the Applicants'
argument, or in our argument, could the mere fact of administration of
the Territory by the Respondent after those events, therefore, lead to a
conclusion that there has been a substitution of the United Nations for
the League of Nations as a supervisory organ. The fact of administration,
by itself, is neutral in both those events. It implies no question of-it
implies no consent to--a substitution of supervisory organs.
Now, Mr. President, the only question which remains, in regard to our
approach to the matter, i.e., that the obligation of accountability itself
lapsed and that, therefore, the whole mandate institution lapsed, is the
extent to which the compromissory clause could affect this line of argu
ment.
The question arises for tlùs reason. The Court will recall that in the
minority opinions of Judges Read and MeNair in 1950 there was a sugges
tion that judicial supervision under Article J, paragraph 2,of the Man
date could be regarded as fulfilling the same function in the contemplation
of the authors of the mandates system as would be fulfilled by adminis
trative supervision.
The Mandate would, therefore, not lose its contemplated effectiveness
if this obligation of submitting to judicial supervision were to remain,
even in the absence of administrative supervision. The question, Mr.
President, is whether that line of argument could affect the conclusion
for which we contend that, namely on the lapse of Article 6, the whole
mandate institution lapsed.
Our submissions in that regard, Mr. President, are dealt with in the
Counter-Memorial, 11-first at page 172 and then at pages 175-256.
Firstly, in the first passage to which 1 refer, we pointed out, Mr.Presi~
dent, that the majority judgment and opinions in 1962assigned to the Court
a very limited role in the exercise of its function of judicial protection
under Article J,paragraph 2, of the Mandate. Having regard to that
limited rote, the Court could never, in the contemplation of the authors
of the mandates system, have been regarded as a satisfactory substitute
for _theCouncil of the League and the Permanent Mandates Commission.
That line of reasoning we set out in the Counter-Memorial and the
Applicants have in no way attempted to meet it. I merely refer thesBz , SOUTH WEST AFRICA
Court to that for the moment-! do not want to expand upon it at this
stage.
In the alternative we submitted that Article J, paragraph 2, possessed
a more limited scope than that held by the Court, that it did not involve
a concept of judicial supervision at aU. We further contended in any
event, that Article J, paragraph 2, lapsed on dissolution of the League.
These submissions were fuUy set out in the Counter-Memorial, Il, at the
pages I have given-r75-256.
The submissions, of course, Mr. President, related to questions which
were fuUy debated before the Court in 1962, which were considered by
the Court in 1962 for the purposes of the Preliminary Objections, and
which were pronounced upon in the Judgment of the Court and in the
opinions of various judges.
We will, therefore, Mr. President, not re-argue these issues now. We
merely wish to refer the Court to our treatment of them in the Connter
Memorial, and to the answers which we gave in the Rejoinder to points
raised in that regard in the Reply.
The reference to the Rejoinder is V, pages SS-99·For the reasons which
we set out there, Mr. President, we submitted that Article J, paragraph 2,
was intended only for adjudication of disputes regarding matters in
which League Members possessed legal rights or interests, and that no
such rights or interests existed in respect of matters affecting only the
inhabitants of the Territory. We submitted there, further, that the
Article itself lapsed on the dissolution of the League, and that, for these
reasons, Article J, paragraph 2, could play no part in resolving the ques
tion whether, on the lapse of Article 6, the whole mandate institution
lapsed. I want to emphasize, Mr. President, that it is in that context,
and because of its relevance in that particular sense, that these questions
have been raised and have been discussed at aU.
The scope of Article 7, paragraph z-that is its scope as opposed to the
question whether it is still in existence-is also relevant to the question
which arises in regard to·justiciability of Article 2,paragraph 2, of the
Mandate. Consequently, quite apart from the relevance which those
questions had to the issue of the Court's jurisdiction, they are also
relevant, I submit, in relationto the validity of these various contentions
-these varions submissions-which are advanced to the Court by the
Applicants. Therefore, although we raise them only within the confines
ofthe relevance which I have indicated already, I submit, Mr. President,
with the greatest respect and on principle, that that cannot bind any
Member of the Court in so far as the relevance is concerned which that
Member of the Court might wish to assign to these questions, or might
consider these questions to have to the issues of merit before the Court.
This is so, especially, in regard to the question of the scope of Article 7,
paragraph 2-which covers, in our submission, only questions of disputes
regarding matters in which League Members had legal rights or interests
oftheir own, and not matters of the kind which have been brought before
the Court in these proceedings. If a Member of the Court should be of the
opinion that that contention of the Respondent, is a sound one, that
may welllead that Member of the Court to decide that on that basis, I
ought not to give any consideration to any of the other questions raised
in this case, because they must all be regarded as inadmissible for that
reason, and for that reason alone. The mere fact, I submit with respect,
that the Court has, on that question, come to a decision, for purposes of ARGUMENT OF MR. DE VILLIERS'
the Preliminary Objections alone, by a very narrow majority-if 1 may
refer to it, with respect-of eight to seven, surely cannot, in principle,
bind any judge as to the significance which he should attach to that
question in regard to the adm1ssibility of the daims now before the Court,
particularly in view of the fact that the Court is now differently consti
tuted, that it was divided almost on a half-and-half basis on that very
question, and that the question is one that goes to the very root of the
admissibility of ali the daims in the case. I merely raise that as a matter
which, 1 submit, deserves the very serious consideration of the Court.
I am not now going to deal in any detail with that question. The question
of the scope of Article 7, paragraph 2, will be argued as part of our case
with reference to Article 2, paragraph 2,of the Mandate-the reference
to the question of justiciability of that particular obligation. Apart from
that, 1 shaH give no further attention to the details of those questions,
but shaH refer the Court, with respect, to our treatment of them in the
pleadings.
Mr. President, I am now in a position to summarize the various
possible conclusions which may be reached by the Court, on the basis of
the conflicting contentions of the Parties in regard to the Applicants'
submissions under consideration ~ubmhisiirns 1, 2, 7 and 8; in
other words, the questions pertaining to the lapse or existence of the
Mandate, and the lapse or existence of the obligation of accountability.
The first possibility is that the Court may :fmd that Respondent was
subject to an abstract obligation of international accountability, as
contended for by the Applicants, and that provision was made in 1945-
1946 for a substitution of supervisory organs. If the Court decides to that
effect, then, of course, that means acceding to the Applicants' contentions,
and it would mean that the Applicants are entitled to a declaration as
asked for by them in ali four of the submissions I have mentioned.
The second possibility would be a finding that Respondent was subject
to an abstract obligation of international accountability but that no
provision was made in 1945-1946, or thereafter, for a substitution of
supervisory organs. The result would then be a continuation of the
Mandate, with an obligation of international accountability in a dormant
or inoperative form. That would then mean Mr. President, in effect, that
the Court would accede to the Applicants' Submission No. 1, relating to
continued existence of the Mandate. It would accede, in part, to Submis
sion No. 2, in so far as that submission relates to the existence of an
obligation of international accountabilityin this general form and in this
dormant state. For the rest, it would mean a dismissal of Submission
No. 2 and Submissions 7 and 8, in so far as they bear upon a specifie
obligation to report and account, and to send petitions, to the United
Nations or its organs.
The third possibility would be that Respondent's obligation of account
ability was limited to specifie organs, but that there was severability
between that obligation and the rest of the mandate institution, and that
no provision was made for a substitution of supervisory organs. The
effect of that finding, Mr. President, would be a continuation of the
Mandate without any obligation of accountability. That would mean, in
effect, acceding to the Applicants' Submission No. I, but rejecting
Submissions 2, 7 and 8.
A fourth possibility would be the same as the third one, in other
words, that Respondent's obligation of accountability was limited to SOUTH WEST AFRICA
specifie organs and that no provision was made for substitution, but that
there was no severability between the obligation of accountability and
the rest of the mandate institution. The result would then, be, that the
Mandate would have lapsed. There is, however, further possibility which
1 want to putto the Court as one under this heading (i.e., the fourth one),
which would lead to the same conclusion as the third, and that is, that
although the Mandate would normally have lapsed as a result of that
situation, a new arrangement was made at the time of the dissolution of
the League whereby the mandatories kept alive certain parts of the
previous mandate institution, in other words, those parts other than
international accountability. That would lead, as 1 have said, to the
same conclusion as in the case of the previous one-it would have the
same effect. It would mean acceding to the first of the Applicants' sub
missions and dismissing the others.
The fifth possibility would be the same as the previous one, save that
no legally binding engagements were entered into to divide even part
of the mandates as a matter of law, with the result that there would have
been a totallapse of the mandate institution, and that would mean a
dismissal of al! the Applicants' submissions under consideration, I, 2,7
and 8.
The sixth possibility is that, by reason of considerations arising from
the limited scope of Article 7 (2) of the Mandate, or of the lapse of that
Article, the conclusion is arrived at that ail the daims are inadmissible
and the result would again be rejection of ali the submissions under
consideration and, indeed, of ali the Applicants' other submissions.
Our contention is, Mr. President, that there bas been a totallapse of the
mandate institution, without any revival of any part thereof by way of
binding legal engagements and that, consequently, ail these submissions
are to be dismissed, and we contend for that on the basis 1 have already
indicated and also on the alternative basis relating to the admissibility
of the daims for reasons arising from the scope and possible lapse of
Article 7 (2) of the Mandate. Alternatively, we contend that if the
Mandate exists at ali, it exists without any obligation of international
accountability, and we, accordingly, ask on the basis of that alternative
submission, that only the Applicants' Submission No. 1 be allowed, and
that the others-Nos. 2,7, and 8-be dismissed. \Ve shalllater formulate
our submissions formally for the Court, but at this stage I am merely
indicating the alternative effects of the arguments I have adduced to the
Court.
This brings me to the conclusion of this argument, Mr. President, in
regard to the Applicants' Submissions I, 2,7 and 8, and I proceed to deal
with the next phase of the matter, namely the legal questions pertaining
to the Applicants' case on Article 2 (2) of the Mandate-in other words,
legal questions pertaining to the Applicants' Submissions 3 and 4· Mr.
President, the major difference underlying the respective attitudes of
the Parties in regard to these legal questions may indeed be found in very
dementary first principles, which are so basic that lt is w.ith extreme
diffidence that 1 address any argument on this topic to the Court at ali,
but, Mr. President, there is in this regard, in our very respectful sub
mission, a complete confusion of thought inherent in the manner in which
certain contentions of the Applicants are addressed to the Court. We
drew attention to this fact in the pleadings, but we still find arguments
involving that same confusion of thought being addressed to the Court in ARGUMENT OF MR. DE VILLIERS
the course of the Oral Proceedings. It is, therefore, necessary for us to go
back, very briefly and with as little elaboration as possible, to fust
principles and to indicate where this basic divergence arises between the
Applicants' approach and ours to these questions pertaining to Article
2 (2).
'rhe main difference seems to be one bath of concept and of terminology,
as regards varions processes which are involved in coming to a conclusion
whether a breach of an obligation has been established, or not. Mr.
President, the conclusion on the question of a breach, or otherwise, of an
obligation, would in principle require three elements which would have
to be considered before the conclusion could be arrived at, and I state
them in a certain arder. Of course, the arder of consideration in each
particuJar case necd not necessarily be the same. The first element is à
determination of what the law is; in other words, what is the content of
the obligation? Secondly, a determination is necessary of what the rele
vant facts are; in other words, a determination of the facts or the trans
actions to which the law is to be applied. Tlùrdly, an application of the
law to the facts is required; in other words, a conclusion asto whether the
facts, as determined by the Court, constitute a compliance with, or
violation of, the legal obligation, as determined by the Court. Those are
the three steps in the reasoning and it may be that m the case of a particu
lar problem arising in a particular case, one or more of these steps may
be so obvious, or the answer to a particular step may be such an obvions
one, that it requires very little attention. It may be that in sorne cases
there is no dispute at ail about the facts, or about the significance to be
attached to the facts--the dispute may centre entirely on the question of
the obligation, asto its existence or its meaning, or its content. In other
cases, the obligation may appear very clearly from a document which is
so plain as virtually to require no interpretation at ail to ascertain its
meaning, so that there can, on the face of it, be no dispute at ail asto
what the obligation means and what its content involves. The problems
may, in such cases, arise from the facts, from a proper evaluation of the
facts to which the obligation, as so determined, is to be applied. But,
i\lr. President, in principle, no conclusion can be reached without going
through all three of these processes.
The first step,the determination of what the content of the obligation
is, may involve a number of different techniques, depending upon the
suggested origin or the source of the obligation, or alleged obligation. lt
may be, :Mr.President, that the suggestion is that the obligation is to be
found in general principles of law, and in that event, if there is any
dispute aboutit, it may be necessary to conduct sorne research into the
sources of the law in order to see what those general principles are. It
may be that the allegation is that the obligation is to be found in an
alleged oral agreement, or an alleged agreement entered into by conduct,
in which event a factual enquiry may be necessary in the case of dispute
-an enquiry whether there was in fact, such an oral agreement, or asto
what it involved, or, in the case of an alleged agreement by conduct, an
investigation into ail the relevant aspects of the matter in order to see
whether an implication of an agreement by conduct, of a tacit agreement
in the circumstances, is justified as a necessary inference.
The allegation may be that the obligation is to be found in a document,
in which case it is necessary to go through the ordinary processes of
interpretation of that document, whether it be a will, a contract, asS6 SOUTH WEST AFRICA
statute, or a treaty. That is the relevant technique to be applied in that
particular instance.
In the case of the second step, Mr. President, that is, to ascertain the
relevant facts, different methods, techniques, or approaches may be
applied, in ordcr to solve disputes or differences between the parties in
that regard. The facts may be admitted, or they may be disputed, but if
they are disputed various systems of law and of practice employ various
methods of dealing with such a situation, and sometimes those methods
involve oral evidence, they sometirnes involve cross-examination and
sometimes do not; they may involve an exchange of affidavits; very often
to a varying extent, they involve the application of judicial knowledge,
inspections in loco,the taking of evidence on commission for the benefit of
the tribunal which is ultimately to decide the question, inferences from
circumstantial evidence, and so forth. Ali those are various techniques
which may have to be employed in this second phase ofan enquiry, namely
to ascertain what exactly the facts are and how they are to be evaluated.
The final step,Mr. President, in ascertaining whether there has been a
breach of the obligation, lies in the determination whether the facts, as
ascertained by the Court, show compliance with the obligation, or a
violation thereof. Normally, of cotrrse, this should eventually present no
diffi.culty;after the ascertainment of the law and the relevant facts to
which the law is to be applied, the prob1ems ought tohave been sorted out,
and it should, therefore, be clear what bearing the law has on the facts.
But, nevertheless, this is a distinct step in logic and a process distinct
from the two former, and it seems, Mr. President, that this is where our
roads diverge--our roads meaning the roads of the Parties to this case.
This is the point at which it seems that the Applicants' contentions
obtain the major confusion of thought, to which I have referred and
which I shaH endeavour to demonstrate to the Court.
Mr. President, if ali this is applied to the alleged violation of Articl2
(2)of the ·Mandate, the only question that arises at this stage of the
proceedings is a legal one, namely what is the extent of the Respondent's
obligations. lt will only be in the next stage of the proceedings that the
Parties will proceed to the second stage, that is, a determination of what
the relevant facts are. The argument at this stage is, specifically and by
design, limited to the first part only; of course one refers to the second
part to be dealt with later, in arder to demonstrate what the important
issues of law are that arise and what the significance is of what the legal
points we are arguing, because of the bearing they may have on the
factual disputes that are coming before the Court in the next phase. At
this stage, the Court is concerned with a determination ofwhat the law is,
and we are concerned with contentions only in that regard.
And the next stage, Mr. President, namely of ascertaining the relevant
facts, will, as1 have said, entail a much wider inquiry than we indulge
in at the present stage. It will require an evaluation of admissions made
on the pleadings; it will require evaluation of oral evidence, of the tacts
disclosed by an inspection, if an inspection should be held; it will involve
the application of judicial knowledge to the extent that may be permis
sible; it will involve the drawing of inferences of fact from the direct
or the primary sources; and it will only be in the final stage of its reason
ing that the Court will decide whether the facts as determined by it faU
within or without the ambit of Respondent's obligations, as also deter
mined by the Court. ARGUMENT OF MR. DE VILLIERS 587
So, Mr. President, 1 revert to the fact that we are at present concerned
only with the fust step leading to that ultimate conclusion, namely the
ascertainment of the nature and extent of the obligation; and inas
much as that obligation is admittedly embodied in a document or doc
uments in the mandate instrument read in the light of the Covenant of
the League, its nature and extent fall to be determined by a process of
interpretation of those documents. The rules of interpretation in inter
national law, as the Court would know, have been evolved with reference
to treaty interpretation, but the same principles, as we have pointed out
before, would apply whether one sees the mandate instruments as treaties,
or as the result of treaties entered into. On both bases there would be a
necessary background of consent to the relevant instruments, and the
principles of interpretation would be the same. We indicated that in our
Counter-Memorial, Il, pages IOJ-108, and dealt specifically with that parti
cular point.
Mr. President, ali this may sound very elementary, but it is necessary
to emphasize it because of the divergence in the arguments. The basic
principles of interpretation which are to be applied, and which appear
to be persistently overlooked or ignored, or misunderstood, or misapplied,
judging by the manner in which the Applicants' contentions are put be
fore the Court, are: firstly, that a treaty obligation derives its legal force
from the consent of the party bound thereby. The proposition is ele
mentary. We gave references to sorne authorities, so far as they may be
necessary, in the Oral Proceedings on the Preliminary Objections, VII,
pages 37-40.
The second basic principle is, Mr. President, that interpretation is the
process of determining what it was that the Parties consented to or, in
other words, the meaning or the content of their contract. One may also
add the measure or extent of the obligation agreed to, or, if one sees it
from the opposite angle, the limits attached to the obligation. That is
what the process of interpretation is aimed at-determining what it was
in that sense that the Parties consented to.
Now, 1\ir. President,-and this brings us nearer to our dispute-a neces
sary corollary of these fundamental concepts is that the treaty must
always be interpreted to bear the meaning, or to possess the content,
which it had as at the stage of its conclusion. It follows as a corollary of
the basic concepts, namely that it is by the consent of the Parties that the
obligation is brought into force and that it is by way of interpretation of
that consent that one ascertains what the meaning, the content, and the
scope of the obligation are. Obviously, the consent is determined as at
a particular stage; for the consent was arrived at, at a particular stage
it is manifested as at a particular stage-and the factual inquiry is con
ccrned with what this state of mind of the party or parties concerned was
at that particular time. That is the only way in which one can ascertain
what the obligation and its scope were. We refer in the Rejoinder, V, at
pages 121-123, to this principle, referred to as the principle of contempo
raneity. The principle has been defined by the honourable Member of this
Court, Sir Gerald Fitzmaurice, as follows. (We quote a passage which is
given in the Rejoinder, V, at p. 121.)
"The terms of a treaty must be interpreted according to the mean
ing which they possessed, or which would have been attributed to
them, and in the light of current linguistic usage, at the time when
the treaty was originally concluded."588 SOUTH WEST AFRICA
I read from a further quotation, where the sarne learned author pointed
out that a failure to apply this principle "would often arnount to import
ing into them (i.e., treaties) provisions they never really contained, and
imposing on the parties obligations they never actually assurned". \Ve
find that quoted at the same page of the Rejoinder.
Mr. President, in addition to the authorities which we have referred to
and which are on record, I may also refer to this passage in Schwarzen
berger, International Law, third edition, 1957, page 490 (Vol. I):
"... the decisive moment, in relation to which the interpretative
function has to be exerciscd, is the time of the conclusion of the
treaty. For purposes of interpretation, the attitudes subsequently
adopted by parties to a treaty are relevant only in so far as they
may throw light on the position at the time the treaty was con
cluded.''
1 skip and read further:
"... the effect of judicial treaty interpretationis retroactive. When
an. international court or tribunal has given its interpretation of a
treaty, 'the terms of the convention must be held to have always
borne the meaning placed upon them by this interpretation'.''
These last words, Mr. President, were a quotation by the author from
an Opinion of the Permanent Court regarding the Access to the German
Minority Schools in Upper Silesia (1931), Series A/B 40, at page rg.
The learned author, Schwarzenberger, then continues, Mr. President,
stillat page 490, to give as a reason for this rule, arnongst others, the
following: "As judicial interpretation relates to the date of the conclusion
of the treaty, the court or tribunal has merely clarified a situation which,
hypothetically, could have been established at that date.'' In other words,
Mr. President, the position which arises is this: that the answer to be
given by a court, whenever the question of interpretation arises, however
long that may be after the treaty has been entered into, must be the same
answer as would have been given if the question had arisen immediately
after the conclusion of the treaty. That is essential to this concept of in
terpretation of a treaty. Different considerations might apply when we
come to later stages of an inquiry, namely questions of application; then
different considerations might arise according to the tirne or times at
which one looks, but when it cornes to the interpretation of assigning a
meaning and a content to an obligation, the o~ly point of time which is
relevant, is that at which the treaty was entered into-when the consent
was given. In our Rejoinder we showed that the principle of contem
poraneity forms part of a wider doctrine which is called the principle of
inter-temporal law, and that the doctrine is one which is regularly applied
by the Court.
Now, Mr. President, the Applicants' difficulty with these incontestable
propositions is caused, it seems tous, by the formulation of propositions
which do not accept or do not acknowledge that the process of interpre
tation provides only one of the premises-the content of the obligation
from which the Court draws its conclusion. The second premise is found
in the facts as determined by the Court, and then follows the conclusion,
bringing into conjunction the two premises-the process, then, of ap
plying the law to the facts; and this, it appears with respect, is what the
Applicants' contentions either overlook, or prefer to ignore. \Ve find in
the verbatim record at page 260,supra, a statement in which the Appli- ARGUMENT OF MR. DE VILLIERS
cants refer to a contention by the Respondent. They render their conten
tion as follows:
"... that the Mandate must be interpreted in accordance with Re
spondent's intentions of 1920, and that a contemporary norm is,
in the absence of new agreement by Respondent, not capable of
what it caUs 'subsequent insertion' into the terms of Article 2, para
graph 2".
The Applicants proceed to say that this contention "Respondent seeks
to support ... by reference to the principle of contemporaneity and by
a somewhat obscure distinction between the interpretation and the ap
plication of documents".
Mr. President, it does seem to us rather surprising that any lawyer,
and particularly a lawyer appearing before this eminent Court, should
find a distinction between interpretation and application of documents
somewhat obscure. It seems tous, with respect, Mr. President, that that
distinction lies at the basis of the whole legal process in cases where rights
and obligations are embodied in documents, and if lawyers who appear
before a court to advance contesting propositions regarding the result
ofthe interpretative process and the application of theprocess to the facts,
if lawyers who appear in opposing roles in cases of this kind cannet be
agreed about thescfundamentals-as towhat thewholeenquiryis ailabout,
then it would seem, with respect, that they do not assist the court-that
their efforts rather tend in the opposite direction.
The distinction, Mr. President, is one which is reflected in the very
compromissory clause in the instrument which is now before the Court,
the compromissory clause which speaks of disputes relating to the inter
pretation or the application of the provisions of the Mandate. This point
was emphasized by Quincy Wright at page 158 of his work, Mandates
UndertheLeague of Nations, with reference to the Mavromatis case. He
says therc: "... it would appear that a manda tory can be brought before
the Court ... on questions involvîng not only the interpretation but the
application of a mandate provision" (italics added). The leamed author
has no difficu1ty in appreciating the significance of the distinction as
applied to the Mavromatis case.
~Ir P.resident, in this confusion betwcen the elementary concepts of
interpretation and application of written documents, lies, in our submis
sion, the key to the confusion apparent in the Applicants' argument re
garding Article 2 (2) of the ;\landate. We see it particularly in a contention
advanced in the Reply, IV, at page 515, and which was repeated in the
present Oral Proceedings on r8 March. The contention was that there
exists a-
"judicially perceived necessity to interpret broadly-formulated, con
stitutional-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". (P. uS, supra.)
I refer, Mr. President, to the concept of a "necessity to interpret broadly
formulated, constitutional-type obligations, on the basis of current stan
dards", which is then contrasted with an interpretation "on the basis of
the presumed 'intentions of the parties' at the time the obligations were
conferred and accepted".
;\fr. President,our submission is that the basic principle is clear:
whether a document is of a broadly formulated constitutional type, or590 SOUTH WEST AFRICA
whether it is of a narrowly formulated, unconstitutional type, its inter
pretation must surely always be based on the intentions of the parties at
the time when the obligations were conferred and accepted, intentions
which are to be ascertained by the court in good faith, as best it can,
by the means at its disposai. It is significant, Mr. President, that this very
point was stressed in the Privy Council in 1932 by Lord Hankey, in a case
which arase from problems in the Canadian Constitution-the British
North America Act of r867. The case was Re Regulation and Control of
Aeronautics in Canada, 1932, AC/54, and I read from page 70:
"The process of interpretation as the years go on ought not to be
allowed to dim or to whittle down the provisions of the original
contract upon which the federation was founded, nor is it legitimate
that any judicial construction of the provisions, [for instance] of
Sections 91 and 92 should impose a new and different contract upon
the federating bodies."
The statement is very significant, Mr. President, in the .first place, be
cause it applies exactly to a document of the nature described by the
Applicants in their phrase "broadly-formulated, constitutional-type" of
document. It is significant further because, as Members of the Court
might know, Articles gr and 92 of the Canadian Constitution provided
particular problems of interpretation to courts concemed with questions
which arase in regard to them. Those are the two sections of the Con
stitution setting out the powers of the federal Parliament, on the one
band, and of the Sta te or Provincial Parliament ofCanada on the other; and
instead of adopting the system of assigning to, say, the federal Parlia
ment powers (a), (b), (c) and (d) and tothe provincialparliaments powers
on ali matters not assigned to the federal Parliament, or vice versa, the
sections embodied a system whereby the powers to be exercised by the
one and the powers to be exercised by the other were in part described
positively; and the problems which arase, originated from the fact that
there was sorne overlapping in this description of powers-the descrip
tion of sorne powers assigned to the provincial parliaments were, on anal
ysis, found to overlap on the description of sorne powers assigned to
the federal Parliament-and this was a very difficult problem for the
courts to solve in particular cases-ta decide whether particular legisla
tion under those circumstances could fairly be said to fall under the one
or the other, where there was in the legislation also an encroachment upon
this overlapping field. The courts, as Members of this Court might know,
evolved in that regard the so-caUed test of the pith and substance of the
particular legislative measure to decide whether the pith and substance,
as opposed to incidental provisions, feil within the relevant article or
not. It was a difficult test to apply to various cases that arose, the situa
tions in sorne cases tending to become even artificial, and it was under
those circumstances that this waming was issued by Lord Hankey,
namely that for ali the need of having judicial construction of the pro
visions of sections 91 and 92 of that Constitution, the fact should not be
lost sight of that the task of the court was to apply the original contract
upon which the Federation was founded, and that it was not legitimate
by any such process of judicial construction to impose a new and a dif
ferent contract upon the federating bodies.
So, Mr. President, the distinction between documents of the type re- ARGUME~T OF MR. DE VILLIERS
ferred toby Applicants and more narrowly formulated docwnents direc
ted at more limited purposes does not lie in the methods used in inter
pretation. The difference between the types of docwnents referred to by
the Applicants in their argument, is found in the results of the inter
pretation, or in the meaning which the docwnent is found to have and
always to have had in the contemplation of its authors. It is not a diffe
rence in type-it is a difference in the meaning of certain provisions
which are customarily found in such documents. The difference is this:
th at the broadly phrased, constitutional type ofdocuments, if I may use the
Applicants' phrase, are frequently so worded, and intentionally so worded,
asto be capable of application to a broad class of topics, the exact future
manifestation and details of which may have been foreseen, or may have
been unforeseen, or may have been unforeseeable. That is very often the
exact intent and the purpose of the broadly formulated, constitutional
type of documents-to have a formulation which can apply according to
the intent of its authors to later situations as they may evolve, whether
they are foreseen or not at the time of the execution of the documents.
It was this type of formulation which Judge van Wyk had in mindin
the passage to which the Applicants referred in the verbatim record at
page 185, supra, and with which we dealt in the verbatim record at pages
329-331, supra. This same approach, with respect, Mr. President, appears
to have been inherent in the statement by the honourable President in
hisseparate opinion in the case of the Expenses of the United Nations,
which we quote in our Rejoinder, V, at page 134. The quoted passage is
significant, and I wish to read it to the Court. It starts as follows:
"A general rule is that words used in a treaty should be read
as having the meaning they bore therein when it came into exis
tence. But this meaning must be consistent with the purposes sought
to be achieved. Where, as in the case of the Charter, the purposes
are directed to saving succeeding generations in an indefinite future
from the scourge of war, to advancing the welfare and dignity of
man, and establishing and maintaining peace under international
justice for ail time,he general rule above stated does not mean that
the words in the Charter can only comprehend such situations and
contingencies and manifestations of subject-matter as were within
the minds of the framers of the Charter ... No comparable human
instrument in 1945 or today could provide against ali the contin
gencies that the future should hold. AU that the framers of the
Charter reasonably could do was to set forth the purposes the organi
zation set up should seek to achieve, establish the organs to accom
plish these purposes and confer upon these organs powers in general
terms. Yet these general terms, unfettered by man's incapacity to
foretcUthe future, may be sufficient to meet the thrusts of a changing
world.
The nature of the authority granted by the Charter to eachof üs organs
does not change with time. The ambit or scope of the authority con
ferred may nonetheless comprehend ever changing circumstances and
conditions and embrace, as history unfolds itself, new problems and
situations which were not and could not have been envisaged when the
Charter came into being." (Italics added.)
May 1 break there for a moment, Mr. President? I emphasize that the
nature of the authority granted by the Charter does not change with592 SOUTH WEST AFRICA
time, but the ambit and scope of the authority may be such that it may
nonetheless comprehend ever changing circumstances and conditions.
I proceed with the quotation:
"The Charter must accordingly be interpreted, whilst in no way
deforming or dislocating its language, so that the authority
conferred upon the Organization and its various organs may attach
itself to new and unanticipated situations and events ... The question
whether ailu1~fore oseextr,ordinary, or ab1wrmal devdopment or
situation, or matter relating thereto, falls within the authority accorded
to any of the organs of the Organization finds its answer in discharging
the essential task of atl interpretation--ascertaining the meaning of the
relevant Charter provisionn its context. The meaning of the text will
be illuminated by the stated purposes to achieve which the terms of
the Charter were drafted." (ltalics added.)
Mr. President, with the greatest respect, this quotation sets forth with
such clarity the principles to be applied and the distinctions to be drawn
in this regard that it is hardi y necessary to refer to them any further. The
capacity of the instrument to "comprehend ever changing circumstances
and conditions and embrace, as history unfolds itself, new problems ...
which were not and could not have been envisaged" by its authors
that, i\lr. President, does not arise by reason of changing interpretations
of the instrument-that is made abundantly clear. It arises by fresh
applications of the terms of the instrument to new situations. 1t arises
from the very fact, .Mr.President, that the provisions of the instrument
are phrased in an appropriately broad manner, always bearing the same
meaning but capable of applying and intended by its authors to apply
to new situations and problems that might arise, whether they were
foreseen or unforeseenby the authors at the time of executing the instru
ment.
Beth in the Rejoinder, Mr. President, and in these Oral Proceedings
we illustrated this point, namely the distinction between interpretation
and application, by postulating a treaty which refers to "British pos
sessions". The meaning and interpretation of the phrase would in those
cases not change, whereas its application, in practice, at varions points
of time, would produce widely different results.
That brings us, Mr. President, then, to the essence of the Applicants'
argument in this regard: the reliance which they place upon the decision
of the United States Supreme Court in the case of Brown v. The Board of
Education. ln our submission the fallacy of the Applicants' argument is
perhaps best demonstrated with reference to the very reasoning of the
Court in that case. This was the only authority which the Applicants
quoted for this purpose in the Reply. The Applicants quoted a number of
authorities,but this one was the only one which seemed to be even super
ficially relevanto the contention of the Applicants, and it is indeed the
only authority at ail which the Applicants have quoted in these Oral
Proceedings in support of their contention of interpreting documents on
the basis of present standards. They promoted the reference to this case
to the very first day of the proceedings, as we find in the verbatim record
at page rr8, supra.
1 may first just point out that it was also contcnded on that day (the
record at p. rrg), that Respondent's commentary on the Brown case
does not advert to this aspect of its purported application. Mr. President, ARGUMENT OF MR. DE VILLIERS 593
if the Rejoinder had been carefully read, it would have surely revealed
to the Applicants that we did indeed advert to this aspect and we did
demonstrate in the Rejoinder that this case does not bear out the Appli
cants' contention. I refer the Court to the Rejoinder, V, at page 136, and
1 shall restate briefiy the basis of the case and its backgrotmd as we see
it and as we dealt with it in the Rejoinder.
It starts on this basis, Mr. President. The law to be'determined in that
particular case and to be applied to the facts, was to be found in the 14th
Arnendment to the United States Constitution, which was introduced
in r868. That amendment, as the Court would know, was aimed at secur
ing for all personsthe "equal protection of the laws"-that was the domi
nant phrase. It was aimed at preventing persons being deprived of the
equal protection of the laws.
In 1896 the American Supreme Court held in the case of Plessy v. Fer
gusson that it was not in conflict with the 14th Arnendment for a state
to maintain separate, but equal, educational facilities for different races.
This was a case, therefore, involving application of a particular law to
the facts and of arriving at the conclusion in that regard.
In 1954 in the Brown case the Supreme Court came to a different and
opposite conclusion. Its reasoning in that regard, so far as this present
issue is concerned, appears from certain passages, which are quoted by
the Applicants in the Reply, IV, at pages487 and sr4. The ftrst one reads
as follows:
"In approaching this problem, we cannot turn the clock back to
1868 when the Amendment was adopted, or even to 1896when Plessy
v. Fergusson was written. We must consider public education in the
light of its full development and its present place in American life
throughout the Nation. Only in this way can it be determined if
segregation in public schools deprivcs these plaintiffs of the equal
protection of the laws."· (IV, p. 514-)
The Court further, Mr. President, made a ftnding of fact that sepa
ration of negro children "genera tes a feeling of inferiority asto their status
in the community that may affect their hearts and minds in a way un
likely ever to be undone". {Ibid, p. 487.)
The Court said, in t}lat regard, the following:
"... whatever may have been the extent of psychological knowledge
at the time of Plessy v. Fergusson, this ftnding is amply supported
by modern authority". (Ibid.)
Now, Mr. President, can it, on the basis of this very plain explanation
of the reasoning of the Court, be said that the Court in any way altered
the interpretation of the qth Amendment of the Constitution-that in
1954 it gave a different interpretation to the amendment-assigned toit
a different meaning and a content from that which had been assigned to
it in r8g6? Clearly, 1\lr. President, the answer is in the negative. There
is nothing in the passages quoted that even remotely suggests that
nothing which indicates that the Court's view as to the meaning of the
provision had changed. What is it then that had changed, as appears
from these passages, :Mr. President? \Vh.at had changed was public ed
ucation and "its ... place in Arnerican life throughout the nation". What
had also changed in that regard was the extent of psychological know
ledge. These changes related to-594 SOUTH WEST AFRICA
the subject-matter to which the constitutional prov1s10n in
question was to be applied, and not the content or interpretation
of the constitutional provision itself ... ". (V, p. 137.)
To put the matter concretely, Mr. President, in 1954 the facts concern
ing public education, as found by the Court in that year, were different
from those in 1896.
As regards the individuals affected, the Court had the benefit of expert
evidence regarding psychological knowledge, which was not available in
1896.
Consequently, Mr. President, application of the same principle-the
same constitutional provision being given the same meaning as before
to fundamentally different facts, led to a different conclusion from that
of 18g6. What had changed, therefore, was the facts as appraised by the
Court. The Court appraised the facts as they were found in 1954 to be
different from the facts as they had been appraised and found in 1896
and it was because of that difference in the factual situation that the
ultimate result was a different one from that arrived at before.
We submit, therefore, Mr. President, that the content of the Respon
dent's obligation under Article 2, paragraph 2,of the Mandate and the
basis upon which it can be adjudicated falls to be determined by these
same ordinary rules of interpretation.
[Public hearing of I4 April I965]
Mr. President, I commenced yesterday with our argument on the
question of the legal issues pertaining to Article 2, paragraph 2, of the
Mandate, and dealt particularly with the Applicants' Submissions num
bers three and four, based on an alleged violation of that Article. For the
reasons which 1 gave in the introductory survey of fundamental prin
ciples to be applied in this regard, we submit, Mr. President, that ordinary
principles are to be applied in interpreting that Article. We submit that
the purpose of such interpretation is to ascertain the meaning, the
content and the scope of the obligation, as was intended by its authors
in 1920. We submit that only then can the next stages in the enquiry be
undertaken, namely determination of the relevant facts and the appli
cation of the obligation, as interpreted in the light of the facts deter
mined. We submit that it is only in these later stages of the enquiry
that a question may arise asto the application of modern concepts and
standards. It is only then that those concepts may become relevant in a
manner which we shall indicate later.
As far as this firsttep of the enquiry is concerncd, i.e., interpretation,
there is, in our submission, clearly no substance at ail in the Applicants'
contention that there is now to be assigned to the obligation a different
meaning, a different scope and a different content from that which was
intended in 1920, or from that which would have been assigned to it
had this question come before a court in 1920.
On the basis of true interpretation of the Article, Mr. President, we
contend for a two-fold result, as far as is relevant to present purposes.
We state it in the alternative, namely that the authors of the Mandate
did not intend the Court to exercise jurisdiction at ali in respect of alleged
breaches of Article 2, paragraph 2, of the Mandate. Alternatively, we
contend that the basis of adjudication was intended to be a limited one
only, limited, that is, to principles analagous to those on which municipal ARGUMENT OF MR. DE VILLIERS 595
cowi:s exercise a power of review, as distinct from a power of appeal, in
the case of actions of other tribunals, bodies or persons upon whom dis
cretionary powers have been conferred.
We shall deal with these two contentions in turn and, with your leave
Mr. President, my learned friend, Mr. Grosskopf, will present our argu
ment of the first of these two contentions.596
7· ARGUMENT OF .:YIR.GROSSKOPF
COU:-l'SEL FOR THE GOVERNME~T OF SOUTH AFRICA AT THE PUBLIC
HEARING OF 14 APRIL 1965
.:Yir.President and honourable Members of the Court, as mv learned
senior indicated, the matter with which 1 shall deal is the fust 'question,
i.e., whether the Court was intended to have jurisdiction at all to adju
dicate on alleged violations of Article 2 of the Mandate. This question
tums on an ascertainment of the intentions of the authors of the Mandate,
read in the light of ali the surrounding circurnstances. For the reasons
setout in the Counter-Memorial, Il, page 384, and passages there quoted,
and the Rejoinder, V, pages 143-157, Respondent submitted that no such
intention existed. These reasons, Mr. President, may be briefly summa
rized as follows.
Firstly, the provisions of Article 2 are wide and general, and the de
termination asto whether they have been complied with would involve
an enquiry into matters of a political and technical nature. Although
we concede, Mr. President, that legal questions are often intertwined with
political and technical issues, it would be a most unusual function, in
our submission, for the Court to entertain matters of the purely political
nature which would arise from the adjudication of alleged violations of
Article 2-that is, matters concerning the best methods of administering
a territory which, in its nature, is a function of a political nature, rather
than a strictly legal one. Consequently, in our submission, Mr. President,
ifthe authors of the Mandate intended the Court to perform such a func
tion, one would have expected them to use explicit language in order to
achieve such a result.
However, not only was there no explicit language, but one finds not a
single reference in the discussions preceding the establishment of the
League and the Mandate-not a single reference at all, Mr. President
ta indicate that such a function was contemplated for the Court.
On the other hand, one does find that express provision was made
for the creation of supervisory organs, to wit, the Permanent i\'landates
Commission and the Council of the League, which combined both politi
cal and technical qualifications and were, therefore, in our submission,
much more appropriate organs for this purpose.
We find, also in our submission, Mr. President, that the nature and
composition of these administrative organs were matters of concern to
the authors of the mandates system, and these questions were settled
only after considerable debate.
Consequently, by reason of the above circurnstances, it is, in our sub
mission, most unlikely that the authors of the mandates system would
have intended the Court also to perform a function of ensuring compliance
by the Mandatory with its obligations under Article 2 of the Mandate.
That, Mr. President, in brief, was the argument we presented in our
pleadings.
Now, in the Rejoinder, V, pages rg-22, and pages 143-146, wc pointed
out that Applicants failed, in the Reply, to answer this argument at aiL
At no stage in their Reply did they advert to this simple issue, namely
what did the authors of the Mandate intend in this regard? Indeed, as we
have shown, they went into long discussions to establish propositions
which were not contested by us, such as that Article 2 created rights ARGUMENT OF :\Œ. GROSSKOPF
597
and obligations of a legal nature, and, also, that courts are sometimes
required to pass judgment on issues involving technical aspects, and so
forth. Now, we never contested that, Mr. President, and the real point
we made was, in our submission, never met.
In these Oral Proceedings the Applicants commenced by denying that
they had in the Reply either misinterpreted or misrepresented Respon
dent's submission and, after quoting from the Rejoinder and the Counter
Memorial, they stated, in the verbatim record at page 234, supra, that:
"... careful reappraisal by the Applicants of the foregoing quoted
passages does not, it must be confessed regretfully, yet bring home
to the Applicants the 'true nature' of Respondent's contention".
However, Mr. President, during the course of the adjournment the
Applicants appear to have been enlightened in this respect because,
on the very next morning,· right at the outset, Applicants' Agent was
able to say, with conviction and reasonable accuracy-and 1 quote from
the verbatim record, page 237, supra:
"Respondent's first alternative contention :.. is that, given the
generality of formulation and the 'political or technical nature of
the obligations envisaged', ... it could not have been the intent of
the authors of the Mandate to confer upon the Court the power of
judicial review of disputes involving the interpretation or applica
tion of the article in question."
This is consequently the first time that Applicants have, in our submis
sion,apparently seen fit to reply to the argument actually propounded
by RespondenL In what follows 1 shall attempt to deal with the various
contentions and ar~ents in turn.
Firstly, Mr. Prestdent, the Applicants said that if the Court did not
possess jurisdiction to entertain disputes concerning the application or
interpretation of Article2, paragraph 2,it would amount to (and I quote
from the verbatim record, at p. 236, supra) "stripping the obligation of
aU qualities which give it a legal character", and that "disputes concem
ing asserted breaches of that Article ... [would be] 'legal rights', which are
not enforceable, for which there is no remedv".
The fallacy in this line of reasoning, .i\Ir. President, with respect, has
been repeatedly exposed in our pleadings, and also in these Oral Pro
ceedings: it lies in equating lack of justiciability with lack of remedy,d
even with lack of legal effects. In international law, in our submission,
Mr. President, there is nothing anomalous in the existence of legal rights
which cannat be enforced by any court of law. Indeed, this position is the
normal one, provision for compulsory adjudication being the exception.
In cases where no provision is made for compulsory adjudication, it
does not follow that there is no remedy in international law. The treaty
itself, which creates the obligation, may provide a remedy or a means of
enforcement other than submission to adjudication. In the present case,
it is submitted that the authors of the Mandate intended the enforcement
of Article 2, paragraph 2, to be in the hands of the Council and the
Permanent Mandates Commission, as an alternative, or rather as a spe
cial type of enforcement machinery.
The creation of this form of supervision is, in our submission, a very
strong argument in support of Respondent's contention that the authors
of the Mandate would not have intended the Court also to see to proper598 SOUTH WEST AFRICA
performance of the obligations under the Article, which, in our respect
fu! submission, is a task for which the Court is not really equipped.
Of course, Mr. President, purely as a matter of international law, an
obligation would not be divested of its legal effect even if no remedy at
all was specifically provided in the treaty. In such a case, an aggrieved
party would be lîmited to his ordinary remedies in international law,
but, since that is not the position here, where, in our submission, methods
of enforcements were provided, although not of a judicial nature, that
situation does not cali for further consideration.
Now, Mr. President, in the course of our discussion of this topic in the
Rejoinder we had occasion to refer to certain comments by Sir Hersch
Lauterpacht on the possibilities and problerns involved in international
protection of certain basic human rights, and, in particular, on the role
which could be played in that regard by an international court. That was
in the Rejoinder, V, pages 154 to 157.
Applicants attempt to distinguish these comments on the grounds that
they relate to (and 11lquote from the verbatim record at p. 237, supra}
"international judicial review of the internai policies of States, rather
than such review of governmental policies carried out under international
agreements". That is the distinction which my learned friends make:
international judicial review of the internai policies of States as against,
on the other hand, such review of governmental policies carried out under
international agreements.
But, Mr. President, in our submission, this is a distinction without
any difference at ali. How can the internai policies of States ever become
the subject of international judicial review other than by international
agreement? How is it possible to have international judicial review of
the internai policies of States if there is no convention to that effect?
Whence, for instance, does the European Court of Human Rights derive
its jurisdiction? From a convention, Mr. President.
The situation with which Sir Hersch Lauterpacht was dealing was, in
our respectful submission, the very one whîch Applicants say applies to
the Mandate, namely "difficulties inherent in international judicial re
view ... carried out under international agreements" (p. 237. supra}.
And, in the passages quoted, the learned author gave his reasons why
States would, in his view, not be prepared to enter into such international
agreements. They may be briefly summarized as follows, Mr. President.
Firstly, the point made by the learned author as quoted in the Re
joinder,V, pages 154 to 155: he notes that criticisms of the manner in
which the United States Supreme Court performed its function of judicial
review show the extreme delicacy and difficulty of this task of review,
involving as it does the application of law which isindefinite and elastic
in proportion to the generality of its content" (V, p. 154). The learned
author continues by painting out that within the national group there
exist restraints upon the unavoidable power of judges which do not exist,
to any comparable extent, in the international sphere. Consequently,
the implications of conferring such powers in relation to governmental
policies of sovereignand independent States upon a tribunal of foreign
judges would, in the learned author's view, be very far-reaching indeed.
The next point made by Sir Hersch Lauterpacht we find in the Rejoin
der, V, page 155. There he adverts to another aspect of the criticism
which has been voiced concerning the attitude and the functions of the
United States Supreme Court. He notes that the fact of the widespread ARGUMENT OF MR. GROSSKOPF 599
and emphatic criticism wlùch one fmds, even within the United States
of America itself, which is the principal country which has adopted ju
dicial review,and that the further fact that such a system of review does
not exist at all in many States, in manycountries oftheworld, renderit most
unlikely that any States would entrust such powers to an international
tribunaL ln the words of Sir Hersch Lauterpacht himself-"It is a ques
tion of the inherent merits of the system of judicial review both in the
national and in the international sphere" (V,p. 155).
It is instructive, in our submission, Mr. President, to note sorne of the
examples given by the learned author of States-
"... which have no judicial review within their borders and in which
legal opinion and legal tradition have resisted it vigorously and
succesfully ... ". (Ibid.)
The States which have no judicial review include a number of States
whichwere prominen tin the foundation ofthe League and the manda tessys
tem, States such as Belgium, Italy, France and Great Britain. These are
ail examples quoted by Sir Hersch Lauterpacht in his works.
Now, the third point made by the learned author we find in the Rejoin
der, V, at page 156. He notes that a judicial organ is not flexible enough,
in his view, for exercising powers of supervising obligations of the sort
with which he was dealing, and which are, on Applicants' argument,
analogons to those under the Mandate. The pith of this point is that in
cases of alleged breaches of human rights provisions the Jearned author
considered that assistance towards conciliation would often offer better
prospects of a satisfactory solution than a purely judicial determination
on the legality of the action complained of, which latter function was
the only proper one for a Court.
Consequently, Sir Hersch considered that it would be preferable to
have-
''... an organ which, although not disregarding the legal aspects of
the complaint and although empowered to pronounce on both facts
and law and to make a binding recommendation, can avail itself
of the more elastic procedure of conciliation and attempts at a com
promise ... ". (V, p. 156.)
Fourthly, Mr. President, on the same page we quote the learned author
as saying-
"... social and economie rights ... are not such asto lend themselves
to enforcement by judicial process ... they seem to be the proper sub
ject matter for ... supervision by a body ... operating through a
procedure more elastic and informai than is permissible in the case
of a court".
Mr. President, we submit that it is interesting to note how Sir Hersch
Lauterpacht, apparently by a process of completely independent reason
ing, reached much the same conclusion as was reached, in our submission,
by the founders of the League as regards the most appropriate type
of supervisory organ for obligations of this type. Thus, one finds that the
Permanent Mandates Commission and the Council were, in Respondent'~
contention, exactly suited to meet the requirements set out by the learned
author, being political and technical organs, which directed their atten
tion more to conciliation and co-operation thau to purely legal deter-6oo SOUTH WEST AFRICA
minations, but which were nevertheless able to express their views asto
legal situations and to act on such views.
1t seems clear, in our submission, Mr. President, that a court of law
would really be, with respect, an inappropriate organ in such a situation,
even if it existed merely in additionto the ordinary supervisory processes,
since, if the function and the purpose in a particular case were to effect
conciliation, the whole scheme might be upset ifa Member of the League
were suddenly to insist upon a strict legal solution of the problem; the
two might very well, in particular cases, be completely inconsistent.
Now, Mr. President, these various points are not dealt with by Appli
cants at all; they limit themselves, as we have noted, to a distinction
which, we submit, is untenable-between the content of Judge Lauter
pacht's comments and the nature of the Mandate. Applicants then pro
ceed to say in the verbatim record at page 238, supra-
"... scholarly authority has found little difficulty with the propo
sition that the authors of the mandates system contemplated that
the Court would exercise powers of judicial enforcement with re
spect to disputes relating to the interpretation or the application
of any or ali provisions of the Mandate, including Article 2, para
graph 2,thereof".
The only scholarly authority quoted by Applicants is Quincy Wright,
and in none of the passages quoted does he, in our submission, advert to
the present problem at ali. The closest he cornes toit is in a statement re
garding a related, though not identical, topic, to the effect that:
"League Members have rights in the mandated territories not
only for the protection of their national interests, and the interests
of their nationals, but also for the protection of the interests of the
inhabitants of the area." (Professor Quincy \Vright, Mandates Under
theLeagueofNations (1930), p. 475, quoted in the verbatim record
at p. 238, supra.)
This statement deals with the issue asto the scope of the compromissory
clause, which was the matter raised in the third preliminary objection
to jurisdiction. The Court is referred to the Preliminary Objections, 1,
pages 389 to 394, for a full discussion of Wright's view, and of the views
of other authors on this point, and the Court is also referred to the Conn
ter-Memorial, II, pages 192 to 193, and the rg62 Oral Proceedings, VII,
pages 223 ff., where this matter was also dealt with.
From these discussions, it will, in our submission, appear, firstly, that
Wright himself was not very definite on this point, and that he does not
appear to have given the matter much consideration. It most certainly
cannat be said, in our submission, that he found little difficulty about
solving this question in the way Applicants contend.
Secondly, Mr. President, we submit that the most emphatic and the
best recent analysis on this point by scholarly authorities, is that of
Professor Feinberg, which was quoted by Judge Winiarski in his dissent
ing opinion on the Preliminary Objections at page 455, and by us in the
Counter-1\lemorial, Il, page 193. With the Court's permission, I should
like to read two short extracts from that statement. The first is:
"Like most of the writers who have, in their works, expressed a
view on the question, I consider that the judicial seUlement clause
does not confer on Members of the League of Nations the right uni- ARGUME~T OF MR. GROSSKOPF 6or
laterally to bring a Mandatory Power before the Court except in
cases where they can allege the violation of sorne right of their own
or sorneinjury to the interests of their nationals."
It is significant, we subrnit, .Mr.President, that, later in the course of
his address, the same leamed author stated:
"It is indeed difficult to imagine that, by the inclusion of the judicial
seUlement clause in the text of the Mandates, it was intended to
give each Member of the League of Nations a power so extensive
that it would enable it to set itself upas a censor of the Mandatory's
administration.''.
However, Mr. President, we do not propose re-arguing, in these Oral
Proceedings, the substance of our submissions on the former third pre
liminary objection, although, with respect, we fully abide by them, as
my learned senior indicated yesterday. This was an issue {i.e., the third
preliminary objection) on which, as we have noted, the Court was very
evenly divided and on which Respondent's submissions are set out fully
in the Counter-Memorial, Il, pages 175-193. to which the Court is respect
tully referred. On those pages we also discussed briefiy the various opin
ions and judgments of the Court in this regard.
One important point, however, which we did make in that discussion
and which might bear repetition is that, in our submission, it could. not
have been the intention of the authors of the mandates system to create
an anomalous situation in which ali Members of the League would be
entitledto assail measures or policies which had been approved by, or bad
even been recommended by, the Permanent Mandates Commission and
the Council of the League. This, in our submission, is a very important
point bearing on probable intention, Mr. President, and it is a point
which the Applicants have never really attempted to answer in these
proceedings.
Now, Mr. President, to deal with a further point raised by Applicants:
they refer again, in the verbatim record at pages 239-240, supra, as in the
Reply, to various cases decided under the provisions of the mandates,
and, in particular, to three cases-M urra'scase, Altshuler's case and Win
ters case. In the fust two cases the provisions for the Mandate for Pales
tine were in issue. These provisions are set out in the Rejoinder, V, page
148. If I may just read them to the Court:
In Altshuler's case, Article 15 of the Palestine Mandate was applied
and this reads as follows: "... no discrimination of any kind shall be
made between the inhabitants of Palestine on the ground of race, religion
or language." (V, p. 148.)
In Murra's case, Article 2 of the Palestine Mandate was in issue and
that Article prescribed that "... the Mandatory [shall be] responsible for
'safeguarding the civil and religions rights of ail the inhabitants of Pales
tine, irrespective of race and religion' ". (Ibid.)
ln our submission, Mr. President, both these articles referred to pro
hibitions on discrimination on the ground of race, religion or language,
and both constituted specifie provisions prohibiting more or less clearly
defined action. Respondent submitted in the Rejoinder that such pro
hibitions could not be regarded as analogous to the wide provisions of
Article 2. Applicants, however, dispute this contention and, in the ver
batim record at page 239, supra, they suggest that the correct analogy
between these provisions and the Mandate would be:6o2 SOUTH WEST AFRICA
"Like the latter Article [Article 2, paragraph 2], the provision of
the Palestine Mandate in question was humanitarian and protective
in purpose, general in formulation, and involved day-to-day admin
istration ofthe mandated territ ory, and accordingly a wide degree of
discretion on the part of the mandatory."
Now, Mr. President, as regards this, we say, firstly, that the words
"humanitarian" and "protective" apply to all, or nearly all the pro
visions of the South West Africa Mandate, and probably to most
of the provisions of the mandates. They also apply to completely specifie
provisions, such as those in the South West Africa Mandate regarding
missionaries or fortifications or any of the others-intoxicating liquor,
any of those-so that the mere fact that provisions are humanitarian or
protective in purpose would, indeed, appear to be completely immaterial
for present purposes. These qualities do not support, in our submission,
a contention that judicial review was .intended in addition to adminis
trative supervision, nor, indeed, do they support the contrary conten
tion that such review was not intended. In our submission, they are com
pletely neutra!, they do not bear upon the issue raised by our contention
in this regard at aiL
Now, the second point of analogy referred to by my learned friends,
is that of generality in formulation. Generality in formulation would, in
our submission, appear to be a matter of degree. However, in this respect
we contend that the difference between the provisions are so substantial
as to amount almost to one kind. I shaH come back to that point in a
moment, Mr. President, when 1deal with the last alleged point of analogy.
Now, the final suggested analogy is that these provisions involved day
ta-day administration and, consequently, also the discretion of the man
datory. In our submission, l\'lr. President, that does not follow. The fact
that the provisions of the mandates involved day-to-day administra
tion does not mean that they involved a wide degree of discretion on the
part of the manda tory. The two questions are entirely distinct. In fact,
the prohibitions set out in the Palestine Mandate constituted specifie
limitations on the mandatory's discretion, and were, in that respect,
similar to Articles 3 to 5 of the South West Africa Mandate. They did
not, as was the case with Article 2 of the South West Africa Mandate,
indicate only a goal to be achieved, leaving the method to be employed
to the discretion of the mandatory, and it is the existence and nature of
that discretion which, we submit, was granted by Article 2 (and which,
as 1 understand, my leamed friends representing the Applicants do not
dispute, that is, that there was a discretion), which, in our submission,
leads to the conclusion either thatArticle 2 was not intended to be justici
able at ali, or, alternative! y, that ifit were intended to be justiciable, th en it
was to be such only on the basis of Respondent's good or bad faith-the
alternative contention with which we shall deallater. Of course, 1 am now
dealing only with the fust contention, namely that, in our submission, it
was not intended to be justiciable at aiL
That, then, is our argument concerning the two cases Mr. President.
In addition Applicants relied on a case in the South African Appellate
Division, Winter's case, which referred speciftcally to Article 2 of the
South West Africa Mandate. In regard to this case Applicants say: "The
Court in that case, therefore, did not refrain from adjudicating the issue
whether legislation was in conflict with the obligations of Article 2, para
graph 2, of the Mandate." (P. 240, supra.) ARGUMENT OF MR. GROSSKOPF 603
Now, we dealt with this matter, Mr. President, in the Rejoinder, V,
at pages 149-ISO, and we pointed out there, firstly, that the Court ex
pressly gave no decision on the point whether "... the Courts in S.W.A.
would have jurisdiction to declare ultra vires any legislation in conflict
with the provisions of the Mandate ... ". So, the Court did not decide the
issue whether it really had any power-any testi nower, or power of
review-as far as the Mandate for South West Afnca was concerned.
But, in addition, Mr. President, the Court, in effect, held that Article
2, paragraph 2,imposed no limitation at ali on the full sovereign author
ity of the mandatory in the respect in question. The Court held that, in
the relevant respects, there was no limitation, that the mandatory had
full sovereign authority to act as it did. Consequently, there could be no
question-and no question could or did arise-whether the legislation
was indeed, to quote Applicants "in conflict with the obligations of Arti
cle 2, paragraph 2, of the Mandate" (p. 240, supra). If power is full
and sovereign then it can ex hypothesi not be exceeded.
Now, consistently with thisapproach, the court, in Winter's case, did
not conduct an independent enquiry into justiciability of a recital in the
preamble to the proclamation which was in issue and which stated that:
"... the ordinary law of the land [was] inadequate to enable the
government to fulfil its duty in safeguarding the welfare of the
inhabitants ... ".
In effect, therefore, the judgment taken as a whole, meant no more
and no less than that it was for the legislature, in the exercise of its
sovereign or discretionary powers, to decide on the expediency or neces
sity of the particular measures, and that it was no function of the Court
to determine whether those measures were necessary or expedient, or,
for that matter, lawful.
Now, Mr. President, in dealing with our contention regarding the in
tention of the authors of the mandates system on the question of jus
ticiability by the Court, Applicants also refer to the concept of the deniai
of justice.They did so in the verbatim record at page 240, supra, where
they said:
"The concept of judicial review of international obligations was
familiar to the founders of the mandates system. One illustration
among many is to be found in the arca of state responsibility for
deniai of justice.
This legal doctrine often had been applied to policies and practices
of executive and legislative authorities, as well as to decisions of
judicial tribunals.
lnasmuch as the doctrine of deniai of justice applies to treatment
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 aliens involve
considerations of law and of justiciability analogons in important
respects to governmcntal policics and practices affecting inhabitants
of mandated territories."
To understand the full import of this contention, Mr. President, it
would, in our submission, be necessary to refer also to a further passage,
where the Applicants dealt 'vith this topic. This further passage really
relates to our alternative contention, but, for the sake of completeness
and, also, to get the thread of the argument, we think we should refer SOUTH WEST AFRICA
to it at this stage also. They said at page 254, supra, in support of the
argument that "... the concept of discretionary powers limited by legal
norms is weil known to international judicial tribunals", that such norms
existed as so-called international norms which govern the treatment by
governments of aliens living within their borders. There are two ways
in which Applicants appear to rely on these rules regarding aliens, and
which may be analysed as follows: they rely on them, firstly, to show
that the founders of the mandates system were familiar with the idea
of judicial review of internai policies and practices of States and, secondly,
to demonstrate that international judicial tribunals judge such policies
and practices according to legal norms and not with reference to a test
of good or bad faith. At present we are only concemed with the fust
contention-the latter will be dealt with at a later stage.
Now, this first contention would, upon analysis, Mr. President, appear
to be this, namely that aState commits an international delict if it treats
an alien otherwise than in accordance with certain minimum interna
tional standards. The argument proceeds that it is no defence for the
State concerned to show that the alien was treated in accordance with
the laws of the State, in exactly the same manner as its own nationals
are treated, if the laws themselves fall below the minimum standards.
And, the argument goes on, international judicial tribunals must con
sequently often evaluate the normal internai policies and practices of
a State in order to ascertain whether its system of law and administration
complies with such international minimum standards. Ail this brings
my learned friends to the conclusion that the authors of the mandates
system were farniliar with the concept of such judicial review, and that
they would consequently have found it perfectly natural to provide for
judicial review of Respondent's policy and practices in South West Africa.
Now, Mr. President, before proceeding to consider the merits of this
argument, there is one point on which I think we may fairly comment,
and that is whether the Mandate made provision for sorne form of judicia1
review. That has been an issue in these proceedings since the Preliminary
Objections were filed, and now, for the first time, Applicants raise this
question of deniai of justice to aliens-and, indeed, they elevate it to
their prime example of the type of judicial review which, they say, was
so common that it was adopted in the Mandate without objection or even
discussion. This isthe pattern which they suggest the authors of the Man·
date intended to apply to the Mandate. Now, if the rules regarding aliens
were indeed so generally known, and so closely analagous to those of the
Mandate, as is suggested by Applicants, the question arises why it has
taken the Applicants three-and-a-half years to realise their significance?
Mr. President, we submit that this whole argument is an afterthought,
and that the reason why it was not raised earlier will become apparent
when its merits are considered.
To substantiate this contention Applicants have, in our submission, to
prove at least two facts-firstly, that the existence and validity of the
so-called international minimum standards were generally accepted in
1920, and secondly, that judicial review involving the application of
such standards was a common-place and well-known occurrence at that
stage. As to the fust question, that is, whether the so-called interna
tional minimum standards were generally accepted in 1920, we submit
that Applicants have completely failed to establish such a proposition.
In fact, they did no more than quote the views held by Mr. Elihu Root ARGUMENT OF MR. GROSSKOPF 6os
in rgro; that we frnd in the verbatim at pages 254-255, supra. Now, we
are quite prepared to concede that Mr. Elihu Root, and probably a
number of other scholars, were, at that stage, of the opinion that every
State was obliged, according to international law, to treat aliens in ac
cordance with a certain minimum standard, but this does not, of course,
mean that this view was generally held at that stage, or even that States
generally accepted such a responsibility, or that aU commentators on
international law, or even most of them, accepted that that was the rule
at that stage. In our submission, the truc position is that, until relatively
recently, at least until afte1920, the prevalent view was that a State
could not incur international liability as long as it treated aliens in the
same manner in which it treated its own nationals. This view may be,
and has been, called the theory of national treatment, and we may refer
the Court in that regard to Andreas H. Roth, The Minimum Standard
of International Law Applied to Aliens, page 62 and followi Antp.age
62, the author of this work says the following regarding th1s theory:
"This theory starts from the major postulate that the alien must
accept the legal conditions which he finds in the country of residence,
and that neither he nor his government can justifiably complain if
he is accorded, like nationals, the benefit or application of those
conditions."
It suffices, Mr. President, to cite a few instances in which this theory
was propagated, bath before and subsequent to 1920. One finds that in
May 1914· four years after the statement by Mr. Roth upon which
Applicants rely, the American and British Claims Tribunals in the Caden
head case spoke of-
"... the general!y recognized rule of international law that a foreigner
\vithin the United States is subject to its public law, and has no
greater rights than nationals of that country". (American and Brit
ish Claims Arbüration. Report of Fred K. Nielsen, p. 507.)
In 1926, Mr. President, there was a sub-committee of the Com
mittee of Experts for the Progressive Codification of InternationalLaw,
appointed by the League of Nations, the Rapporteur of which was Mr.
Guerrero, who wrote at the time:
"Unless we are ready to overset the one true basis of international
law-the collective will of States-wc will not entertain the suppo
sitionthat States, when they entered the community, ever contem
plated an abridgment of the dignity and authority of their own
courts of law.That, however, would be the final result of rehearing
a case where no provision for appeal existedunder the legislation of
the State concerned; and yet the advocates of the theory of interna
tional responsibility, in connectionwith judicial decision vitiated
by manifest or flagrant injustice, would inevitably be led to provide
for sorne such rehearing." (Quotedby Alwyn V. Freeman, The Inter
national Responsibility of States for Denial of Justp.630.)
On the same occasion Mr. Guerrero also said the following regarding
the treatment of aliens:
"The maximum that may be claimed for a foreigner is civil
equality with nationals. This does not mean that a State is obliged
to accord such treatment to foreigners unless that obligation has
been embodied in a treaty. We thereby infer that a State goes be-6o6 SOUTH WEST AFRICA
yond the dictates of its duty when if offers foreigners a treatment
similar to that accorded to nationals. In any case, aState owes noth
ing more than that to foreigners, and any pretension to the con
trary would be inadmissible and unjust both morally and jurid
ically."(Andreas H. Roth, The Minimum Standard of International
Law Applied to Aliens, pp. 72-73.)
Now that was as late as rgz6, Mr. President.
Reference may also be made to the views expressed by certain delegates
at the conference for the Codification of International Law, which was
held at The Hague in 1930, regarding the concept of deniai of justice.
1 do not wish to read them ali, but would refer the Court to one or two
of the views. The first is that of the Egyptian delegate, Abd el Hamid
Badaoui Pacha, which one finds in the minutes of the Third Committee,
League of Nations' document C 35I(C}MI4S(C), page ros. Then, 1 would
also referthe Court to a statement by Mr. Sipsom, of Roumania (in the
same document at p. rr4), and thirdly, the following statement by Mr.
Wu, of China (at p. 187):
"I have to propose, therefore, a single standard, a definite stan
dard; that of the treatment accorded to a nation's own nationals.
From the point of view of logic, from the point of view of justice, I
do not see that any nation can complain. When a person goes to
another country he goes there with full knowledge of the conditions,
whether they are as good as those in his own country or whether they
are worse ...
Secondly, he goes there uninvited. 1 do not think any nation legally
and morally invites foreigners to come to its soil; foreigners go
there of their own accord. Why, therefore, should the Government
of that country be saddled with a heavier responsibility than that
which it has towards its own nationals?"
Now, that, Mr. President, was as late as 1930, that is, ten years, or more,
after the Mandate was founded.
As a final reference to authority on this aspect I quote an extract from
a work, also published in 1930, which is called The Canons of International
Law, by T. Baty. At page 123 the author says:
"It is easy to be seen how this hampers the self-development of a
nation [this being the concept of a deniai of justice]. It creates a
privileged class in its midst, to whom the laws and the standards of
the country are not applicable .
. . . It is not enough for the modem exploiter that he receives equal
treatment with the native. He demands better treatment, and much
better treatment. He must not only have a due application of the
native law, but the native law must be such as his Govemment consi
ders just.
So far, the evil has not gained a great hold on the world: it is
mainly in the area of the Caribbean-in Mexico, San Domingo,
Hayti, Nicaragua, San Salvador-that it has raised its head. But it
is a very menacing phenomenon."
So, in our submission, Mr. President, it follows that there is no sub
stance at all in any contention that it was generally accepted, round about
rgzo, that a State's treatment of aliens was governed by so-called mini
mwn international standards. Mr. President, the implications are, of ARGUMENT OF MR. GROSSKOPF
course, that if the rule reqwred only equality of treatment between aliens
and nationals, then any tribunal determining whether the rule had been
complied with, did not review at all the merits or the efficacy of a State's
machinery-administrative, judicial, or legislative: it then had a purely
factual enquiry before it, namely what standard applied and what treat
ment was available to nationals, and what treatment was given to the
alien, and, on comparison, did the allen get similar treatment to, or the
same as, the national~ question asto the merits of the governmental
machinery, or policies, ofhe State would arise at all. So, Mr. President,
once we show that these minimum standards were not generally recog
nized in 1920 at ali, that by itself sufficiently negates any validity the
Applicants' argwnent might have had. But, Mr. President, we go further
and say that, even if one assumes that such standards were generaliy recog
nized, Applicants would still have to show that there was fudicial review as
regards thesestandards, and that judicial review as regards such standards
was so common that the authors of the mandates system would, without
discussion and without comment, have applied a similar type of review
to the 1\landates. This, in our submission, Applicants have also not donc,
Judicial review can, in the nature of things, arise only pursuant to ex
press provision in treaties, and, as far as Respondent is aware, there
certainly were not many treaties providing for adjudication on the treat
ment of aliens in 1920-nor, for that matter, are there at the present
stage. And, indeed, Applicants refer to only one case in which such stan
dards were applied by a judicial tribunal, and that is the Roberts daim,
which was considered by the General Claims Commission in 1926. This,
in our submission, is not surprising, since the application and develop
ment of the theory of international minimum standards in the judicial
sphere is generaliy attributed to this very Commission. Thus, the very
fust case in which the standards were applied, in a manner to which we
will refer at a later stage of this argwnent, was decided in 1926-the
case which pioneered this system on which my learned friends rely was
decided as late as 1926, after the authors of the Mandate had long per
formed their functions.
It follows, therefore, in our submission, Mr. President, that, contrary
to what Applicants contend, the concept of judicial review of the internai
policiesand practices of a State in relation to aliens, the concept of ju
dicial application of so-called minimum standards to a particular State's
treatment of foreigners, was unknown, or at least virtually unknown,
when the mandates system was conceived; and even today, Mr. President,
as far as we are aware, compulsory jurisdiction regarding allegations of
deniai of justice to aliens is not such a very commonplace phenomenon
eîther.
Now, even the concept on which my learned friends rely, that of
minimum international standards, is, in our submission, much more
limited than they suggest. We shaH come to that at a later stage when
dealing with the basis upon which Article 2 (2) should be adjudicated,
ifat aiL At this stage it will suffice to say that the test to be applied by
a tribunal in determining whether the obligation has been violated is,
for ali practical purposes, indentical with the test of good faith which,
as we submit in our alternative contention, is the only test which can be
applied by the Court in deterrnining alleged violations of Article 2 of
the Mandate. However, we shaH discuss that at a later stage.
In any event, M.r. President, the obligation regarding aliens is on any6o8 SOUTH WEST AFRICA
basis, by its very nature, a much more limited one than the obligation
which my learned friends suggest applies in the case of mandates. This
is so by virtue of the fact, firstly, that it relates only to aliens, so that if
the government of any country is under an obligation in that regard, the
obligation is limited to a relatively small class of persans. namely aliens;
and furthermore, Mr. President, only the States of which the complainant
alien is a national would have the right to complain; there is not at ali,
there never was, and there never can be, the very wide type of judicial
review which my learned friends suggest applies in the case of the Man
date, where every i.\Iember of the League could bring the Mandatory
before the Court. One would have, in respect of aliens, the position
that only the State of which the alien was a national could raise the
matter, either through diplomatie channels or otherwise, or before a
tribunal.
So, for ali these reasons,r. President, we submit that this new argu
ment which Applicants have now introduced in the Oral Proceedings in
an attempt to explain the basic improbability inherent in their case, on
this aspect, must fail, as, we submit, must the other arguments in that
regard.
Now, linked up with this aspect we have the question of the minori
ties treaties and the Constitution and Conventions of the International La
bour Organisation. The Applicants referred to these instruments at pages
241-242, supra. These instruments, Mr. President, have been canvassed
very thoroughly in the pleadings, and it is not necessary to say a great deal
about them here. As we have shown in the Rejoinder, V, pages rso-rsr,
and in the Counter-Memorial, Il, pages r87-190, the content and pur
poses of these instruments were so vastly different from that of the Man
date, and the extent of the Court's power so much more limited than is
suggested to be the position in the case of the Mandate, that they tend to
support the Respondent's contention rather than the Applicants. The
features of distinction between these provisions and the Mandate were,
as we summarized them in general, firstly, that clear and express pro
vision was made in the said instruments for jurisdiction by the Court
they provided clearly and expressly that the Court was to have juris
diction-which is not the case here as regards Article 2 (2).The obliga
tions themselves were, secondly, in our submission, specifie, or much
more narrowly formulated than in the case of the Mandate. Thirdly, the
obligations applied in a much narrower sphere, thus limiting the implica
tions of the Court's powers. And fourthly, a narrower circle of States
possesscd locus standi to institute proceedings; in the case of the minori
ties, locus standi was confined to the Principal Allied and Associated
Powers and other members of the Council of the League. As for the con
ventions under the International Labour Organisation, such as that re
ferred to by the Applicants in the verbatim record at page 242, supra,
only States which had ratified such a convention could invoke the juris
diction of the Court; so one has the ordinary situation there that only
parties to the particular convention, which provides for jurisdiction, can
invoke the jurisdiction of the Court. But in this regard we refer the Court
respectfully to the more detailed discussion in the Rejoinder and the
Counter-Memorial, at the pages 1 have quoted. However, in regard to
the circle of States competent to invoke jurisdiction, there is one point
that I do think we should note at this stage, and that is that the only
argument which the Applicants advanced to explain the difference in this ARGUMENT OF MR. GROSSKOPF 6og
regard, i.e., to explain why there was such a limitation as to States en
titled to invoke the Court's jurisdiction in regard to minorities, on the
one hand, as against mandates, on the other, was that the intention was
one "of keeping to a minimum the international disputes which might
arise with regard to this question" (p. 241, supra).
Thus, Mr. President, according to their contention, only a limited
number of States were entitled to invoke the Court's jurisdiction in thf!
case of minorities because the founders of the minorities system intended
to keep to a minimum the international disputes which might arise with
regard to the question of minorities. The suggestion, if we understand it
correctly, seems to be that a grant of competence to invoke jurisdiction
to more States would have resulted in more international disputes, or,
to put the matter differently, the creation of machinery for adjudication
was regarded as something which would tend to give rise to disputes
between the States competent to utilize such machinery.
Now, we have always assumed, Mr. President, that the converse was
the position, namely that compulsory jurisdiction tended to limit the
number and gravity of disputes, and not extend it. On the Applicants'
contention, carried to its logical conclusion, the authors of the Mandate
must have been imbued with the intent to increase to a maximum the
international disputes which might arise with regard to this question,
inasmuch as they gave the right to institute proceedings to all the Meru
bers of the League: on a parity of reasoning they must have thought that
they would thereby provoke a great number of disputes, and not limit
them, as in the case of the minorities.
Now, Mr. President, Applicants at pages 242-243. supra, of the same
verbatim record, quote further examples of cases of justiciability which
they suggest are analogons to that under the Mandate. These are ail
matters which were dealt with on the pleadings, and it is, therefore,
not necessary to say much more about them, except that, in our sub
mission, they are concerned with tapies which either are not analogons
to the Mandate-or relate to conventions concluded much later than
the Mandate-in sorne cases, years later, and in sorne cases more than
a quarter of a century later, such as the European Convention for the
Protection of Human Rights and Fundamental Freedoms. This Conven
tion is quite an interesting example in its way, Mr. President, because it
shows that even at that stage, even after the Second World \Var in 1950,
agreement could be reached among the contracting parties only after
much discussion, and only with carefully devised precautions such as
relatively precise definitionand the creation of a unique and elaborate
system of enforcement. We note these points on the Rejoinder, V, pages
rsr-153, and, Mr. President, we also contend there that if a relatively
closely knit number of States required so much discussion and so many
precautions in 1950, it is difficult to imagine how the large number of
States coming from ali parts of the world which created the Mandate
and the League in 1920 could have introduced a system of judicial re
view much more far-reaching without any discussion, without any com
ment, without anydebate. Inoursubmission, Mr.President, the comparison
between the two instruments and the manner in which they were drafted
clearly shows up a weakness in Applicants' case, and not in Respondent's.
In the Iight of what I have said, Mr. President, it is in our submission
remarkable that Applicants can say, as they do at the end of the discussion
of this matter-page 243, supra, of the same verbatim record:6ro SOUTH WEST AFRICA
"In the premise then, Mr. President, it is not at all surprising,
given the numerous examples and wide knowledge and acceptance
of, the principle of international judicial review of governmental
policies, including those encompassing political, economie and tech
nical aspects,hat the authors of the mandates system not only should
have bestowed a like power upon the Permanent Court, but that
they did so without objection and even without discussion."
In fact, we submit that the Applicants have not produced any examples
at ali of "international judicial review of governmental policies" prior
to the establishment of the Mandate. Prior to the Mandate, in our sub
rnission, there was nothing of the sort,and Applicants do not, in our sub
mission, quote any examples of such judicial review existing at any time,
prior to or subsequent, which is as far-reaching as that which they
suggest was included in the Mandate "without objection and even with
out discussion".
Thank you, Mr. President. 6u
8. ARGUMENT OF MR. DE VILLIERS
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA AT THE PUBLIC
HEARINGS OF 14-26 APRIL 1965
Mr. President, if it were to be held that the Court was intended to
possess jurisdiction regarding disputes arising from the interpretation
or application of Article2 of the Mandate, even in cases where no inter
ests or rights of the Applicant States are directly involved, then the
question arises as to the basis upon which such alleged breaches of the
Article fall to be considered by the Court-the basis upon which the
Court is to determine whether or not violations of the Article have been
committed .
.Mr.President, the nature of the problem arises immediately from the
very wording of the Article, from that broad, general formulation:
"The Mandatory shall promote to the utmost the material and moral
well-being and the social progress of the inhabitants" ... It does not say,
Mr. President, that the mandatory shall build so many schools every
year. It does not say that the mandatory shall make roads. It does not
say that the mandatory shall build dams, that it shaH provide for eco
nomie development of particular areas and it does not specify how many
hospitals are to be built, how many factories, which industries are to be
developed, and so forth. Those are the types of matter which are encom
passed in the whole objective, as set out in the Article, of promoting to
the utmost material and moral well-being. Now it may happen that the
mandatory in a particular period has built, say, rs schools and two
hospitals. Is the Court to say to the mandatory, "You ought to have
built more hospitals and Jessschools", or "You could have done better
you could have built more schools and more hospitals", or "You gave
too much attention to education in this period and too little to economie
development"? 1 am just mentioning examples, Mr. President. On what
basis does a court determine that it can say things of that kind to a
mandatory, when the function of goveming the country has been given
to the mandatory, and the function of promoting well-being and prog
ress to the utmost has been committed to the mandatory's charge?
That is the type of question which immediately arises here, in a practical
way, and, therefore, the question arises, if the court is to have a function
of adjudication at ali on the conduct of the mandatory, what is the legal
basis ofthat adjudication to be? This, of course, involves a pure question
of interpretation of the obligation in its setting in the mandate-inter
pretation, that is, on the principles which we have discussed. And we
find, Mr. President, that the confusion which is inherent in the Appli
cants' argument again manifests itself here-the confusion between
interpretation and application. It leads them to attribute an argument
to us which we have never used: we find it in the verbatim record at
page n8, supra, and it reads-
"... that the scope and content of its obligations [that is, Respon
dent's obligations] under Article z, paragraph 2,should be measured
essentially on the basis of standards prevailing in 1920, when the
Mandate was conferred".
Mr. President, we never contended for anything of the kind. We contend
simply that Article 2, paragraph 2, should be interpreted to bear the 612 SOUTH WEST AFRICA
meaning it bore in 1920, and, therefore, to have the scope and the content
intended by its authors. Whether Respondent should maintain standards
prevailing in 1920, or standards prevailing in 1965, or to what extent
standards enter into the picture at ali,depends, Mr. President, on the
question of the meaning, the scope and the content which the Article
had in 1920, which it has in 1965 and which it will still have in 1975,
if not modified in the meantime.
Mr. President, the question under discussion is then, what is, in the
sense which I have indicated, the correct interpretation of Article 2 in
regard to the basis upon which alleged violation of its provisions is to be
determined.
I speak purposely in this regard of Article 2, the whole of Article 2,
because I submit that it is only on considering the Article as a whole and,
of course, also in its context in the mandate instrument as a whole, read
against the background of the Covenant, that one can properly assign
an interpretation to paragraph 2-to the obligation set out therein.
1 shaH deal, Mr. President, with this question of interpretation for
present purposes, in the following order. First, with the true interpreta
tion which, in our contention, is to be put on the Article, regard being
bad at the same time to comment and criticism of that interpretation
which have been offered by the Applicants' representatives. Secondly,
I shall proceed to consider the so-called interpretation offered'by the
Applicants themselves.
Now, Mr. President, in regard to our interpretation, the Court will
recall that we summarized our contentions by way of certain proposi
tions, set out at pages 157-158 of the Rejoinder (V). We called them
simple propositions, simple, of course, in the sense of being elementary.
We were not thinking of Simple Simon.
It may be useful, in the light of what the Applicants have said in this
regard, to begin the discussion by referring again to the wording of those
propositions as they are summarized.
At page 157, proposition (a) read:
"Respondent was granted 'full power of legislation and adminis
tration'. Such grant necessarily entailed that Respondent was
required and entitled to use its discretion as to the need for and the
manner of the exercise of its powers."
It was, therefore, necessary to use discretion in that regard-in regard
to both the need for and the manner of the exercise of the powers.
Proposition (b) reads:
"It is of the essence of a discretionary power that an act pur
ported to be in exercise thereof is not illegal unless it is contrary to
sorne legal provision regulating such exercise, or exceeds the limits
express!y or by implication placed upon the power. No regulatory pro
visions were imposed in respect of Respondent's powers under the
Mandate, thus leaving only the question as to the nature of the
limitation imposed by Article 2, paragraph 2."
The statement that no regulatory provisions were imposed is qualified
by the footnote, to this effect, that:
•·zFor present purposes the limitations expressed in Articles 3, 4
and 5 of the Mandate ... are not relevant and are therefore not
mentioned." ARGUMENT OF MR. DE VILLIERS 613
They are, of course, particular limitations upon the power of the Manda
tory. They do not, however, affect the issue for the moment, as far as
Article 2,paragraph 2, is concerned.
:t\Ir. President,in regard to these statements, as contained in our
propositions (a) and (b), theApplicants, according to theverbatim record
at page 243, supra, stated that the propositions "appear unobjectionable,
subject only to certain cautionary comment", which I need not refer to
further at this stage. I shall refer to it later. ·
The Applicants' real diffi.culty with our propositions, concerned pro
positions (c) and (d), which I shaH now read:
" (c) The only limita tion placed by Article 2, paragraph 2, on the
discretionary power vested in Respondent was that such power
should be exercised for the purpose of promoting to the utmost
the well-being and progress of the inhabitants of the Territory."
(V, p. I57·)
And proposition (d):
"(d) Consequently the Court can determine whether a legislative or
administrative act or policy constitutes an infringement of
Article 2, paragraph 2, only by examining whether or not the
exercise of discretion involved in such act or policy, was di
rected at the purpose of 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." (Ibid., pp. I57-IS8.)
Now, Mr. President, the comment of the Applicants on these pro
positions (c) and (d) is in the verbatim record at page 243, supra, and it
was, as the Court will recall, a highly excited one. The general corrunent
was this:
"Propositions (c) and (d), however, are destructive of the sacred
trust and rob the obligation to submit to international supervision
of any meaningful reality."
After quoting proposition (c), Mr. President, my leamed friend, Mr. Gross,
proceeded:
"Respondent's insertion in the formulation of the phrase 'for the
purpose of promoting' is, of course, a gratuitous gloss on Article 2,
paragraph 2, and vitally alters its character. The actual terms of
that Article embody no such express or implied limitation, contain
no reference to the purpose of promoting, but state a flat and
unqualified obligation that Respondent 'shall promote to the
utmost', and so forth, in the words of the Article. In view of that
fact it may be fair to comment that Respondent's formulation is
not merely a gratuitous gloss, but implies a unilateral and off-hand
modification of the terms of that provision."
At the next page (p. 244), after proposition (d) had been read, the
further comment was:
"Therefore, the amendment of Article 2, paragraph 2, implicit in
proposition (c) is a vehicle for importing into the Article the good
or bad faith test, as is made explicitly clear in proposition (d) which
1 have just quoted."614 SOUTH WEST AFRICA
The issue then, Mr. President, is fairly joined on our formulation in
proposition (c)-the formulation which brought the powers and the
obligation in conjunction with one another, with reference to a concept
of purpose. That is said to be a "gratuitous gloss" and the unilateral and
off-hand modification of the terms of the provision.
Now, Mr. President, in our submission, these comments show a com
plete Jack of understanding, or of acknowledgement, of two matters,
firstly, ofthe ordinary legal relationship, logical relationship, between
the powers of a trustee and the obligations of a trustee and, secondly,
Mr. President, of the principles upon which violation of a discretionary
function can be held to have occurred. Those are the two basic concepts
underlying the whole problem, here, the two concepts to be borne in
mind, and the Applicants' comment, I submit, shows no acknowledge
ment of those concepts at all, nor of the princip les involved in that regard.
Let us take the first one-the relationship between the powers and the
obligations of a trllStee. We have, in that regard, very pertinent comment
expressed by the former President of this Court, Sir Arnold McNair,
in his minority opinion in 1950. 1read a quotation from page 149 of that
opinion:
"The Anglo-American Trust serves this purpose, ... [of] the
vesting of property in trllStees, and its management by them in
order that the public or sorne class of the public may derive benefit
or that sorne public purpose may be served." (I.C.]. Reports I9JO,
p. 149.)
In other words, the following is the function or purpose which the tfllSt
serves: propert y is vested in trllStees; powers of management are given
to trustees for a purpose, the purpose being public benefit, or the serving
of sorne public purpose, as expressed by the learned judge.
I quote at the same page this further passage:
". . . the tfllStee, tuteur or curateur is under sorne kind of legal
obligation, based on confidence and conscience, to carry out the
trust or mission confided to him for the benefit of sorne other persan
or for sorne public purpose ;".
Again there is mention of a relationship, Mr. President, between the
functions, and powers which are given and the purpose for which they
are given.
The next quotation I wish to read, appears at page ISO of the same
opinion:
"... the measure of its powers [now these concepts are applied to
the Mandatory, and when Sir Arnold McNair says 'its powers' in the
context it means the Mandatory's powers] is what is necessary for
the purpose of carrying out the Mandate ... [the powers] are 'tools
given to him in order to achieve the work assigned to him';".
Mr. President, this quotation which has often been stressed by my
Iearned friends in another context, indicates exactly the relationship
which we contend to exist between the powers given to the mandatory
and the mandatory's obligation, a relationship of purpose, of object.
I am not tied to terminology. We could talk of a purpose; we could talk
of an object; we could say they are given to hlm in order to achieve the
work. The concept, however, remains the same.
So, Mr. President, already there is an indication that if we have put ARGUMENT OF MR. DE VILLIERS
any kind of a gloss, gratuitous or otherwise, on this Article, then we
seem to be in very good company. But the matter does not end there,
1 refer, Mr. President, to another work to which the Applicants have
often referred in these proceedings-the work entitled The Mandates
System: Origin, Principles, Application-a League of Nations publica
tion. We refer toit in the Rejomder, V, at page 20, where there is set out
the comment, that the sacred trust principle in the mandates system
relates to "... the fundamental objective of the mission undertaken by
the Mandatories".
Itis quite natural on the part of ail these commentators to speak of
the sacred trust principle, of the obligation to promote well-being and
progress, as being the fundamental objective of the mission or of the
mandate undertaken bv the mandatories.
We refer at the very same page to an extract from a well-known
report by Mr. Hyrnans in the League time-
"[p]aragraphs r and 2 of Article 22 have indicated the spirit which
showd inspire those who are entrusted with administering peoples
not yet capable of governing themselves ... ".
Again, there is the same concept of an objective, of a spirit.
Now we come to the majority opinion in 1950. At page 132 thereof we
find this formulation:
"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."
(I.C.]. Reports I950, p.132.)
Again, Mr. President, the relationship is expressed in the phrase: "with
the object of." As I have said, I am not wedded to terminology. I am
perfectly prepared to substitute "object" for "purpose".
At the sarne page wc find the following said by the Court:
"The Mandate was created, in the interest of the inhabitants of
the territory, and of humanity in general, as an international
institution with an international object-a sacred trust of civiliza
tion."
At page 133 the Court said, after referring to the obligations conta.ined
in Articles 2 to 5 of the Mandate;
"These obligations represent the very essence of the sacred trust
of civilization. Their raison d'êtreand original object rernain."
(I.C.]. Reports I950, p. IJJ.)
So, M.r. President, if my learned friend speaks of a gratuitous gloss he
could now begin to indicate whose gloss he is talking of.
We come to a passage which appears at page 152 of Sir Arnold McNair's
minority opinion in rgso, in which he cited a statement by Chief Justice
Latharn of Australia, which read as follows:
"The rnandatory, as a kind of international trustee, receives the
territory subject to the provisions of the mandate which limit the
exercise of the governmental powers of the mandatory." (J.C.J.
Reports I950, p. 152.)
In· other words, Mr. President, there is, again, the concept that the
relationship between the powers, on the one band, and the provisions, SOUTH WEST AFRICA
providing for obligations, on the other-a relationship of obligations
limiting the powers.
In the rg62 ]!ldgment, at page 329, we find the Court using this
description "[The mandates system] ... is dedicated to the avowed
abject of promoting the well-being and development of the peoples
concerned: ... ". 1 quote again at the same page of the rg62 Judgment:
"The rights of the Mandatory ... are, so to speak, mere tools given to
enable it to fulfil its obligations."
Again, Mr. President, we find the sarne concept in that phrase "tools
given to enable it''. The tools were given for a purpose-with an object
of bringing about fulfilment of obligations.
Still at the same page, I quote again from the rg62 Judgment:
"... each Mandate under the !Mandates System constitutes a new
international institution, the primary, overriding purpose of which
is to promote 'the well-being and development' of the people of the
terri tory under Mandate".
This very explicit statement and formulation, Mr. President, accords
exactly with our contention. The powers were given in the first portion
of Article 2, and were limited with reference to a purpose, the purpose
being the sacred trust. This principle had already been set out in Article
22 of the Covenant of the League, and was then re-formulated, in the
second portion of Article 2 of the Mandate, as an obligation imposed
upon the mandatory.
So, Mr. President, nothing of the nature of a glass is involved in our
contention, which merely contains the ordinary natural description
given by any commentator to the relationship between the powers of a
trustee and the obligations imposed upon the trustee. Powers are given
for the purpose of complying with the trust-with the abject of com
plying with the trust-and complying with the trust means fulfilling the
obligations.
We have, quite naturally, a similar formulation by Lord Hailey in
a passage which we cite in the Counter-Memorial, Il, at page 388, a
passage which was written in 1946 by Lord Hailey, specifically .with
regard to Native Affairs in South West Africa:
"It need hardly be recalled that the Mandate did not itself set
forth the methods to be pursued in the conduct of Native Affairs.
Article 22 of the Covenant of the League placed on the Mandatory
a general obligation to consider the weil being and development of
the population whose tutelage it had undertaken. The Mandate
laid down that while the Mandatory should have full power of
administration and legislation over the territory as an integral
portion of its own territory, it should promote to the utmost the
material and moral weil bemg and the social progress of the inhabi
tants. The primary abject of this provision was clearly to protect
the interests of the Native inhabitants of the territory ...
In regard, however, to the policy to be observed.in Native Affairs
the prescriptions of the Mandate, where they were in any sense
precise, were of a negative rather than a positive character. Thus
it required the Mandatory Government to prohibit the slave trade
and the supply of intoxicating beverages to Natives, to control the
traffic in arms, and to permit forced labour only for essential works
and services. It prohibited the military training of Natives, save ARGUMENT OF MR, DE VILLIERS 617
for purposes of internai police and local defence, and it guaranteed
the free exercise of ali forms of worship and the free entry of ali
missionaries belonging to any State member of the League of
Nations. But in other respects it left the Mandatory Government to
~·nte thepmrehods by which it should promote the wetl being of the
Natwes of the territory. Thitremained for it to frame its own policy,
within this general objective, in respect of matters such as the control
over land, the system of justice, the procedure of taxation, the
extent to which regard should be had to native law and custom,
the provision to be made for the social services of health and educa
tion,and the part to be taken by the Native population in the
political institutions of the country."
AUthe matters, to which the last portion of the quotation refers, were
left to the discretion of the mandatory. The mandatory was to frame
its own policy with regard to them, but within the general objective, the
general objective being, as stated by the learned author, to promote the
well-being of the Natives of the Territory.
So, Mr. President, any formulation which we choose, in that regard,
i.e., in relatinge powers of the mandatory to the obligations of the
mandatory-whichever way we try-we must come to a concept of a
relationship of purpose, a relationship of abject, whatever words weay
use to express that concept.
And that brings us to the second part. The second aspect which, I
submit, was completely overlooked by the Applicants in forrnulating
their submissions, relates to the princ1ples upon which a discretionary
power-a discretionary function-is exercised, and the principles upon
which it can or cannat be said that there has been a violation of an
obligation involved in such a discretionary function.
In that regard, Mr. President, 1 should, first of ali, like to refer the
Court to the wording of Article 2 of the Mandate itself:
"The mandatory shall have full power of administration and
legislation over the territory subject to the present Mandate as an
integral portion of the Union of South Africa, and may apply the
laws of the Union of South Africa to the territory, subject to such
local modifications as circumstancesmay require."
First, -Mr. President, there is this general concept of full power of
administration and legislation vested in the mandatory. Now, surely,
that concept, in itself, involves the grant of a sufficient discretion to
enable a government properly to exercise its power of administration
and legislation. lt is of the essence of ali our concepts regarding the
nature of governmental powers that a government, upon which powers
of administration and legislation conferred in a broad general formula
tion ofthis kind are, is not only entitled, but also obliged, to use its
discretion in deciding what it should do by way of exercise of those
powers, what particular acts it should decide upon, which courses it
should pursue, which it should Ieave, and, particularly, the manner in
which it will pursue any particular action.
That is part and parcel of the general concept of a full power of govern
ment-a full power of administration and legislation.
Secondly, we find, it is stated, that the mandatory "may apply the
laws of the Union of South Africa to the Territory"-not "shall" but
"may". Who is to decide whether any particular law of the Union of6r8 SOUTH WEST AFRICA
South Africa is to be applicd to the Territory or not? The mandatory is
to decide. It is required of the mandatory to use its discretion in deciding
whether a particular law is or is not to apply. And this concept is subject
to the limitation expressed in the words "subject to such local modifica
tions as circumstances may require". In regard to this limitation the
same principle applies. Who is to decide whether the tax to be levied in
South West Africa is to be the same as that in any of the provinces of
South Africa. Surely that is, in essence, a matter in the discretion of the
authority to whom full power of administration and legislation has been
given, namely the mandatory.
So, Mr. President, the basic concept which we have is that of a discre
tion inherent in this grant of power. The only further question which
could arise is a matter of interpretation, namely asto what extent that
discretion was limited, by any of the other provisions of the Mandate,
and in particular, for present purposes, bythe provisions ofthe second para
graph of Article 2 of the Mandate. I shaH come back to that in a moment.
First, I would like to refer the Court to the very explicit recognition
that has been given by varions commentators to this factor of discretion,
and to its importance. We refer the Court first, to a statement by Chief
Justice Lat ham of Australia in the same judgmen t mentioned previousl y.
We quote it in the Cowlter-l\!emorial, U, at pages 387-388. After stating
that "In the case of 'C' Mandates ... the mandatory powers ... has
full powers of administration and legislation over the territory subject
to the mandate as an integral portion of its territory", and, after further
discussion, the leamed Chief Justice stated, Mr. President, "ft is clear
that itwas intended that in the case of 'C' Mandates, the fullest powers of
government shottld beconferred upon the mandatory power''. (Italles added.)
We proceed to a quotation from a statement by M. Orts, a member
of the Permanent Mandates Commission, contained in the minutes of
the Ninth Session of the Permanent Mandates Commission:
"The development of primitive peoples could be carried on by
different means, and these means would be such as were proper to
the native genius, traditions, and the political and philosophical
conceptions of each mandatory State. The mandatory States would
fail in their task if a system and method foreign to their mentality
were imposed upon them.
The duty of the Commission was conûned to discovering whether
the manda tory powers conformed to the definite obligations imposed
upon them by the Covenant and by the mandates, and in addition,
whether, within the limits of these acts, they were honestly per
forming their task in order to justify the confidence reposed in them."
(Italics added.) (U, p. 388.)
The statement provides, Mr. President, an exact confirmation of our
contention as to the manner in which the mandate instrument is to be
interpreted, namely as containing a full grant of powers of legislation
and administration, carrying with it all the discretion necessary for that
purpose, subject only to such limitations as are indicated Iater in the
same instrument. These comprise a general limitation in the second
paragraph of Article 2, and specifie limitations in Articles 3 to 5- As this
learned member of the Commission said, those specifie, definite ·obliga
tions were to be complied with and, in addition, the mandatories were
charged with the obligation of honestly performing their task, in arder ARGUMENT OF MR. DE VILLIERS 6rg
to justify the confidence reposed in them. The discretion, therefore,
in so far as there is not a specifie provision to the contrary, remains, and
it remains both in regard to the exercise of a power and in regard to the
compliance with the obligation-the general trust obligation-imposed
in Article2 of the Mandate. \Ve refer, in that regard, also in the Counter
Memorial, at page 388, to a statement from Quincy Wright, reading:
". . . the prescriptions of the Covenant and of the mandates vary
greatly in definiteness. Sorne regulations like those on slave, arms
and liquor traffic, military bases, recruiting, and the open door are
quite definite; but, on the other hand, certain principles like 'the
well-being and development' of the inhabitants ... are so vague as
to admit of a broad variety of policies."
Again, Mr. President, there is the same concept. The leamed author
brings the broad ~ran tf a discretionary power into conjunction with
the broad obligatiOn of promoting to the utmost material and moral
well-being. Accordingly one has a full retention of discretion in the whole
concept, because there is, apart from Articles 3 to s. nothing which
prescribes exactly what the mandatory is to do, what it is to leave, and
m what manner ltis to act in achieving this general obligation imposed
upon it.
That is the essence also of the statement which I have already read
to the Court from Lord Hailey which is repeated in the Counter-Memo
rial, ll, at page 388. In addition, we quoted in the Rejoinder, V, a com
mentary from Bentwich on the mandates system; that is at page 158
and reads: "No attempt is made in the Mandate documents or by the
Mandates Commission to lay down any particular system of govemment
applicable in these territories. The Mandatory in this respect has a free
hand, and may introduce such measures of autonomy as he thinks fit.
The guiding principle is that the Govemment must have in view the
interests of native mhabitants. Great variety in the system of adminis
tration, in fact, exists, even within a single country under mandate, and
sorne of the mandated territorieshave indeed been divided by the
Mandatory for legislative and administrative purposes." (Italics added.)
Thus this author also stresses the existence of an element of discretion,
save and except where there are specifie provisions to the contrary.
Now, Mr. President, the essence of a discretionary power in our sub
mission is that the holder thereof is entitled ta exercise a choice on the
question whether particular measures or action are to be taken, or
whether they are not to be taken, whether others are ta be taken in
preference to them, and particularly as ta the manner of carrying those
measures into effect.
The essence of this matter is that the holder of the discretion is entitled
as of rightta make that choice. And it follows, M.r.President, that if the
discretion is an absolute one, in other words, if it is not subject ta any
restriction at ali, the holder is entitled as of right ta exercise his function
in whatever manner he thinks fit as long as it still, as a matter of con~
cept, constitutes the exercise of his function and does not really con~
stitute something clse.
It follows, Mr. President, that any action taken in the exercise of the
discretionary function would in those circurnstances be legal; or, con
versely, that no action taken with a view to exercise of the discretionary
function could be regarded as illegal. In principle, the situation in this620 SOUTH WEST AFRICA
regard is the same also where one has limitations on this question,
except that then the field in which the discretion operates is narrowed
down. Where one has specifie provisions saying how discretion is to be
exercised in particular instances, thcn, of course, those are to be observed.
Where there are general directions as to the manner in which a discretion
is to be exercised, or as to matters to which regard is to be had in the
exercise of a discretion, all those can constitute fetters or limitations
upon the total area in which a discretion is to be exercised. However,
even after all the fetters have been taken into account, there remains a
residuum, and within that residuum where no specifie provision applies,
the exercise of a discretion is required and authorized.
Mr. President, it does not, therefore, matter as a matter of principle
whether we are dealing with a situation where there are sorne limitations
upon discretion, or with one where there is none. As soon as we have
isolated the residuum from the limitations, then we come into a sphere
where, when the Mandatory acts honestly with a view to fulfi.lling his
function, he acts legally. There is then no basis upon which it can be
said that he is not acting legally, because he is doing not only what he
is entitled to do,but also what is expected of him.
Consequently, Mr. President, it should be emphasized at this stage,
that it is the discretionary nature of the Respondent's powers which
gives rise to the basic consequence for which we contend in respect of the
obligation contained in paragraph 2of Article 2,namely the consequence
that the Court is not entitled to express a judgment on what it regards
as the merits of an exercise of the discretion, but that the only function of
the Court is to determine whether or not any of the limits imposed
in regard to the discretion were exceeded. Of course, if the Court were to
find that, on a proper construction of the instrument, sorne limitation
was imposed either expressly or by necessary implication on the 1\fanda
tory's discretion, and that that limitation has been exceeded, then of
course there is a basis upon which the Court can say that the Nl.andatory
has acted in violation of its obligations. But if the Court finds that the
Mandatory has remained within the sphere of its discretion, there is no
legal basis upon which the Court can substitute its discretion for that
of the Mandatory. The Court will, therefore, in those circumstances
give to the merits of the Mandatory's actions only such consideration
as may be necessary in order to see whether any limit has been trans
gressed at ail. It will not, however, give to the merits of a decision the
type of consideration which is given by an appeal tribunal. It will not
decide whether, if it had to decide that question for itself, it would
decide it in the same way as the Mandator-y decided it. The Court's
function is not that. The discretion, the function of governing, was
given to the Mandatory and the Mandatory is to exercise it, not the
Court. If the Mandatory exercises its discretion within a sphere in which
it was intended that the Mandatory should exercise it, the Mandatory
acts legally, and whether the Court thinks it acts wisely, or whether the
Court likes the policy applied or does not like it is, legally speaking,
irrelevant. It may sometimes be necessary to give attention to the merits
of what the bolder of a discretionary power has done as a factor in the
consideration of the question whether a particular limit to the discretion
has been exceeded or not; but that is a different question; that is a
different purpose for which consideration is given to the merits of the
action of the particular holder of the discretionary power and duty. ARGUMENT OF MR. DE VILLIERS 621
These consequences which I have just mentioned, illr. President, are
logically inherent inail cases where courts have to decide on the legality
or otherwise of the exercise of a discretionary power. Therefore, we find
that it is recognized in all systems of law of which we are aware. We gave
references in the Rejoinder, V, pages IS8-IS9. to the laws of England,
France, Germany, Italy, Belgium, the Netherlands, and Luxembourg,
in this regard.
Mr. President, it is on the above-mentioned basis that the question of
good or bad faith cornes into the picture, namely on the basis of tcsting
whether what was done in a particular case, was, in fact, done in the
exercise of the power assigned to the holder of the power, with a view
to achieving the abjects attached to the power, with a view to com
plying with the obligations imposed upon the holder of that power, or,
on the other hand, whether it was directed at sorne other objective
whether it was motivated by sorne other consideration. That, after ail,
is the fundamental test, namely whether an action, in truth (apart from
what might be pretended in that regard). falls within the scope of that
function which was intended to be exercised by the holder of the power.
And that is why one then cornes upon this concept of good or bad faith.
The broader concept of which it forms part is the concept of a proper
use of powers as opposed to one of an abuse of powers. There are varions
ways in which a discretionary power can be abused: one of them is con
stituted by an act of bad faith, bad faith in the sense that the powers
are not utilized for the purpose for which they were granted, but for an
unauthorized purpose. There are in fit cases, of course, other bases upon
which the Court, in the exercise of what might be called a function of
review, as distinct from appeal, could give consideration to a matter of
this kind. The Court could have regard to an express limitation upon
power, an express limitation upon discretion, an express injunction asto
the manner in which the holder of the power is to act in certain circwn
stances. If anything of that kind has been transgressed, of course, there
is a basis for interference. Limits may be indicated in another manner.
They may be indicated simply by the positive description wlùch is given
to the function or the power, e.g., that the holder thereof may go so far
and no further. If 1 may use the analogy, one may have in a federal
constitution a setting out of matters A, B, C, D, andE on which a federal
parliament might legislate. The very limits of the powers of that par
ticular govemment would then be indicated by the enumeration of those
matters A, B, C, D andE. They go so far and they go no further. Soif
that parliament were to legislate on subject For G, which is not includcd
in the enumeration at aU, then it does something which it has not been
authorized to do. That in itself would constitute something which runs
contrary to the powers and contrary to the obligations or limits upon
powers imposed in the particular case.
But, Mr. President, those are merely exarnples of the type of situation
which might arise. One may also find that, in certain cases whcre a
discretionary power has been conferred or a discretionary function has
been imposed upon a persan or a body, such a persan or body may for
sorne bona fi.dercason fail to exercise its discretion. The persan or body
may misinterpret the function assigned to it; it may misinterpret the
terms of reference, if 1 may cali them that-the provisions of law which
describe and circumscribe its functions. And it may then consider that
what it is supposed to do, relates to subject A, whereas it, in fact, relates622 SOUTH WEST AFRICA
to subject B; or it may wrongly suppose that in fulfilling its function
there is a rule whlch requires it to act in a particular manner to the
exclusion of other methods, whereas, in fact, it ought to apply its mind
also to the possibility of applying such other methods. In circumstan
ces of that kind it is, of course possible for a court to say that, de
spite complete bona fides on the part of the holder of the power, the
holder has still failed to exercise its power or its function and has,
therefore, violated its obligation, because its obligation is to apply its
rnind to ali relevant questions. Those are bases weil known to courts
whlch have to exercise a function of review-bases upon whlch they can
come to a conclusion that there has been an excess of the limits imposed
upon a discretionary power-bases which may, as I have said, in fit
cases involve complete acceptance of the bona fides of the holder of the
power.
But, Mr. President, as we emphasized in the pleadings, and we empha
size again, there is no practical possibility of a situation of that kind
arising in regard to the Mandate for South West Africa. The position is
stated so clearly; there is no possible chance of a misunderstanding;
and the Applicants, as we understand them in their pleadings, do not
allege any bona fide misunderstanding on our part at ali. They allege
that a policy is being applied by the Mandatory-the Government of
the Union of South Africa-which is, as far as a particular part of the
population is concemed, not aimed at the objective of promoting to the
utmost, but aimed at a different objective. That is in effect, if we analyse
their factual allegations, whatever label or tag they may give to them,
the effect of the allegations they make. They do not suggest anywhere
that the Mandatory Government, in fact, misunderstands its function
or that it acts bona fide in a manner contrary to what is required of it;
the allegations are that, by a delibera te and systematic process, it pursues
certain objectives which are not authorized objectives. And that is the
whole basis, as we see it, of the dispute between the Parties in regard to
Article 2, paragraph 2, of the Mandate.
It is, therefore, Mr. President, by a process of elimination that we
come to this ultimate conclusion, which is stated in our propositions
(c) and (d) in the Rejoinder which I read to the Court previously. We
start off with the discretionary power given to the Mandatory. \Ve then
consider whatl imitations there are on that power. We have regard in
that context to the provisions of Articles 3 to 5 of the Mandate, pre
scribing specifie things that are to be donc and indicating negatively
specifie things that are not to be done. We exclude those from considera
tion since they do not apply for present purposes-allegations of con
traventions of those particular articles, are dealt with in a different part
of the case.
That leaves only the statement of the obligation in the second para
graph of Article 2.That statement is one of a broad obligation. When it
is analysed one finds that it does not say specifically "the Mandatory is
to do this, the Mandatory is not to do that". lt states that a certain
objective is to be pursued. When the whole concept of promoting to
the utmost material and moral well-being of a people, or of peoples, is
analysed, Mr. President, that concept is one of broad objective-it does
not indicate manner, it does not indicate particular actions. It indicates
a broad objective which corresponds with the objective stated at the
very head of the whole formulation of the principles of the mandates ARGUMENT OF MR. DE VILLIERS 623
system set out in Article 22 of the Covenant itself. And it is for that
reason that one finds, on analysis, that the only limitation relevant for
present purposes is the limitation relating to the objective, or the pur
pose, for which the powers that have been granted may be exercised.
If the Court is to exercise a function at ail of adjudicating on questions
falling under Article 2,paragraph 2, of the Mandate, this is, in our sub
mission, the only legal basis upon which it can do so. 1t can decide whether
actions taken, whether a pohcy that has been formulated, whether mea
sures that have been adopted-whether aU these are directed to the
purpose set out in the mandates system as a whole, i.e., in Article 22,
and reformulated in the second paragraph of Article 2 of the .Mandate.
That is the only basis of testing the legality or otherwise of the actions
of the M:andatory which are under consideration at the moment. It is
inthat sense that the concept of good or bad faith becomes relevant, i.e.,
inthe sense of determining whether actions, policies and so forth are in
good faith dirccted at that objective, or whether they are in bad faith di
rected at sorne ulterior objective, sorne ulterior motive, something unau
thorized, something not comprised in the intentions of the authors of the
mandates system.
It is also in that sense, Mr. President, that the authorities speak in
this regard of good or bad faith. 1 referred the Court before to the formu
lation of M. Orts which is quoted in the Counter-Memorial, II, page 388.
He stated that the Permanent Mandates Commission had to consider
"... whether, within the limits of these acts, they [the mandatories] werc
honestly performing their task ... " (italics added). Lord Hailey, in the pas
sage quoted on the same page, said that the general obligation was "to
consider the weil being and development of the population"; and Bent
wich, in the portion which we cited, spoke of "The guiding principle is ...
that the Govemments must have in view the interests of the native
inhabitants".
The other passages I had in mind, Mr. President, are in the Rejoinder,
V, page 16r. 1 cite first from an eminent English judge, who said:
"\Vhen, however, it is said that the court must not interfere
with the exercise of that discretion by the statutory body which has
the power vested in it unless the statutory body is using the power
vested in it otherwise than in good faith, 1think that means, other
wise than for the purpose for which those powers are vested in it."
That was Lord Justice Vaughan Williams, in 1907. Then, Mr. President,
we have Lord Lindley stating as follows:
"1 take it to be clear that there is a condition implied in this
as well as in other instruments which create powers, namely, that
the powers shall be used bona fide for the purposes for which they
are conferred."
That, therefore, Mr. President, is the sense in which good and bad faith
is relevant to this matter, and by a process of elimination we eventually
find that that is the only test which is capable of being applied in this
particular case. 1t is not a matter of importing a gratuitous gloss into
the article; it is not a matter of unilaterally modifying it, it is not a matter
of building a bridge towards importing this test of good or bad faith-it
is one which follows as a matter of law and of logic from the very nature
of the powers which have been granted, and the manner in which they SOUTH WEST AFRICA
are circwnscribed by reference to obligations, in the mandate instrwnent
with which we are dealing. It is the only conclusion at which one can
arrive by a process of interpretation of that instrument.
And, Mr. President, we find then that if we analyse the Applicants'
attitude in this regard, it does not amount to assigning to these provisions
of the mandate instrument a different meaning in this respect. The
Applicants do not say that the mandate instrument is to be so interpreted
as to eliminate this element of discretion on the part of the Respondent
Govemment. On the contrary, they admit-subject only to certain
qualifications,to which I said I would refer again-that the formulation
of our fust and second propositions was perfectly in order; that it was
unobjectionable. So they admit that element of discretion. They do not
contend that in sorne way or other the Court is now to decide whether
the Mandatory, in doing certain things, in achieving a certain measure
ofprogress over a certain period, has, in fact, promoted toe utmost. They
do not suggest, Mr. President, that therc are factual standards or bases
upon which such a proposition could be tested-standards or bases
whereby the Court could say to the Mandatory: "You ought already to
have reached this point, but you have only reached a point about half
way at this particular stage." Indeed, Mr. President, that would be a
very difficult approach for any court to follow. It would really be im
puting to the authors of the mandates system also an intention which
they could as a matter of probability never have had, bccause this ap
proach would involve a determination ex post facto of the legality, or
otherwise, of a mandatory's conduct: one would have to allow the man
datory tocontinue fortwo years, or for five years, or for ten years, and then
suddenly clamp down on it and say: "Now, let us see-how far have you
got?" ln the rneantime one would not be able to interfere, since the
Mandatory exercises a function in respect of which it has a discretion, as
the Applicants admit. The Mandatory would be carrying on its task
ostensibly in the exercise of that function, and only after a certain period,
the Court would say: "Weil, you ought to have done more. You know
you have not really promoted well-being and progress to the utmost at
ali." Surely, Mr. President, that could never have been the intention of
the authors of the system. A very pertinent factor in this regard is the
feature to which my learned friend, Mr. Grosskopf, referred this morning,
namely the positive contemplation of the authors of the mandates system
that in the functioning of this system mandatories would have the assis
tance and the collaboration of the Permanent Mandates Commission
and the Council of the League-in other words, the assistance of those
processes of administrative supervision, as weil as the technical assistance
and expert assistance involved therein, which would really constitute a
process of continuai consultation between the mandatory and those ad
ministrative supervisory bodies-a process of consultation which would
lead it from step to step in the application of certain policies. So how
could there possibly have been a contemplation that after a certain pe
riod of years a court should suddenly be askcd to decide whether the
mandatory has indeed, or has not, promoted to the utmost? And the
question might be asked, Mr. President: On what basis, upon what cri
tenon, does the court decide that? Would the court decide it with refer
ence to comparative circumstances as far as possible, i.e., by referring
to what has been achieved in other comparable territories, in Africa or
elsewhere? ARGUMENT OF MR. DE VILLIERS 625
That is not the basis which is being suggested by my leamed friends
in this case. They are not suggesting that that ought to be the basis of
approach. In fact, they went to the utmost lengths in the pleadings to
deny the relevance of comparisons of this kind, which we introduced into
the picture in arder to restore sorne balance. They deny the relevance of
comparisons, and have great difficulty with a proposition that there is
to be an inspection to compare comparable standards. The whole basis
of this legal contention. as I understand it, is that one is now to have
regard to modern standards, modern legal nonns-contemporary norms
and standards which are to be read into the Mandate by means of a
process of interpretation.And these suggested norms and standards will
be found to relate not to the question, ~Ir President, whether there has
factually been progress of a certain kind, or not. On the contrary they
relate only to a particular method of dealing with sorne of the problems
which arise in a territory like South"West Africa, and which could arise
in other territories with a multi-racial composition. Thus they relate to
the question of whethcr members of the various population groups are
to be treated alike, whether the children, for instance, are to be put into
the same schools or separate schools, rather than to the question of
whether the number of schools and the number of children of school
going age actually at school, proves in that respect that the manda tory
has fulfilled its task.
The whole contention, Mr. President, centres not on what the Appli
cants allege to be a flat obligation of actually promoting progress, but
relates purely to a certain technique, a certain method, a certain manner
in which, they say, certain of theproblems inherent in a task of that kind
are to be approached. And that, Mr. President, as we have pointed out,
they seek to achieve not by assigning an alternative meaning, or an alter
native scope to the obligation as originally agreed upon by the formders of
this system in 1920, but by importing into this instrument certain things
that are not there, and which they admit were not there in1920. They say
so themselves. They say certain current norms and standards are to be
regarded as relevant in this context. They say they arrive at thal result
by a process of interpretation, although, of course, one finds nothing
stated in the mandate document regarding any standards of that kind
no reference whatsoever to any questions of method of that kind-no
norms of the kind referred to by the Applicants-no express reference to
that at all-and yet they say "by a process of interpretation" we are now
to read the mandate instrument as containing those things. We submit,
Mr. President, that there is quite obviously no legal basis whatsoever
for a contention of that kind.
[Public hearing oj22 April I965]
Mr. President, my leamed friend, Mr. Grosskopf, and 1 dealt last
Wednesday, before the adjoumment for East er, with our argument on the
correct interpretation of the Mandate on the question of the legal basis,
if any, upon which the Court can adjudicate upon alleged violations of
Article 2,paragraph 2,of the Mandate. My leamed friend, Mr. Grosskopf,
dealt with our main contention in that regard, namely that the Court was
not intended by the authors of the Mandate to adjudicate at ali upon
questions where no direct rights or interests of the Applicant States are
involved. I commenced our argument on the alternative contention, SOUTH WEST AFRICA
namely that if there is a basis for adjudication it must be one similar so
that upon which municipal courts exercise a power of review of decisions
of a tribunal, a person, a body exercising a discretionary function, as
distinct from appeal therefrom. We submitted that, in the ultimate re
suit,the only possible criterion for adjudication in the present case would
be on the basis whether the actions taken by the Mandatory were per
formed in pursuance of powers which were exercised with a bona fide
purpose or objective of promoting well-being and progress to the utmost.
It resolves itself, into other words, in an enquiry as to the purpose or the
objective of the action, the policy, the measures under consideration.
Now, .M.r.President, may I, with respect, before proceeding with the
argument, just by way of summary-even although it may involve a
slight measure of repetition-indicate the main steps which led to this
result that is, to our above-mentioned construction, so as to provide
the basis for considering further the argument presented against our
construction by the Applicants. 1 dealt with the subject in sorne detail
! virtually covered the field-! am now merely stating the main steps by
way of conclusion and summary.
Our contention is that Article 2, paragraph I,of the Mandate conferred
full power of administration and legislation. This, in the fi.rst place,
covered the whole field of possible govemmental action-the whole con
ceivable area in which a government could act by way of administrative
action or by way of legislation-nothing was withheld. In other words,
there is no possibility here of a situation arising in which an action can
be said to be ultra vires merely because no power was given to take that
kind of action. The only possible basis for holding an act to be outside
of the powers granted would be of a different kind: such basis would be
the transgression of a limitation upon powers; it cannat be said that
powers to do a particular kind of thing were not conferred.
This grant of full power of government and legislation included the
necessary discretion which is inherent in all powers of this nature-a
discretion to decide what action to take, and how, or in what manner,
that action is to be pursued. 1 gave the Court references to a nurnber of
authorities, mainly in municipal law, on this particular question. I omit
ted, however, to refer to an important decision in this regard by the Per
manent Court, namely the Lighthouses case. We refer to that case in the
Counter-Memorial, Il, at page 387. The Permanent Court there said:
"... any grant of legislative powers generally implies the grant of
a discretionary right to judge how far their exercise may be necessary
or urgent; ... It is a question of apprecia ting political considerations
and conditions of fact, a task which the Government, as the body
possessing the requisite knowledge of the political situation, is
alone qualified to undertake." {Italics added.)
As I say, I gave other references to municipal law and also to commenta
tors on the mandates system itself, who came to this same conclusion.
The only limitations on a Mandatory's powers, Mr. President, and,
therefore, the only basis on which action by a Mandatory could possibly
be regarded as ultra vires or in contravention of its obligations, would be
those which were expressed in the mandate itself. One finds two classes
of such limitations: the first-not the first mentioned, but the fi.rst to
which 1 refer-comprises those set out in Articles 3 to 5 of the Mandate;
they are "particular obligations", as the Court described them in the ARGUMENT OF MR. DE VILLIERS 627
19so Opinion, at page 133, and relate to the slave trade, the provision of
liquor and so forth. The other limitation was the general obligation-tc
promote to the utmost-set out in Article 2, paragraph 2.This descrip
tion is also in accordance with the Court's terminology in 19so. The
majority opinion distinguished in this regard between the general obli
gation in Article 2, paragraph 2-to promote to the utmost-and the
particular obligations set forth in Articles 3 to s. The particular obliga
tions are not relevant to the present part of the case. In so far as the
Applicants base any changes on the particular obligations, it falls to be
dealt with in a different part of these proceedings. We are concemed for
the moment only with the general obligation imposed in paragraph 2 of
Article 2. The effect of that general obligation is to limit, or to qualify,
the Mandatory's discretionary powers in one way only, and, that is, to
prescribe the object or the purpose for which the Mandatory is obliged
to use its powers. This, Mr. President, we submit, is evident for two
reasons, with which 1 have also dealt fully: the ftrst is that promotion of
the well-being and progress of the peoples concerned is the overriding
trust purpose or object of the whole mandates system, and, indeed, of
every mandate. I gave the Court a number of references to authorities
stressing that aspect of the matter. Secondly, Mr. President, the very
generality of the obligation makes it clear that one is concerned here
merely with a matter of objective or purpose, and not with matters of
detail concerning methods of achieving the purpose: the obligation, as it
is recorded, relates only to a broad aim, or an objective, or purpose.
In the result, Mr. President, except for Articles 3 to s. there is nothing
which impairs the Mandatory's discretion to decide on specifie actions,
measures, orpolicies, oron methods to be applied in pursuance ofmeasures,
actions or policies which are directed at achieving this general, prescribed
objective. In the result we contend further that as long as the Mandatory
honestly attempts to achieve this objective, its conduct cannot be re
garded as a violation of its obligation.
\Vhether a court, or anybody else, agrees or disagrees with the methods
and policy employed in the attempt, or whether a court, or anybody else,
likes or dislikes those policies, doesnot matter. The legality of the action
of the Mandatory is not affected as long as it honestly attempts to achieve
the said objective.
Stated conversely, Mr. President, the proposition amounts to this,
namely that violation of that obligation can occur only, firstly if the
Mandatory makes no genuine attempt at ail to fulfi.lits obligation, or,
secondly, if the Mandatory directs its measures and its policies at sorne
unauthorized objective or purpose. Those are the only conceivable bases
upon which, in our submission, a Mandatory can be said to violate its
obligation undcr Article 2, paragraph 2, of the Mandate.
Both of these bases involve an abuse of power. In the fi.rstcase, where
the Mandatory does not try at aU, it knows that it is obliged to attempt
to achieve that result, to promote to the utmost. Secondly, where the
illandatory directs its powers of government and legislation at an ob
jective which is not the authorized or prescribed one, it would likewise
be abusing its power, in view of the fact that there is no possibility of
misunderstanding in this regard.
Mr. President, in the circumstances of a case where, as 1 have said,
there is no possibility of a misunderstanding-a bona fi.de misunder
standing-on the part of the Mandatory a violation of Article 2on eith~r6z8 SOUTH WEST AFRICA
of the two bases would necessarily involve an element of intentional, or
mala fide, abuse of power. The Mandatory would intentionally and
knowingly be violating its obligations. That is the only basis upon which
violation can occur, in our submission, in the particular circumstances of
the Mandate.
Now, Mr. President, we have already dealt with certain of the Appli
cants' arguments against that construction whlch we submit to be the
only possible one which can be put on Article 2,paragraph 2, i.e., on the
asswnption that the Court was intended to exercise any power of adjudi
cation in this regard at all. We have dealt with their suggestion that the
incorporation of the idea, or concept, of a purpose into the matter amoun
ted to a "gratuitous glass" or a "unilateral and off-hand modification of
the provisions of the Mandate" ~that it amounted to a vehicle for im
porting into the article the good or bad faith test. 1 have dealt with those
arguments and 1 need not refer to them again.
It remains for us to deal with certain other arguments advanced by
the Applicants, and I wish to do so now.
The first of those arguments we find in the verbatim record at pages
256-257, supra. There, the Applicants deny that there is any relevant
distinction, for the purposes nnder consideration, between Article 2,
paragraph 2, on the one hand, and Articles 3to 5 of the Mandate, on the
other hand. They say in this regard that Article 6 requires reports con
ceming "... the measures taken to carry out the obligations asswned
under Articles 2, 3, 4 and 5 ... " (P. 256, supra.) Next, fllr. President, they
say that this shows, in their submission, that:
"... the authors of the mandates system envisaged no distinction of
a legal character between the obligations under Article 2, as distin
guished from Articles 3, 4 and 5" (ibid}.
They refer to a possible distinction, Mr. President, on the basis of
generality of formulations, but they say, even in this regard, that:
"... the wording of Article 6 of the Mandate Agreement indicates,
... that no distinction was drawn or perceived by the authors of the
Mandate between, or among, these articles on the basis of the method
of their formulation" lP· 257, supra).
That is on the basis of generality as opposed to the specifie formulation
of Articles 3 to s.
Mr. President, in our submission, this argument of the Applicants
hardly warrants a reply. It is so clear that that distinction does exist,
and that it forms part of the very nature of the whole framework of the
:Mandate.
Nevertheless, in so far as the reference to Article 6 of the Mandate is
concemed, we submit that the inclusion, in this Article, of reference to
aUthe Articles of the Mandate (that is from Articles Ito sl. indicates that
they were regarded as identical in one respect only, and, that is, that
they aU required acconnting. That was the only respect in which they
were identical for purposes of Article 6. No further inference is logical,
or possible, from the mere fact that Article 6 refers to them ali.
1 have dealt with the obvious differences that, in fact, exist between
Article 2, on the one hand, and Articles 3 to 5, on the ether, and a num
ber of commentators, as 1 have pointed out, have referred to this feature
of the matter. ARGUMENT OF MR. DE VILLIERS
The most striking feature is the generality of formulation of Article 2
and, as a necessary corollary, as we pointed out, Article 2 provides, or
allows, scope for the exercise of a discretion, whereas most of the other
articles allow no discretion at ail, or hardly any discretion.
\Ve referred, in regard to these differences, to the Opinion of the Court
in 1950, and to commentators such as M. Orts, Hailey and Bentwich, ali
of whom emphasize this aspect of difference and distinction between
Article 2 and Articles 3 to 5-
What is strangest of all, Mr. President, is that the Applicants conceded
the existence of a discretion under Articl2.Thus they conceded in effect,
the main difference between Article 2 and the others but, they neverthe
lesssay that no significant distinction can be drawn between Article 2
and Articles 3 to 5 asto the basis of adjudication.
\Ve submit that there is no substance whatsoever in that argument.
Then, Mr. President, we fi.ndthat the Applicants in the same verbatim
record, and following on the argument with which I have just dealt,
rcferto a well-known report of Mr. Hymans to the Council of the League
~the portion of the report in which Mr. Hymans indicated that it would
be part of the function of the Council, as the supervising administrative
authority, to concem itself not only with the question whether the man
datory power had remained within the Iimits of the powers which were
conferred upon it, but also with the question whether the mandatory
power had made good use of those powers and whether its administration
has conformed to the interests of the native population.
In this regard they submitted, Mr. President, that, in the words of
Mr. Hymans, the Council was to consider "whether the administration
has conformed to the interests of the native population", which, they
say~
"... is quite a different standard than to say or to ask whether the
interests of the 'Native' population have been served according to
the best judgment or good faith of the Mandatory" (p. 257, supra).
And at page 258 they say:
"\Vhat was for examination was, in the words of Mr. Hymans, the
question of the whole administration, not the conscience of the ad
ministra tor."
· 1\-IrPresident, we fully agree that when it came to the function of
administrative supervision to be exercised by the Council, the Council
had, certainly, to concem itself with the whole administration and, there
fore, also with the question whether the mandatory power had made
good use of its power. The question for examination was, then, the whole
administration, but that was examination by the authority exercising
administrative supervision. As we have indicated before, that authority
had the task of collabora ting with the Mandatory in so far as the exercise
of the M.andatory's discretion was concemed.
· It is quite a different matter, Mr. President, when it cornes to deciding
whether a violation has occurred of the Mandatory's obligations by
reason of any particular conduct on the part of the Mandatory. The
Mandatory's discretion is referred to by Mr. Hymans himself m this
report~ ihn very words to which the Applicants refer-where he
distinguishes between the question "whether the Mandatory Power has
remained within the limits of the powers which were conferred upon it" SOUTH WEST AFRICA
(p. 257, supra): i.e., the question whether the mandatory power has
acted in accordance with its rights or powers, or whether it has violated
any obligations. That is the question on the one hand. And it is from
that proposition that Mr. Hymans distinguishes the other one, namely
whether the mandatory power had made good use of those powers.
Nowhere does Mr. Hymans suggest that there would be any violation
of an obligation, or, indeed, any ground for the Council to interfere with
the Mandatory's conduct upon a mere difference of opinion between the
Council and the Mandatory asto the manner in which the Mandatory's
discretion is to be exercised, or as to whether a particular action is to be
regarded as good use of the powers, or is not to be regarded as such.
Indeed, Mr. President, in the very next portion of Mr. Hymans' report
he draws that distinction and makes it clear that beyond acting in the
case of an abuse, or a violation, of powers the Council would have to
proceed very carefully, since it acted as a collaborator, in other words,
not as a judge. We quote the passage in the Counter-Memorial, II,
at page rzo. lt read-
"In this matter the Council will obviously have ta display extreme
prudence so that the exercise of ifs right of control should 1Wtprovoke
any justifiable complaints, and thus ùtcrease the ditficulties of the task
undertaken by the Mandatory Power." (Italics added.)
Immediately before that we quote the well-known statement by Mr.
Lloyd George, where he said that-
"... he regarded the system merely as a general trusteeship upon
defined conditions. Only when those conditions were scandalously
abused would the League of Nations have the right to interfere and
to call on the mandatory for an explanation. For instance, should
a mandatory allow foul Jiquor to swamp the territories entrusted to
it, the League of Nations would have the right to insist on a remedy
of the abuse."
Mr. President, a clear distinction is made between whatan administrative
authority could do by way of collaboration in assisting a Mandatory to
make the best use of its powers, and what a judicial authority could do
in deciding whether there had been a violation by the Mandatory of its
obligations; or, which is the same thing, whether there would be a right
on the part of the League to interfere with the Mandatory's conduct.
Then, Mr. President, there is also the Applicants' reply to the fourth
of our propositions as summarized in the Rejoinder. The Court will recall
that after we set out the first three propositions in the Rejoinder-that
is at pages rs8-r59 (V)-we also set out an additional proposition which,
we said, afforded independent confirmation of the first three. That pro
position read as follows:
"The conclusion set out in sub-paragraph (d} is strengthened by
the consideration that, whenever there is scope for honest difference
of opinion (as there often must be) on the question whether a par
ticular legislativeor administrative measure or policy dors or does
not, or will or will1Wt,in fact promote well-being and progress tathe
utmost, there are no legal norms-as distinct from political or social
views or theories-which a Court can apply for giving preference to
any of the confiicting opinions to the exclusion of the others.
Consequently, the only legally prescribed basis upon which the ARGUMENT OF MR. DE VILLIERS
Court can determine whether the Article has been violated, is to
enquire whether such measure or policy was intended to promote
well-being and progress to the utmost." (p. rs8.)
Mr. President, in this passage we italicized certain words. We italicized
the words "does or does not, or will or will not, in fact promo te well-being
and progress to the utmost", and we italicized at the end the words
"intended to promote well-being and progress to the utmost". vVe
thereby indicated and intended to bring out clearly the distinction
between one for which no legal norms, in our submission, existed, and
an inquiry for which a legal nonn did exist. There would be no legal norm,
in our submission, for inquiring whether a particular policy or measure
does or does not, or will or will not, in fact, promote well-being and
progress to the utmost. That is, as stated in the proposition, an inquiry
for which no legal norms would exist.
On the other hand, we submitted that the only legally prescribed
basis upon which the Court can determine whether the Article has been
violated is to inquire whether such measure or policy was intended to
promote well-being and progress to the utmost. For purposes of this
latter inquiry, therefore, wc indicated clearly that there was a legal
basis for adjudication-that is, in terms of the alternative contention
which I am now presenting to the Court.
We find, Mr. President, that despite this the Applicants say, in the
verbatim record at page 244,supra, that "Respondent then concludes .. .
that no legal norms exist by which a court can judge Respondent's .. .
good or bad faith". Mr. President, it is very strange how a submission
of this kind could be made at all. We made it so clear, it seemed tous.
We said that for that purpose a legal norm does exist. The legal norm is
the one which we have indicated, the one, namely of an inquiry into the
purposes of the Mandatory, and of the ~Iandato raytcular action
or policy complained of. Is the purpose or objective the authorized one
of promoting 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, Mr. President, i.e., whether a particular
persan, 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, is always
an inquiry of fact, on the outcome of which certain legal consequences
follow. The consequence in this particular instance involves a distinction
between a violation or abuse of power, and acting within the terms of
the power, or, in other words, acting legally.
Later we shaH indicate and deal with the methods which a court of
law employs in practice, and which are regularly employed by municipal
courts, in conducting an inquiry of this kind. It would, therefore,
Mr. President, appear that the Applicants' contention that there is no
legalnormand no factual basis for adjudication along the lines suggested
by the Respondent's contention, is also without any substance.
It remains for me, Mr. President, to revert to what the Applicants
called their"cautionary comment" on our propositions (r) and (2) as set
out in the Rejoinder. 1 indicated to the Court that the Applicants said
that they found our propositions (r) and (2), relating to the wide ambit SOUTH WEST AFRICA
and the discretionary nature of the Mandatory's powers under Article 2
of the Mandate, to be unobjectionable, subject only to certain cautionary
comment. That we find at page 243, supra, of the verbatim record and
it reads as follows:
"... subject ... to the cautionary comment that Respondent's
reference ... to 'discretion' does not imply that such discretion is
not reviewable on the basis of objective criteria and legal norms, and
subject to the comment that Respondent's reference in proposition
(b) to the absence of 'regulatory provisions' does not exclude the
international regulations of the mandates system itself".
Now, Mr. President, that part of the cautionary comment need not
detain us at ali. The Applicants proceed (may I fust complete this) by
stating later in the same record, at page 254, supra, that ". . . the
concept of discretionary powers limited by legal norms is well-known
to international judicial tribunals". It is not of the essence of a discre
tionary power that it must necessarily be unlimited. Therefore the
Applicants are perfectly correct in saying that the concept of a discre
tionary power limited by legal norms is, indeed, well-known. We entirely
agree: we do not contend that the discretion conferred upon the Res
pondent as Mandatory, by Article 2 of the Mandate, was a wholly
unfettered or unlimited discretion. We admit certain limitations and we
have indicated the scope of those limitations.
So, in that respect, Mr. President, there is common cause between us.
The only conflict between the Parties is on the question, what norms
exist which act as a limitation upon that discretion? We have made our
submissions and argued fully in that regard, and by a process of elimina
tion we arrived at the proposition which I have putto the Court before,
namely that the only possible test in the circumstances of this case is
that of good or bad faith in striving after an authorized or an unau
thorized objective.
But, Mr. President, the Applïcants in effect say-in fact, they say
expressly-that there are other legal norms which serve to limit this
discretion, and which in sorne respects-although they do not stress this
aspect-in effect, serve to destroy and rule out the discretion altogether.
They say that they arrive at those limitations by a process of inter
pretation. That brings us to a consideration of the Applicants' conten
tion in that regard in sorne more detail, and to weigh it against the
Respondent' s interpretation.
1 may just say, before embarking upon that inquiry, Mr. President,
that the manner in which we have approached the interpretation of the
Mandatory's powers and obligations is the standard manner which is
normally followed in the interpretation of ail constitutionalinstruments.
Members of the Court may be aware of the pronouncement of Lord
Selborne in the celebrated Privy Council case of The Queen v. Burah,
Three Appeal Cases, I87J-1878, at pages 904-905. This was a case which
arose under the then operative Constitution of India, and it concerned
the validity or otherwise of a legislative measure of the Indian legislature.
Lord Selborne said (at p. 904):
"The Indian legislature has powers expressly limited by the Act
of the Imperial Parliament which created it, and it can, of course,
do nothing beyond the limits which prescribe these powers ...
The established Courts of Justice, when a question arises whether ARGUMENT OF MR. DE VILLIERS
the prescribed limits have been exceeded, must of necessity determine
that question; and the only way in which they can properly do so,
is by looking to the terms of the instrument by which, affirmative! y,
the legislative powers were created, and by which, negatively, they
are restricted. If what has been done is legislation, within the
general scope of the affirmative words which give the power, and
if it violates no express condition or restriction by which that power
is limited, ... it is not for any Court of Justice to inquire further,
or to enlarge constructively those conditions and restrictions."
As I have said, Mr. President, this was a very celebrated pronounce
ment, because there was occasion in later litigation throughout the
British Commonwealth to refer to it again and again-repeatedly---on
questions of the validity or otherwise of statutory measures.
You may recall, Mr. President, the history in Australia in that regard,
running through Webb v. Outram, the Engineers' Case and so forth
I had occasion to go into that for other purposes sorne years ago. \Vhat
was stressed, I know, in Australia, by the Courts in South Africa, by the
Canadian Courts, and by the Privy Council sitting in appeal in varions
cases was that the approach indicated in that particular passage from
the Queen v. Burah must have been in the minds of the makers of sub
sequent constitutions; i.e., the makers of the Australian Constitution
in 1900; the makers of the South African Constitution in 1909-19IO,
and others.
That case reflects the perfectly logical approach to finding out what a
constitutional instrument says, namely what powers does it positively
confer, and what limitations does it negatively impose upon those
powers. If we look at the mandate instrument, if we look at the manner
in which it was drafted, it seems perfectly obvions, Mr. President, that
that same logical approach was inherent in the whole process of drafting.
It begins with a general provision setting out the powers of the authori
ties, in this caséthe Mandatory, and then proceeds to indicate limitations
upon those powers. Thus the sole enquiry is this: does that which is
being impeached in this particular case faU within the generality of the
powers positively conferred? There is no dispute about the fact,
Mr. President, that it does faU within the generality of the powers con
ferred. It ali concems the question of administrative and legislative
power in respect of South West Africa.
The only further question then is: does it come into confl.ict with any'
limitation on power, with any prohibition imposed upon the Mandatory,
does it exceed any limitation, and where does one find those limitations?
One finds them in this self-same instrument, and in such circumstances,
particularly when a constitutional instrument of this kind is dealt with,
it is not for a court of law "to enlarge constructively" those restrictions
or limitations.
The effect of the Applicants' submission, Mr. President, is not only
that they ask the Court "to enlarge constructively" upon limitations
or restrictions, but that they also, in effect, as I shall demonstrate, ask
this Court to indulge in judiciallegislation in that regard. They ask the
Court, in other words, to state or find the existence of restrictions or
limitations by virtue of no known process of interpretation or any other
legal process pertaining to the origin of obligations or limits upon powers.
Mr. President, may I point out, firstly, that the Applicants' argument·
is to the effect, as the Court knows, that Article 2, paragraph 2, of the· SOUTH WEST AFRICA
Mandate is to be interpreted in the light of modem norms and standards.
I indicated to the Court last Wednesday that, as we analysed the Appli
cants' case regarding Article 2, paragraph 2, it indeed amounted to an
allegation of bad faith on Respondent's part in the sense under discus
sion-bad faith in the sense that the powers granted were used for an
unauthorized purpose. When I said that, Mr. President, I was referring
to the case as we understood it to have been originally made by the
Applicants in their Memorials. I was not referring to the new introduc
tion into theircase, in the Reply, of a so-called norm onon~discrimination
and non-separation-a norm which was fust, we say, introduced in the
Reply, and which is still relied upon in the oral argument although in a
somewhat modified form.
I shall deallater with our contention that this is, in effect, a new cause
of action, because that is also contested by my learned friends on behalf
of the Applicants. For the moment I merely want to indicate that, when
I said that the Applicants' case indeed amounted to a charge of mala
fides, I referred to their case as set out in the Memorials and which was
in part, as we understood it, retained in the Reply.
If we have regard to the alleged norm of non-discrimination and
non-separation, as formulated in the Reply, and even as modified now
in the oral argument before the Court, we :findthat it involves a sugges
tion of a different norm upon which the Court can adjudicate. It would,
indeed, as formulated in the Reply, constitute an objective norm-a
norm which could be applied objectively and precisely to the circum
stances of a particular case in the same way as Articles 3 to 5 of the
Mandate could be applied objectively and precisely to a specifie case.
Itwould, then, under those circurnstances, be unnecessary to enquire
into any question of good or bad faith. One would simply have to see,
objectively, whether the provisions of that particular norm would apply
just as the Court in adjudicating upon an allegation that there is in fact
slave trade in a mandated territory, wowd simply consider the facts of
the case, and decide whether those facts do or do not constitute slave
trade in contravention of the Article: it would not consider any question
of good or bad faith on the part of the Mandatory. Similarly on the basis
of the norm of non-discrimination and non-separation as formulated in
the Reply, the Court would simply have to decide whether or not there
has been discrimination or separation in conflict with the content
assigned by the Applicants to that particular norm. And therefore it
could, in such an instance, be said to be a case of an objective criterion
or basis, and not a criterion referring to good or bad faith at all. But what
I want to stress, Mr. President, is that the argument in favour of this
proposition does not rest on a rival interpretation of the Mandate-an
interpretation which is offered by the Applicants in reply to the inter
pretation which we put on the terms of the Mandate. It is not founded,
Mr. President, on anything stated in the Mandate at all.
In the first place, it does not rest on the alleged meaning i1920 of any
provision of the Mandate-the Applicants have made that clear. Indeed,
it is not founded on anything alleged to have been contained in the
Mandate at ail in 1920, whether expressly or by implication and it does
not rest on anything alleged to have been agreed or consented toby the
Mandatory. That is the effect of the Applicants' contention, and yet they
say that their contention in regard to this norm rests on interpretation
of the I\fandate. ARGUME!>!T OF MR. DE VILLIERS
Now, Mr. President, in saying that the Applicants' contention does
not rest on the alleged meaning in 1920 of any provision of the Mandate,
there is one aspect with which I wish to deal, because it is of importance.
The Court will recall that the Applicants, by way of their "gratuitous
glass" argument, attacked our interpretation that the crucial question
for decision is the question of the purpose or the objective with which
the mandatory acts. They said, in contrast, that one does not deal with
an obligation setting out any concept of objective or purpose in that
regard, but that there was a flat and straightfonvard obligation, if 1
remember correctly, to promote to the utmost.
Now, Mr. President, if they wished to follow up that contention and
to say that that is the correct interpretation of the Mandate, it would
mean that the Court would have to test the legality or otherwise of the
Mandatory's conduct with reference to results achieved and not with
reference to the objective with which the Mandatory embarked upon a
particular policy or a particular course of conduct. The Court would then
have to adjudicate, very often ex post facto, whether certain conduct
or a certain policy of the Mandatory has or has not, in fact, resulted
in promotion to the utmost.
I indicated in my argument last Wednesday that it is most unlikely
that that could have represented the intention of the authors of the
mandate system. In the first place, nobody would have known whether
the Mandatory was complying with the Article until enough time had
elapsed for the results of the policy to become apparent. And even then,
Mr. President, it would seldom be clear in retrospect whether an alter
native policy would or would not have achieved better results. The Court
would have to adjudicate ex post facto on the hypothetical basis of
weighing alternative policies against each other. It would have the
actual results attained under a particular policy; it would then have to
weigh by way of contrast what results could have been achieved if a
different policy had been followed. Our submission is that it seems most
unlikely that the Court could ever have been intended to apply a test of
that kind. It would, of course, destroy the discretionary element in the
Mandatory's functionsand the Court would then, in effect, be substituting
its own discretion for that of the Mandatory.
In addition, Mr. President, this method of construction would bring
us to the result that the Mandatory could contravene the Article if its
policy did not come up to expectations, even through no fault on the
Mandatory's part. The l\Iandatory could, by the best possible applica
tion of its mind to the problem and by the best possible application of its
resources, embark upon a particular policy with a view to promoting
well-being and progress to the utmost. A court could then afterwards say
toaMandatoryalthoughyou did your best and honestly acted to the best
of your ability, you could have donc better, or the results could have
been better, although there was no fault on your part, the results could
have been better if you had followed a different policy from the one you
did follow. Again, Mr. President, it seems most unlikely that anybody
could have intended that that was to be the basis upon which the Man
datory's conduct under Article 2 (2) was to be adjudicated upon.
The point I want to make now and to emphasize, is that the Applicants
themselves do not, soit appears on analysis of their proposition, contend
for an interpretation of that kind. They do not contend that the policy
of the Mandatory is to be adjudged according toits results on merit, i.e., SOUTH WEST AFRICA
accordlng to what it has achieved in contradistinction to what it should
have achieved by way of total promotion of well-being and progress.
The norms upon which the Applicants rely are not sought to be justified
on the factual basis that their application would have led ta greater
well-being and progress than has actually been the case. The Applicants
have not, as I have pointed out, attempted-indeed, they have stead
fastly resisted-any comparison of standards attained in South West
Africa with standards attained in other African States. By way of illu
stration of this point, Mr. President, and because it is an important
distinction, I should like to refer to the manner in which the Applicants
dealt with certain comparisons they made in the sphere of education.
We find that they made that comparison not for the purpose of showing
what progress and promotion of well-being there has been in South
West Africa, or what progress has, in fact, been made in the different
territories,ut that they somewhat illogically describe the mere applica
tion of their norms as progress, and that they make comparisons for
those purposes. The illustration to which 1 should like to refer, is their
comparison of Somaliland under Italian administration with South West
Africa in the field of education, in the Reply, IV, pages 402-403. We
dealt with it in the Rejoinder, VI, pages 163-165. The Applicants in the
Reply, IV, page 402, referred to Somaliland as an example of:
"The promotion of the moral well-being and the social progress
of alithe inhabitants of a territory by implementing non-discrimina
tion in education ... "
The Applicants proceeded to say that during the years that Somaliland
was under trusteeship, there was an increase in the number of Somali
students in ltalian elementary schools. That is the progress of which
they were speaking-the increase in the number of Somali students in
Italian elementary schools. By 1957, they concluded,
"... of a total enrolment of 971 in the 'Italian' elementary schools,
405 were found to be idigenous inhabitants of Somaliland". (IV,
p. 403.)
Now, Mr. President, in the Rejoinder, VI, at page 164, we drew atten
tion to the fact that the only kind of development mentioned by the
Applicants was the presence of a few hundred Somali children in Italian,
Indlan and Pakistani schools. They were all called 1talian by the Appli
cants. We also pointed out that no evidence was advanced of, for example,
increased educational facilities, or increasing school-attendance figures.
We pointed out further that, in this territory which the Applicants chose
to quote to the Respondent as an example of progress, the percentage
of school attendance was appreciably lower at those times than in South
West Africa, and gave the figures in the Rejoinder, VI, at pages 164-
165; to which I would like to draw the Court's attention:
"In 1950-1951 there was a total enrolment of 7.479 in ali schools,
i.e., about 1.5 percent. of the school-age population. In 1954-1955,
... the total nwnber of school children stood at II,2I9 ... "
which was described by a representative of a country in the Trusteeship
Council as-
'''only sorne4 per cent. of the school-age children attend[ing] school'.
In 1956 it was noted by a member of the Council that 'Even from
the city population only 17 percent. of children of school age atten- ARGUME:>IT OF MR. DE VILLIERS
ded school'. In 1957 a United Nations' Visiting Mission noted 'that
the enrolment of children in schools was low, being 12,557 in 1956-
1957, while the target of the five-year plan had been 22,o8o'. In
1958-1959 total enrolment in ali schools in the country increased
to about 18,6oo." (VI, p. r65.)
Now, Mr. President, if the figure for 1954-1955, rr,219, respresented
sorne 4 per cent. of the school-age children attending school, then the
figure of 18,6oo must have represented something in the region of 7 per
cent. By comparison, we indicate what the position was in South West
Africa in the years in qucstion, and give that in the Counter-Memorial, III,
pages 444-445- In 1951, the number of Native children at school in South
West Africa actually numbcred 24,527, which meant that, on the same
basis of comparison as used for Somaliland, 30.3 per cent. of ali Native
children of school-going age were at school in that year. In rg6o, the
figure, on the same calculation, had increased to 39 per cent. of ail
Native children of school-going age in South West Africa.
There is a reference at page 444 to further increases after rg6o, which
I need not deal with now. We deal with the matter in the Rejoinder
and weshall deal in evidence with the further spectacular increases which
have been attained since those years. I merely wish to point ta the
comparison for the moment.
In Somaliland over the period 1951 to 1959 the increase was from r.s
to 7 percent. ln South West Africa the range was 30 ta approximately
40 percent.
Sa, Mr. President, it becomes quite clear: the concem of the Applicant
inthe application of this norm is not with progress in fact made-and,
may I say, when I make these comparisons, the intention is not ta cast
any reflection at all upon Authorities in other territories concemed. We
are not analysing the circumstances in those territories, I am not criti
cizing anybody. I am merely making comparisons with a view to in
dicating what the general standards in South West Africa are by way of
comparison with other comparable territories. For the moment the pur
pose of my comparison is purely this: to indicate that the Applicants'
concem is not with the total progress which is in fact being made in the
sphere of promotion to the utmost of material and moral well-being. It
is concemed only with one kind of progress, and that is progress in the
application of the very norm for which the Applicants are contending.
And that makes it perfectly clear, Mr. President, in our submission,
that the Applicants are not relying on an alternative interpretation of
what is to be found in Article 2 or, indeed, in any provision of the Man
date. They are relying on a norm not to be found in the Article at aU,
which could be incorporated into it, if at all, only by a process of impli
cation or by a process of amendment if the Mandatory should subsequent
ly have agreed to the introduction of such a norm into the Mandate.
Now, Mr. President, if the Applicants truly relied on interpretation
of the mandate instrument-interpretation as that term is usually
understood-in arder to bring them to the result of this norm for which
they were contending, then, as we pointed out in the Rejoinder, V, at
page 140, they would have to contend that Article 2 must be read as
containing, and as having always contained, a provisionlike the following:
"The mandatory shall, when exercising its full power of adminis
stration and legislation, give effect ta such standards or norms as SOUTH WEST AFRICA
may at the time of such exercise be generally applied by other
States."
That is the only basis upon which one can, by a process of interpretation,
or of ascertaining what this provision meant in rgzo, come to the con
clusion that there are now current norms and standards which are, as a
matter of law, to be applied to the circumstances of the particular case.
We said further in the Rejoinder, at the same page, the following:
"Inasmuch as no such qualification was included in the express terms
of the Mandate instrument, Applicants would have to contend that
it must be read into the Mandate as a necessary implication. It
is, however, unthinkable that the authors of the Mandate (which
included severa! Mandatories) would have decided upon, and that
the Mandatories would have consented to, the imposition of an
obligation of such uncertain content, posing 50 many difficulties of
application andgiving rise to the possibility of interminable dispute.
Since Applicants do not rely on such an implication, and no material
has been adduced to suggest the existence thereof, Respondent will
not devote any further consideration thereto."
Now, Mr. President, we find that in the oral presentation my learned
friends declined to state whether or not they contend for such an im
plication in the mandate instrument. In the verbatim record page 261,
suj:Jramy leamed friend quoted the statement from the Rejoinder which
1nave just read, and he said he found it unnecessary to comment further
on it. He confined himself to this contention, and 1 quote:
" ... that the legal dispute now presented to this honourable Court
is occasioned, inter alia,precisely by Respondent's failure to apply
currently accepted norms and standards toits administration of the
Territory".
Mr. President, this contention on the Applicants' part, even if it were
true, would hardly assist in showing how and why the Respondent has
become obliged in law to apply such norms and standards. The state
ment is merely to the effect that the trouble arises from our failure to
apply currently accepted nonns and standards, but it does not say why
we are obliged in law to apply those norms and standards. It also fails
to state, Mr. President, how this Court would have any jurisdiction on
the basis of the provisions which the Applicants invoke in this case,
namely Article 7 (2) of the Mandate; it does not state how this Court
could have any jurisdiction whatsoever to adjud1cate upon the applica
tion or non-application, or applicability or non-applicability, of current
and accepted norms and standards, other than by way of a process where
by those norms and standards can be said to form part and parce! of the
provisions of the Mandate.
So, Mr. President, what do we find on analysis? We find, firstly, that
the Applicants have not attempted to show that the alleged currently
accepted norms and standards ever formed part of the Mandate. They
do not allege that they were ever in any way agreed or consented to by
the Respondent: in fact, the Applicants admit that these norms were
not part of the Mandate in rg2o, and they do not allege that the Respon
dent ever agreed to them subsequently. 1 may perhaps just refer the
Court to the passage in the verbatim record where the Applicants make
this perfectly clear. It is at page 26supra: ARGUMENT OF MR. DE VILLIERS
"Respondent commences its discussion of the meaning of Article
2,paragraph 2,with a comment that the generally accepted standard
of non-discrimination or non-separation was not 'contained in Article
2 of the Mandate as at the date of its execution' ... Applicants, of
course, have never contended otherwise."
So that makes it as clear as can be. The obligation did not form part of
the l\landate in rgzo. Our learned friends do not contend that there was
any process of amendent of the Mandate; in other words, they do not
allege that Respondent ever agreed or consented to such an obligation.
Nevertheless, Mr. President, they seek to foist these currently accepted
norms and standards upon the Respondent as binding obligations, and
they say that this process-this conclusion-is to be arrived at by
interpreting Responaent's obligations in the light of such currently ac
cepted norms and standards. Mr. President, in my submission, the Ap
plicants could hardly have made it plainer that they are unashamedly
asking this Court to apply a process of judiciallegislation.
Mr. President, I merely wish to offer a few concluding remarks on the
portion of the argument 1addressed to the Court before the adjournment.
My submission is that the very technical process by which the Applicants
say that they arrive at their conclusion of a legal, currently accepted
norm of non-differentiation or non-separation-that very technical pro
cess shows that their contention is wholly unsound. It ignores the basic
fabric upon which the whole of international law and international juris
prudence is founded. Making it clear that they nowhere allege, or attempt
to prove, that Respondent has given its consent to an obligation of the
kind for which they contend, they, nevertheless, ask this Court to find
that that obligation is binding upon the Respondent. They ask the Court
to find, independently of the Respondent's consent and, indeed, in the
face of its protests, that the Respondent is obliged in the administration
ofSouth West Africa to apply this norm of non-discrimination and non
separation, to do away with any differentiation on the basis of race,
colour, ethnie grouping, tribe, and so forth. Even if the Respondent
should be entirely convinced that to do so would lead tomorrow to
chaotic results; that it might lead to the departure, say, of the whole
of the more developed white community; that it might lead to a resump
tion of faction and tribal fighting; that it might lead to a complete
collapse of the whole structure in South West Africa; that eventually it
might lead to chaotic conditions of misery for everybody involved: even
if the Respondent Government were to be convinced of all those things,
even then this obligation is to be imposed upon it by this Court as some
thing which it is to be coerced to fulfil. And why do the Applicants say
that? Not because the Respondent ever agreed that such an obligation is
to be binding upon it; not because it was to be found in the mandate
instrument initially; not because the Respondent subsequently agreed
by way of amendment of the mandate instrument that that obligation
is to be binding upon it. The Court is to find that such an obligation
exists merely because it refiects, in the Applicants' contention, currently
accepted norms and standards, and they say that the mandate instrument
is now to be interpreted in the light of those currently accepted norms
and standards. I repeat, Mr. President, that a clearer instance of asking
this Court to apply judiciallegislation can hardly be imagined. The Court
is, in effect, asked to act as a rubber stamp for the views of majorities in
political bodies.That is what it amounts to-to that, and nothing more, SOUTH WEST AFRICA
and calling it interpretation in the light of modern standards does not
help; a rose, in our submission, by any name still smells sweet.
I shall demonstrate in other ways also that this contention regarding
currently accepted norms and standards, and particularly this one ot
non-discrimination and non-separation, is entirely unfounded; but I
submit that the arguments I have already adduced up to this point are
in themselves sufficient to show that that is so, that the whole contention
of the Applicants in this regard is entirely without any substance in
law.
Before approaching the matter from the ether points of view, I should
liketo revert fust to an argument which the Applicants adduce as an
objection to the only basis upon which we contend that this adjudication
can be undertaken, namely the basis of determining the Respondent's
good or bad faith in this regard-of determining whether Respondent is
pursuing the authorized objective of promotion to the utmost or whether
it is in bad faith pursuing sorne other objective. The Applicants say, in
effect, in that regard that there is no practical way in which a court can
undertake such an enquiry, and they seek to distinguish between a sub
jective and an objective intent. It may, therefore be as weil, before we
proceed with the argument, to see whether we can obtain sorne clarity
as to what it is that the Applicants are driving at, and as to what the
true legal position is in that respect.
In the course of the Oral Proceedings, Mr. President, the Applicants
frequently asserted that Respondent's subjective intent is not relevant
in regard to an evaluation of its policies and practices for the purposes
of Article 2, paragraph 2, of the Mandate, and they said that when it
cornes to the concept of intent the only test to be applied is the one
according to which a man is presumed to intend the reasonably foresee
able consequences of his acts. \Ve shall give examples later of the manner
in which this submission was expressed in varions places by the Appli·
cants, but in arder to have a clear understanding of what the Applicants'
contention really is in this regard, it is necessary to note what extent the
Applicants have relied on Respondent's intent in the written pleadings.
We pointed out in the Counter-Memorial, Il, page 392, that Applicants
in their Memorials appear to have based their whole case regarding al
leged violation of Article 2,paragraph 2, of the Mandate on a contention
of bad faith on the part of the Respondent. Examples were given in our
Counter-Memorial of numerous instances in which the Applicants spoke
of delibera te and systematic conduct on the part of the Respondent. We
also pointed out that in their final conclusion the Applicants summarized
their allegations by stating the following:
"In its administration of ... South West Africa, the Union, as
Mandatory, has knowingly and deliberatdy violated the letter and
spirit of the second paragraph of Article 2 of the Mandate ... " (Il,
p. 393-)
Now after we had pointed this out in the Counter-i\Iemorial, Mr. President
-that that seemed to be the sole basis of the Applicants' case regarding
Article 2, paragraph 2, of the Mandate-the Applicants reacted in a
different way in the Reply. We find that they attempted to explain away
their use of these expressions-"deliberate and systematic" conduct,
"knowing and delibera te violat[ion] ofthe letter and spirit'' {Il, p. 393)and
soforth-and their explanation isthis (wefu:tditin the Reply, IV, at p. 257): ARGUMENT OF MR. DE VILLIERS
"Applicants' characterizations of Respondcnt's policies and ob
jectives by terms such as 'deliberately', 'knowingly', and the like,
clearlyare intended as inferences and conclusions reasonably fiowing
from Respondent's course of conduct, which is set forth explicitly
and fully in the Memorials. Such characterizations refiect a univer
sally accepted axiom that, in the absence of evidence to the contrary,
the predictable consequences of conduct are presumed to be in
tended."
Mr. President, in so far as the statement indicates that the use of these
terms, such as "deliberately", and so forth, "are intended as inferences
and conclusions reasonably fiowing from Respondent's course of con
duct, which is set forth explicitly and fully in thMemorials"~ than
respect the passage gives no difficulty at ali. Whenever a person's or a
body's intent is a relative consideration in any enquiry, that is a standard
method of arriving at the factual conclusion as to what that intent or
state of mind was~the process of drawing conclusions and inferences
from a course of conduct. Of course, what we say in that regard is that
when Applicants set out a course of conduct by their descriptions in the
Memorials, they painted only part of the picture, and that, before one
can draw any inferences in a sound and proper way, one has to consider
the whole field~t whhole picture; one has to fill in the gaps; one has
to put the facts presented by the Applicants into their proper perspec
tive; and only then is it possible to draw the relevant inferences. But,
Mr. President, that is a matter of applying the principle to the facts of
the particular case. The mere proposition that one can arrive at a con
clusion in regard to intent or statc of mind by inference from a course of
conduct-that is an unassailable statement. Mr. President, this state
ment, however, proceeds to say "Such characterizations refiect a uni
versally accepted axiom that, in the absence of evidence to the con
trary, the predictable consequences of conduct are presumed to be in
tended". That so-called "universally accepted axiom" is a matter to
which we should like to give further attention in this regard.
Here the "axiom" is stated by the Applicants with the qualification
"in the absence of evidence to the contrary". As we shaH observe, that
qualification in the course of time came to be omitted from the Applicants'
formulations. One would have expected, in the light of this formulation
which we find in the Reply, that Applicants would. in their Reply, indeed
have given very serions consideration to aU the evidence to the contrary
which we had brought in our Counter-Memorial. I quote our comment in
the Rejoinder V, in thls regard, Mr. President-apage 103.We said there
that we brought "evidence to the contrary" in the Counter-Memorial-
"... to demonstrate that its intent was not such as was sought to
be presumed-partly in that its conduct was different from what
was alleged, and partly in that a different perspective was cast
upon consequences, real and prospective, and their predictability,
by a fuller knowledge of background, setting and circwnstances".
It was for that purpose, we said, that we brought ali the evidence that
was set forth in the Counter-Memorial.
Now, Mr. President, instead of systematic consideration of this evi
dence to the contrary by the Applicants in their Reply or, indeed, in
their further presentation in this Court, one finds that in the Reply the
Applicants, almost in the same breath, say the following: SOUTH WEST AFRICA
"... so much of the evidence as is adduced by Respondent for the
purpose of demonstrating its 'good faith', or that it is 'actuated
by an intention ... other than one to promote the interests of the
inhabitants', would be immaterialeven if it did-as it does not-tend
to show such 'good faith', or the absence of such 'intention'." (IV,
p. z6o.)
So what do we fmd, 1\Ir.President? The Applicants begin by tellingus,
in the Reply, that they drew a certain inference and a certain conclusion
in regard to Respondent's intent, from Respondent's course of conduct,
as set forth in the Memorials. We said in the Counter-Memorial that
that inference was not a sound one. \Ve brought more evidence; we
brought evidence to the contrary, we expanded the whole picture and we
said that for that reason the inference was not a sound one. \Ve were not
indeed actuated by such an intentas was ascribed tous in the Memorials.
We were not actuated by bad faith in that sense.
Now the Applicants come and tell us that so much of the evidence as
we brought for the purpose of demonstrating our good faith, or that we
are actuated by an intention to promote the interests of the inhabitants,
would be immaterial.
So how is one to understand that. That can be understood, 1\Ir. Presi
dent, only on the basis that the Applicants now no longer-! say "now",
that means as from the Reply stage-rely on this allegation, or that they
no longer rely solely on the allegation of such an intent or bad faith on
the part of the Respondent. They rely on what they caU an "objective
criterion" for determination of a violation of Article 2, paragraph 2, of
the Mandate. The only objective criterion which they suggest is this
newly formulated legal norm of non-separation.
As I pointed out before, Mr. President, if such a norm indeed existed
and govemed the Respondent's obligations the Respondent's intent
or good faith would be immaterial. That is so. Then it would be merely
a matter of determining whether Respondent's conduct and policies, in
fact, involve differentiationor not. Indeed, as the norm was formulated in
the Reply, the mere fact of the existence of any differentiation of that
kind would have meant a violation of the Mandate, quite independently
of good or bad faith, of whether thcre is an objective to promote material
and moral well-being, or of whether the objective is something else.
However, Mr. President, the question arises: if the Applicants really
intend to found their case on the existence of such a norm, and such alone,
why does the question of intent enter into the Applicants' formulation
at ali? Why do they persist in making allegations in regard to intent?
Where does it fit into the legal picture? If the norm applies, then the
intent becomes irrelevant. When it is said to me, that in applying your
policies in respect of development and promotion of material and moral
well-being, you are not to discriminate on a racial, or a colour, or a tribal,
or an ethnie group basis and I do discriminate, then that is sufficient.
The fact that I have discriminated in contravention of the norm applying
to my conduct in itself establishes a violation. \Vhy then further allega
tions pertaining to intent or design?
We analysed this conundrum, Mr. President, to the best of our ability
in our Rejoinder, V, at pages ro6-107. We came to the conclusion that,
although the Applicants did not expressly say so, they apparently still
relied, inthe alternative, upon an allegation of intent or bad faith as
being a course of action in itself-as being in itself a basis upon which ARGUMENT OF :MR. DE VILLIERS
they could establish a violation of Respondent's obligation under Article
2, paragraph 2,of the Mandate. That was to be seen, although they did
not say so, as an alternative to their reliance upon their legal norm. be
cause we could not understand their reference to intent upon any ether
basis.
We dealt in our Reply with the Applicants' case on the understanding
that it rcsted upon these two bases-firstly, on the norm and then,
secondly, in the alternative on-
''... sorne basis ... which requires proof of the factual allegation
that Respondent's policies are actuated by a motive ether than one
to promote the interests of the inhabitants of the Territory".
(V, p. 108.)
Now we come to the next stage, i.e., these Oral Proceedings, and here
the Applicants emphatically tell us their case does not rest at ail, or in
any respect, on the Respondent's bad faith or intent. I read from what
they said according to the verbatim record at page n6, supra:
"... the fact undisputedly is that the Applicants do not make
an issue, have not sought to make an issue, and do not intend to
make an issue of good or bad· faith in the premises".
Mr. President, strange as that may seem, if the Applicants had left the
matter there, we would have known with reasonable certainty what the
case is that we now have to meet. \Vc would have known, notwithstand
ing ali the ambiguity that we found in the pleadings and the apparent
shifting of ground involved, that the Applicants now rely solely on the
so-called norm of non-differentiation, if we may call it that for short,
against which Respondent's conduct should be measured.
But we find, l\Ir. President, that again in Applicants' formulation of
their case cluring these Oral Proceedings they revert to this question
of Rcspondent's intent which, they say, is to be determined by applica
tion of a so-called universally accepted principle that an individual or
entity is legally presumed to intend the reasonably foreseeable con
sequences of his actions.
How, and on what basis of legal relevance this is propounded for the
Court's consideration remains, to a large extent, a mystery.
We fmd in the verbatim record at page 121, supra, the following
statement:
"The only sense in which a subjective test of good faith could be
relevant to the motives of individuals who, severally and collective!y,
and from time to time, form the executive, legislative and judicial
branches of any government, would be by application of the univer
sally accepted principle that an individual or an entity is legally
presumed to intend the reasonably foreseeable consequences of his,
or its,actions."
\Ve have the two concepts there: the sense in which a subjective
test of good faith could be relevant, and the determination thereof by
the application of the universally accepted principle, which 1 have read.
Mr. President, as I have always understood this so-called universally
accepted principle, it is an aid in the determination, the factual deter
mination, of a person's, or a body's, intent, or state of mind, or good or
bad faith, where that intent, or state of mind, or good or bad faith, is
a legally relevant consideration. But the fact that one applies a method SOUTH WEST AFRICA
of that kind as an aid in factual enquiry, that can neveranswer a question
as to the legal relevance of that particular concept in a particular case.
To illustrate: where a person is charged with murder intent to kiU is
a necessary element in the crime which is to be established on the part
of the prosecution. The prosecution, for the purposes of establishing
intent, avails itself of a process of inference from circumstantial and
surrounding evidence. That is a method by which it arrives at proof of
intent and it avails itself, as far as may be relevant, of the application of
this principle to which my learned friends refer. 1 shall deal later with
the exact method in which the principle is to be applied.
But, Mr. President, the point 1 am making for the moment is this,
that the reason why that process is adopted is that the law, in its formu
lation of the concept of the crime of murder, makes intent a relevant
consideration. That is an aspect which is not touched on in any way by
the Applicants when they tell us that they now rely on this objectively
applicable norm of non-differentiation and yet they say that, in sorne
way or another, intent, in the sense of the application of this universally
accepted principle, is still a relevant consideration. We do not know,
legally, why.
1 read from a formulation in the verbatim record at page 203, supra.
"The Applicants use, and we submit, appropriately use, the concept
of 'intent' in a legal sense but not as a subjective motivation, not
as mens rea, not to determine whether Respondent has a proper or
lofty or illicit purpose in its actions, but in the lawyer's sense of
the use of the ward which applies the test of an objective deter
mination, judicial or administrative, in respect of the conduct of
groups, individuals, or governments, and which rests upon the univer
sally accepted principle that an individual, or an entity, is presumed
to intend the foreseeable and necessary consequences of his, or its,
actions."
Again, Mr. President, no answer is given to the question 1 have men
tioned. We simply hear of a "lawyer's sense of the use of the ward"
intent "which applies the test of an objective determination".
ln the verbatim record at page 204, supra, we fmd this statement in
the argument of my learned friend:
"... references by the Applicants to Respondent's 'intent' or
purpose do not refer to a subjective motivation of good or bad faith,
but to an objectively determinable inference, which may be drawn
from conduct, on the basis of the universally applicable principle
that a persan or an entity is presumed to intend the foreseeable
and necessary consequences of his or its actions."
Now, Mr. President, apart from the fact that we are still completely
in the clark as to why it is said that intent, even in this particular sense
ascribed to the term, is a relevant consideration, a feature ofthese formu
lations isthat they drop the qualification which we initially found in the
Reply-the qualification of "in the absence of evidence to the contrary".
We find further that the Applicants in this regard speak of a legal
presumption; an individual or an entity is legally presumed to intend the
consequences of his actions.
Why do we now find, Mr. President, this reliance upon the so-called
presumption as being apparently something absolute, something irre- ARGUMENT OF MR. DE VILLIERS
buttable? One can only surmise that the Applicants have realized the
inconsistency of the attitude which they took up in the Reply where they,
on the one band, as I have pointed out, admitted that evidence to the
contrary could destroy any inference raised by the application of the
foreseeable consequences rule; and, on the other hand, they categori
caliy stated that ail evidence brought by Respondent to prove the
contrary, namely good faith on its part, bas to be regarded as being
entirely irrelevant.
That inconsistent attitude they adopted in the Reply. It seems that
they are trying to get away from it now, and they attempt to do so
in a manner which stili cannat admit the relevancy of the evidence which
we tendered in our Counter-Memorial and again in our Rejoinder. They
do so on a basis which would maintain their submission of irrelevancy
of that evidence, and they now seem to tend in the direction of saying
that this presumption is not only a legal presumption but also a con
clusive or irrebuttable presumption.
It would seem, therefore, Mr. President, that the basic difference
between the Parties in this regard, i.e., in regard to this question of
intent, is the following. According to the Applicants the Respondent
must be legally, and apparently conclusively, deemed to have intended
the consequences of its acts if such acts were reasonably foreseeable,
no matter what Respondent's actual intent might have been. That
seems to be the distinction which they are trying to draw between
a so-called subjective intent and an objective intent in the lawyer's
sense of the term.
We, on the other band, Mr. President, while we do not dispute that
so-called objective criteria may be applied in order to assist in ascer
taining intent, contend that in the final analysis regard should be had
to ali relevant evidence, in order to determine Respondent's actual
intent, in so far as that intent is a relevant consideration. And we submit
that the only basis for adjudication is indeed to determine that intent
relative to the question of the objective, or the purpose, of Respondent's
policies and legislative and administrative actions.
We submit, Mr. President, that this suggested distinction between
a subjective intent and an objective intent is a complete fallacy. There
is only one concept known as intent, or state of mind, or good or bad
faith, ali being various facets of the same concept of intent, and I shall,
therefore, use the word "intent" as signifying all those. Intent is a state
of mind; it is a judicially determina ble fact; it is a fact which can be
determined by a factual inquiry such as is indulged in for the purposes of
determining any fact so far as it may be relevant in legal proceedings.
But there are various ways and means, various techniques, whereby one
can arrive at a conclusion as to intent.
I suppose it is correct to say that seen from the point of view of the
persan whose state of mind is in issue, his intent can be said to be a
subjective concept. When we say that, we have in mind this type of
distinction. A person's conduct in ordinary law can be tested against
objective criteria, such as,what a reasonable man would have done in
certain circumstances. When his conduct falls short of the objectively
prescribed criteria, prescribed by law, then he can be said to be guilty
of negligence. Therefore, in that sense one speaks of culpa--of a state
of mind on the part of a persan which falls short of an objective standard.
But when for certain purposes it is not sufficient to establish negligence SOUTH WEST AFRICA
on the part of a person, when it is necessary to establish an intent, then
it is not sufficient to enquire, what would a reasonable person have done
in the circumstances? lt is not sufficient to apply an objective test. The
ultimate fact to be determined is the subjective one-what was sub
jectively the state of mind of that person? Did he or did he not have the
particular required intent? And that is a distinction which is very often
drawn in legal terminology in this regard between something subjective
and something objective. One can draw it in a different way also. One
can say that there are varions ways of proving a person's intent. One way
is that to which I have referred, namely by drawing inferences from a
course of conduct seen in the light of all surrounding circumstances.
That is by a process of evaluating what basically amounts to circum
stantial evidence. One can also determine a person's intent from what
he has said, from what he may have said contemporaneously with his
actions, before his actions, subsequent to his actions.
It is another matter, of course, as to what weight should be assigned
to the probative value of the particular statements made in particular
circumstances. A persan can go into a witness box and say that when he
did a certain thing or when he said a certain thing his intent was such
and such and not so and so. Again, one can possibly use the distinction
there between an objective method of arriving at a conclusion and the
subjective nature of the evidence given by a person to the effect that
such and such was his intent, oris now his intent, or wiH be his intent,
as the case may be.
But, Mr. President, that distinction between subjective and objective
relates not to the concept itself. The concept of intent is one and indi
visible:it is astate of mind. And there is in law no distinction whatsoever
between a so-called subjective intent and an objective intent.
In so far, Mr. President, as the Applicants now wish to assign con
clusive effect to this so-called universally accepted principle, that a
person is presumed to intend the foreseeable and necessary consequences
of his actions, we say that that contention rests on a complete fallacy.
The maxim, in so far as it is referred to in legal systems at all, is merely
an aid in a factual inquiry. lt is nothing more: it has no more value or
weight than that of a factual presumption. Very often cornrnentators
have even said that presumption is not the right word to use because one
should rather speak in terms of a generality, or a general probability,
a factor which operates as one of those in a factual inquiry, but as being
by no means the only factor to the exclusion of others.
We find, firstly, Mr. President, that in most legal systems-those on
the Continent of Europe, for instance-there is no reference, as far as we
can find, to the application of a principle of this nature. They do not
work with this concept; they do not find it necessary. They do not work
with the concept that a man may be presumed to have intended the
foreseeable and reasonable consequences of his act.
As far as we know, that is a formulation as an aid in a factual inquiry
which is applied only in the English law-the English practice-and in
related systems which apply English law and practice in that regard.
Secondly, Mr. President, we find that even in those systems of the
latter kind, in which the lawyers expressly employ or apply this concept,
there is no question whatsoever of the presumption being either a legal
one or an irrebuttable one. As I have said, the maxim imports nothing
higher than a rebuttable, factual presumption, or generalization, or ARGUMENT OF MR. DE VILLIERS
likelihood. That generalization is to the effect that a man may usually
be regarded to have intended the natural and probable consequences of
hisact, but that there may be evidence or other indications leading to a
contrary conclusion.
We may imagine a person standing in a building on the side of the
street; he looks into a window on the opposite side of the street on the
tenth storey of that particular building; he sees somebody standing in
the window; he sees sornebody else pushing against th..:1.p terson, and he
sees that person falling through the window to his death on the street
below. Now surely, Mr. President, on application of this maxim as
something irrebuttable one would have to say that the person who did
the pushing must be presumed to have intended the natural and the
legal consequences of his action, and therefore he must be guilty of
murder. Such an application of the maxim would mean that it is not
open to that person to come into court and to say: "what was seen by
this particular witness was only half of the tru th; it was only half of the
story. What really happened was that we were playing in the room and
it was just by accident that I pushed against the other man and that he
fell through the window. There was no intent whatsoever on my part
either to push him through the window or to send him to his death."
If this maxim were to be applied as an absolute legal, irrebuttable
presumption, then it would be impossible for a man to come into court
and to give evidence to that effect, or even for sorne other person to be
called out of that room to say "I was there, I was a witness, I saw it all
and that is how it happened". That is why Mr. President, that in
regard to the English law we find comment. 1 will give the Court sorne
references to authorities. Glanville Williams, Criminal Law, 1957,
wrote as follows at page 77:
"It is often said that a man is presumed to intend the natural
consequences of his acts. This maxim, though many judges have
been fond of it, contains a serious threat to any rational theory of
intention. It is not truc in fact·that a man necessarily intends the
natural consequences of his acts: and it is not truc in law that he
is compellingly presumed to do so."
The next quotation is from page 78:
"When a defendant is held guilty of causing damage by negli
gence, this is because a reasonable man would have foreseen the
damage. Now if a reasonable man would have foreseen it, it must
be the probable consequence of the defendant's conduct. If it is the
probable consequence of his conduct, the defendant, according to
the maxim is presumed to have intended it. Thus, all these cases of
negligent conduct are turned into cases of intentional conduct.
Such a mangling of the concept of intention cannot be admitted."
The next passage cornes at page Sr:
"It is now generally agreed, in conformity with this opinion, that
the maxim does not represent a fixed principle of law, and that
there is no equiparation between probability and intent. This was
pointed out by Stephen, although his words for sorne time had
little effect upon the language used by judges. Recently Denning,
L.J., said: 'There is no "must" aboutit; it is only may. Presump
tion of intention is not a proposition of law but a proposition of
ordinary good sense.' " SOUTH WEST AFRICA
A further quotation, Mr. President, at page 705, from the same author;
"We may now revert to the supposed rule that a man is taken to
intend the probable consequences of his acts. It has been shown
that this maxim has been reduced from the status of a 'must' to
that of a 'may' ... Formerly juries were instructed in terms of the
maxim as though it created a presumption of law, rebuttable or
even irrebuttablc; but it is now clear since cases like Meade ... and
Woolmington ... that the maxim does not transfer the persuasive
burden in respect of mens rea to the accused. Although both those
cases turned on homicide, the proposition is a general one. For
instance, on a charge of shooting with intent to prevent arrest,
where the accused raises the defence of accident, it is for the Crown
to prove the intent. As Lord Goddard, C.J., said in Steane:
'No doubt, if the prosecution prove an act the natural con
sequence of which would be a certain result and no evidence or
explanation is given, then a jury may, on a proper direction, find
that the prisoner is guilty of doing the act with the intent alleged,
but if on the totality of the evidence there is room for more than
one view as to the intent of the prisoner, the jury should be
directed that it is for the prosecution to prove the intent to the
jury's satisfaction.' Thus the rule turns out to be merely an
evidential presurnption, a common-sense inference that may be
drawn from circumstances. In fact the field of inference is wider
than the maxim would indicate."
On the American law we find this comment by Professor Richard
M. \Vooner. It is a translation from the German {our own translation),
from page 109 of Mezger-Schônke Das ausliindische Strafrecht der Gegen
warl, Volume IV.
"In the case of Erfolgsdeliktes [that is, 1\fr. President, in the case
of crimes constituted only when an act has had certain consequences
and not by the act itself. For instance, a murder in contrast to the
pointing of a fire-arm.] it is inferred, until the contrary is shown,
that criminal intent includes the foreseeing of consequences of con
duct which experience shows are apt to occur."
The author then proceeds to quote (at p. 109) the following passage in
the decision in the State v. Phi/er, 1884, go N.C. 721:
"The legal rules are based upon the presumption that everbody
intends the natural, that is regularly occurring or probable conse
quences of his conduct: the operation of this presumption, however,
does not, in tact, involve more than prima facie proof."
The author proceeds to point out that this presumption is one of fact
and not of law.
Now, I pointed out, Mr. President, that in continental law no use is
made of this formulation at aiL In order to illustrate the more straight
forward approach to the problem of intent on the continent, it may be
sufficient to refer to Van Bemmelen and Van Haltum, Ha1td en Leerboek
van het Nederlandse Strafrecht (r953L page 264- The authors there
distinguish between two cases, one in which the "doer" or "actor" in
fact realized the possibility that his act would result in certain conse
quences; and the second, in which this possibility was not so realized.
In other words, the difference between the intent which the man actually ARGUMENT OF MR. DE VILLIERS
subjectively had~the contemplation which was in his mind in fact~
and the contemplation which a reasonable person may or may not have
had in the circumstances. Distinguishing between the case where the
actor in fact realized the possibility that his act would result in certain
consequences and that where he did not realize that, the authors say~
"In the last case one can never speak of intentIf the circumstan
ces are such that the non-realization of the possibility is tantamowü
to gross remissness, then it is a case of negligence." (P. 264.)
Again it isour own translation.
The distinction drawn is this~ itis merely a question that the man
ought to have realized that his acts would have certain consequences
but did not, in fact, realize it, then he could be guilty of negligence but
he could not be said to have had the intent to bring about the consequen
ces of his act. That intent he can only be said to have had if he, in fact,
had such a contemplation.
So, Mr. President, at the very most the rule that a man is presumed
to intend the reasonable consequences of his act, is a rule of evidence,
not a rule of substance of law. The rule is applied merely to raise a prima
facie presumption of intcnt-intent seen as a single and indivisible con
cept.
But while the Applicants avail themselves of this rule in their effort
to show that Respondent acted intentionally or deliberately, they deny
that the Respondent is entitled, to adduce evidence-if such evidence
should be necessary r~tuo any inference raised by the application of
the rule. In other words, they elevate a rebuttable, factual presumption
to an irrebuttable legal presumption and they do so also to create a pe
culiarbrand of intent, which they say is "the lawyer's sense of the use of
the word" as distinct from "intent" apparently in the ordinary sense of
the word. We submit Mr. President, that there is no justification for this
distinction between two so-called concepts of "intent" or for the process
of elevating this rebuttable, factual presumptionto an irrebuttable, legal
presumption.
Now, we find, Mr. President, that the Applicants protest against this
approach on our part by saying that if Respondent's intent were to be
deterrnined otherwise than by applying the legal presumption advocated
by them, they would be at a Ioss to determine what evidence to adduce.
Wefind thatstated in the verbatirn record at page121,supra, where they
say-
"The Applicants submit that the question at issue is not the
subjective motivation of a particular government, or of a group
within a government, or of a single official, or of a single department
of a government. The only sense in which a subjective test of good
1aith could be relevant to the motives of individuals who, severally
and collectively, and from tirne to time, from the executive, legisla
tiveand judicial branches of any government, would be by applica
tion of the universally accepted principle that an individual or an
entity is legally presumed to intend the reasonably foreseeable con
sequences of his,or its, actions."
They go on to say-
"Any other measure of Respondent's obligations under Article 2
of the Mandate, in terms of good or bad faith, would necessarily SOUTH WEST AFRICA
confront this honourable Court, or an administrative supervisory
authority, with the task of judging the Mandatory's conscience,
rather than its conduct. If such a legal yardstick were to be the
measure of Respondent's obligations under Article 2, paragraph 2,
of the Mandate, the Applicants themselves would be at a loss to de
termine what manner of evidence of breach would be relevant, save
perhaps explicit and unrepudiated admissions by Respondent's
highest officiais, that their policies were, indeed, directed toward an
illicit purpose."
i\Ir.President, we submit, with the greatest respect, that this cornes
strangely from an experienced lawyer. Surely alllawyers know that there
are various techniques applicable in such an enquiry. lt is essentially
an enquiry of fact, and wherever the question of intent on the part of a
person or a body or a colLectionof persons jointly or collectively forming
a body, is in issue and is Iegally relevant, then the Court must embark
upon that enquiry as best it can, and both Parties know what types of
evidence would be relevant in order to establish that intent.
It is always permissible, and indeed desirable, to revert to proof by
circumstantial evidence, that is, by showing ail the circumstances of
the case, because statements may be made by a particular persan or by
a particular body, and a question can arise: is that man speaking the
truth? Is that body speaking the truth? Is the intent which they had in
this particular case actually that which they profess to have had or are
they pretending something different from what they really intended?
In order to test a proposition of that kind it is always necessary,
of course, to have regard to aU surrounding circumstances and to draw
inferences from the surrounding circumstances on the question of what
the relevant intent must be taken to have been. But that is a far cry
from indulging in an artificial enquiry; from saying that we look only at
part of the picture; that weapply only the maxim that a man is presumed
to have intended the natural and probable consequences of his actions and
thereby we arrive at an irrebuttable result. We look at all the surrounding
circumstances. If it is proved in a particular case Mr. President, that the
accused person stood before the deceased-let us say in a murder case
with a huge stone in his hands, that he lifted the stone and he threw it
onto the head of the deceased. If it is proved that he was in his sound
and sober senses, that there was nothing wrong 'vith him, that there was
no reason why he could not foresee the natural and probable consequences
of his action-if he should then come and tell the court that he, in fact,
did not foresee that that stone was going to kill the deceased he will
probably be disbelieved by the court, or by the jury whichever it might
be. In ordinary common sense, the court would come to the conclusion
that such evidence could not be believed. Therefore, it is always necessary
to test whatever a persan might say as to his intent, also in the light of
surrounding circumstances and the inferences which might flow from
those surrounding circumstances. If it could be proved by evidence that
this persan, to whom 1 referred in my example, was walking in his sleep,
then, of course, a different result would follow. But that would then be
one of surrounding circumstances to take into account, in arder to decide
whether he could or could not have been speaking the truth. Evidence
would be relevant to prove whether he had been walking in his sleep
previously; whether similar things had happened to hlm previously
in order to test his veracity or his credibility in this particular respect. ARGUMENT OF MR. DE VILLIERS 6sr
But the enquiry, as a whole, would be one of fact and there is no reason
-no justification whatsoever-for saying that it is one in which one
party or the other might not know what type of evidence to adduce in
order to prove any proposition relative to intent.
Therefore, Mr. President, in our submission the Court, in so far as it
regards intentas a relevant consideration, will determine the question
of Respondent's intent by having regard to ali relevant evidence.lt will
have regard to the weight to be assîgned to circumstances; to the pos
sible inferences to be drawn from circumstances. It will have regard,
where necessary and where relevant, to statements made b;[ officiais,
by policy makers, by politicalleaders of the Respondent. It w1llhave to
decide in the light of ail the circumstances what particular weight and
credibility should be assigned to a particular statement or to a particu
lar pieceof circumstantial evidence and in the end it will apply the funda
mental principle that, if one reasons by inference and if one is to come to
a conclusion by inference, the inference to be arrived at must be a neces
sary inference in the sense that it is consistent with all the proved rele
vant facts, and that the proved relevant facts exclude ali other reasonable
possibilities.
It seems, Mr. President, if we revert to the Applicants' pleadings,
that they themselves are aware of the fact that intent can be proved
in various ways. They have, indeed, apart from seeking to draw inferences
from facts set out in the pleadings, also referred in various places to
statements by Respondent's officiais, and they have quitc obviously
quoted those statements for the purpose of showing what was the under
lying intent, and how Respondent's policies and practices were to be
interpreted as far as their objectives and the underlying intent were
concerned. We find, for instance, in the Memorials, I, at page 157, a re
ference to statements made by the South African Minister of Bantu
Education in May rg6o, and Applicants themselves say they do this for
the purpose of giving:
"A grim insight into the quality of education offered for 'Natives'
in the Bantu institutions, as weil as the spirit in which it is
offered, ... "
Mr. President, quite obviously where they seek to establish the quality
of education offered-the spirit in which it is offered-they try to do so
through the medium of a particular statement made by a particular
official. Again, in the Reply the Applicants cite severa! passages from
different speeches by the Respondent's Prime Minister, on pages 263 (IV)
and following, and obviously their purpose again is to illustrate what
Respondent intends to achieve, in the Applicants' submission, with a
policy of separate development. So, the intent which the Applicants
seek to derive from these passages must, in sorne way, in their view be
relevant, but, on the other hand, Mr. President, factual information
tendered by the Respondent so asto place those extracts in their proper
perspective and against their proper background so as to assist in the
interpretation of those extracts from speeches, and in order to show that
they, in fact, reveal a different intent from that contended for by the
Applicants, are treated by them as evidence which is irrelevant. Such
information which is tendered towards showing Respondent's good faith,
is regarded under Applicants' general formula as entirely irrelevant.
The most striking example, Mr. President, of the Applicants' realiza- SOUTH WEST AFRICA
tion of the fact that intent can be proved by direct evidence of a person's
state of mind is to be found in their treatment of Respondent's alleged
violation of the obligation to respect the international status of the Terri
tory. The Court will recall that the Memorials, 1, page 186, have a por
tion under the heading "The avowed intentions of the Union", and under
that heading we fmd that the Applicants cited extensively from speeches
made by Respondent's Prime Minister at that time, in arder to prove
that it was the Respondent's intention to incorporate the Territory into
South Africa. In explaining their introduction of this exposition, the
Applicants said in the Memorials at page 186:
"Piece-meai incorporation amounting to de facto annexation is
both insidious and elusive. Motive is an important indicator since
it sheds light upon the significance of individual actions, which
might otherwise seem ambiguous",
and they cite thcse statements in order to show the intent or the motives
for which they contend.
Having dealt with Respondent's so-called avowed intentions, the Ap
plicants then proceeded to set out acts of Respondent which were alleged
to be inconsistent with the international status of the Territory. In the
introduction of this topic, the Applicants said the following in the Memo
rials, at 1, page 189:
"The intent of the Union, as described above, is manifest not
only from official statements, but it has been given practical effect
by, and explains, Union action."
[Public hearing of ZJ April I965]
Mr. President and honourablellfembers, before theadjoumment yester
day we dealt with the Applicants' contentions regarding the concept of
intent in so far as that may be relevant to their case on the alleged
violation of Article 2, paragraph 2,of the Mandate: intent, that is, on the
Respondent's part, as regards its policies.
To round off that argument I may just briefiy state the conclusions
at which we arrived.
Firstly, we showed, with submission, Mr. President, that Applicants do
not explain on what legal basis intent is relevant at aUto their contention,
now that their contention is said to rest entirely on the modern norms
and standards which are advanced by them.
Secondly, we showed that the distinction which they seek to draw be
tween so-called objective and subjective intent is without substance, and
that there is only one concept of intent, as known to the lawyer and to
the layman.
Thirdly, we showed, i\Ir. President, with submission, that the so-called
presumption that a man intends the natural and probable consequences
of hisacts is neither an exclusiveor an irrebuttable method of ascertaining
jutent, but that it is merely a generalization of a rebuttable method of
proof which can, in a fit case, provide sorne aïd in the total enquiry asto
mtent.
Fourthly, we saw that in such a total enquiry as to intent various
techniques can be employed and combined and that these can include
consideration of direct evidence and statements in regard to intent, as
weil as the drawing of inferences from conduct and circumstances. We ARGUMENT OF MR. DE VILLIERS
saw, Mr. President, that it is only in this last respect that this generaliza
tion that a man intends the natural and probable consequences of his
acts, plays or can play a limited role in a fit case.
We demonstrated further, Mr. President, from the Applicants' own
plead.ings, that they themselves realize that intent can be proved in vari
ons ways and, amongst others, through statements of officiais and office
bearers of the body whose intent is in issue. By way of illustration we
referred to various statements quoted in the Applicants' pleadings for
this purpose, not only in regard to the charge conceming well-being and
progress under Article 2,paragraph 2,of the Mandate, but also in regard
to the charge of alleged violation of the international status of the Terri
tory, which is brought under Article 2, paragraph I, of the Mandate. We
referred, merely by way of example, to the manner in which intent was
treated also in relation to that particular subject.
We shall pursue that aspect of the matter later and demonstrate that,
in regard to that charge-the charge of violation of the international
status of the Terri tory-the Applicants have, also, since the commence
ment of the proceedings considerably changed their attitude about the
intent aspect. For the moment 1 do not wish to pursue that point. 1shall
come to that when we deal with the other portion of the case, and with
that particular charge.
For the moment 1 wish to deal only with the charge under paragraph
2, of Article 2, and to revert to the legal basis of the Applicants' case
in that regard, i.e., with the legal basis thereof as they formulate it now.
On analysis it seems, Mr. President, that the Applicants have clearly
come to realize the difficulties involved in basing their case entirely upon
the allegations of malicious intent and deliberate oppression on Respon
dent's part as formulated originally in the Memorials. In the light of our
exposition of the full facts in the Counter-Memorial, they have apparently
come to realize that their allegations cannat bear examination when the
full circle of facts is fully analysed and considered and when all relevant
facts are brought into the picture, and consequently they attempt to
avoid this difficulty.
They have been doing it as from the Reply stage and they have at
tempted to do so by two expedients. Firstly, they have been relying on
a norm, allegedly capable of exact and objective application, that is,
without consideration of the question of intent at all. Secondly, they
have sought to reduce the ambit of the enquiry in regard to intent by
Iimiting it through the application of this artificially defined objective test,
covered by the so-called presumption that a man intends the natural and
probable consequences of his acts.
We shaH, ~Ir President, demonstrate, with submission, that both these
attempted remedies for the difficulties in which the Applicants found
themselves, have turned out to be as defective as their original approach.
1 revert to this norm, or norms and standards on which the Applicants
have sought to place reliance as from the Reply stage with certain varia
tions added thereto, to which I shaH refer, in the Oral Proceedings.
We have sorne difficulty here in the sense that the Applicants, on the
one hand, speak in the singular of a "generally accepted international
human rights legal norm of non-discrimination or non-separation on the
basis of membership of a group, class or race" (p. 260, supra): that is
what we have, on the one hand-the concept of such a norm expressed
in the singular. Then, on the other hand, we find that the Applicants SOUTH WEST AFRICA
speak also in the plural of legal norms and standards, on which they say
they rely. I must say that tome the distinction between the two, as ad
vanced by the Applicants, is far from clear.
It would seem, from certain expressions used by the Applicants and
certain explanations given by them, that legal norms are, according to
their contention, the product of standards, i.e., that they are distilled
or derived from, amongst others, "political, social and scientific sources
and standards". That is a formulation we find in the verbatim record at
page 259, supra.
But then we still have legal norms in the plural, and this single norm
of non-discrimination or non-separation appears to be a common de
nominator of undefined norms-a common minimum norm which is said
to be found in all the relevant legal norms-and which appears to be the
ultimate ground upon which the Applicants rely in their reference to
norms and standards.
That seems to be one possible explanation of the reference, on the one
hand, to norms and standards in the plural and, on the other hand, to
this norm in the singular, which, for convenience I shall refer to as a norm
of non-differentiation.
On the other hand, Mr. President, from themannerin whichApplicants'
case is presented, i.e.,he reference at times to this norm in the singular,
and the reliance upon it in regard to the facts of the case, and, at other
times, a reliancc in general on undefined norms and standards, generally
applicable in modem circumstances-that sorne reliance is placed on
these undefinited norms and standards, as distinct from the reliance
placed upon the norm (in the singular) of non-differentiation.
It may be that my learned friend could clear that up for us, and ex
plain whethcr there are two alternatives involved in his case in this re
spect, or whether the one is supplementary to the other, or whether there
is simply a distillation from the norms and standards (in the plural)
to this one singlenorm-whether it is all P:art and parce! of the same case.
It is not clear to me yet: possibly it w11lbe cleared up in due course.
In the meantime we shall deal with the matter on the assumption that
we have two cases, or two aspects of a case, to meet, or possibly two
contentions in the alternative--one resting on this single norm of non
differentiationand the other resting, in addition, on norms and standards,
undefined, in the plural.
1 proceed first, Mr. President, to consider this so-called legal norm of
non-discrimination. I shall refer to its history and I will demonstrate,
with submission, that, notwithstanding the Applicants' protestations,
this norm was first born halfway through the pleadings stage of these
proceedings. It came as an afterthought at that stage, designed to meet a
particular difficulty with which the Applicants found themselves con
fronted.
VveshaH show further, Mr. President, that as a result of the answer
which we gave in our Rejoinder to the Applicants' case based on that
norm, they have now, in these Oral Proceedings, introduced further
changes in their case in that respect. They have been forced to qualify
the content of this alleged norm in such a way as either virtually to
destroy it, orto make a new case again-a new case which has not been
properly canvassed in regard toits factual aspects through the pleadings.
I shaH explain later, in more detail, what I mean in that regard.
I wish to start with the Applicants' Memorials and point out in what ARGUME:\'T OF MR. DE VILLIERS 6ss
way they stated the legal basis of their case in regard to Article 2, para
graph 2, at that stage. Right at the outset of their treatment of this
subject, the Applicants admitted in the Memorials, I, at page 104, that
theywere-
"... aware that differences of opinion could arise asto close or doubt
ful issues concerning the application of the terms of Article 22 of
the Covcnant and Article 2 of the Mandate".
But they proceeded to contend:
"In the present case, however, the issues of fact and law, and of
the application of law to fact, do not involve conjecture. The vio
lation of the duty to promote 'material and moral well-being and
social progress' is beyond argument." (1, p. 104.)
Now the question arises, how did the Applicants proceed? How did
they propose to proceed beyond the conjectural sphere, where differences
of opinion could arise, to the stage of absolute certainty which did not
involve conjecture, and brought them to a result where the violation of
duty was beyond argument? In other words, Mr. President, what test
or tests did they at that stage suggest should be applied in order to arrive
at that conclusion? We find part of the answer to the question given in
the Memorials immediately, following on these passages, at pages I04-
I05 (1) (I say part of it because there is anotherpartwhich I will mention
later). The passage reads:
"Any doubt concerning the interpretation and application of
Article 2 of the Mandate and Article 22 of the Covenant to this case
is resolved in the light of currently accepted standards as reflected
in Chapt ers XI, XII and XIII of the Charter of the United Nations.
The Union, by becoming a member of the United Nations, not only
must have accepted the validity of the prindples contained in the
Charter, but by the act of membership, undertook to comply there
with."
The Court will notice that there is no reference here to a particula~
norm; there is a reference to resolving the doubts concerning interpre
tation and application of Article 2 in the light of currently accepted
standards.
Applicants then proceeded-no doubt because they realized that they
were charging Respondent with a breach of the Mandate and not with a
violation of any of the obligations of the Charter-as follows in the Me
morials at page 105:
"The above cited Articles of the United Nations Charter are in
pari materia with Article 2 of the Mandate and Article 22 of the
Govenan t.''
And they proceed to put forward the argument, also at page 105, that
these chapters of the United Nations Charter could be used as a guide to
the interpretation of the Mandate. 1 am not concerned with the merits
of that argument for the moment; we dealt with that fully in the plead
ings. I am merely concemed with an analysis of the way in which the
Applicants then put their case.
They purported to find further support for this argument of theirs in
~he resolution of the Assembly of the League of Nations of 18 April 1946,
m which, the Court will recall, it was noted- SOUTH WEST AFRICA
"... 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 League". (1, p. ro6.)
Mr. President, the Applicants accordingly used certain chapters in the
United Nations Charter as a basis for formulating these standards, which
they called norms, and against which they proceeded to measure the
Respondent's policies. 1 wish to draw attention to this passage in the
Memorials at page 107:
"It is submitted that the tenns of the second paragraph of Article
2 of the Mandate and Paragraph 1of Article 22 of the Covenant and
their stated purposes, read in the light of the terms and stated pur
poses of Chapters XI, XII and XIII of the Charter, establish clear
and meaningful norms marking the duties of the Mandatory."
The Court will notice, with respect, the emphasis placed in this passage
on the stated purposes both of Article 2 of the Mandate and of paragraph
r of Article 22 of the Covenant, and also of Chapters XI, XII and XIII
of the Charter.
Having quoted from Articles 73 and 76 of the Charter as being relevant
provisions of Chapters XI, XII and XIII, the Applicants continue to
say the following in regard to the content and nature of the clear and
meaningful norms which, they contended, were established by these
provisions :
"In accordance with these legal norms, the Mandatory's duties to
safeguard and promote the 'material and moral well-being', the 'so
cial progress' and the 'development' of the people of the Territory
must reasonably be construed to include": (1, p. IOJ.)
I pause there with this quotation for the moment. There follow eight
numbered paragraphs, in which, to use the Applicants' term, "duties"
of the Respondent are set out. This, then, was the distillation of clear and
meaningful norms from the material to which 1 have referred, and to
which the Memorials referred at that stage. And it is interesting to read,
in retrospect, how these clear and meaningful norrns, also called "duties",
were formulated. That we find at pages IOJ-I08 (1) of the Memorials.
They read as follows:
"(r) Economie advancement of the population of the Terri tory
and notably of the 'Natives' who constitute the preponderant part
of the total population in agriculture and industry;
(2) Rights and opportunities of members of the population em
ployed as laborers in agriculture or industry;
(3) Political advancement of such persans through rights of
suffrage, progressively increasing participation in the processes of
government, development of sclf-government and free political in
stitutions;
{4) Security of such persans and their protection against arbi
trary mistreatment and abuse;
(S) 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 persans;
(7) Educational advancement of such persons; ARGUMENT OF MR. DE VILLIERS
(8) Social development of such persons, based upon self-respect
and civilized recognition of their worth and dignity as hwnan
beings."
1Ir. President, it will immediately become evident that the nature of
these clear and meaningful norms, or duties, is poles apart from that
of the alleged norm of non-differentiation now relied upon by the
Applicants, or relied upon by them as from the Reply stage. We find
that in the whole of this list which I have read out to the Court, there is
virtually no reference to a question of method. The formulation relates
in each instance to an aim, to a result to be achieved, to a purpose; in
other words, there is a linking üp with the language "their stated pur
poses" used by the Applicants themselves at page 107 of the Memorials.
The only part of the formulation which could in sorne measure be said
to relate to questions of method is contained in No. ·(3)and No. (5) on
the list. In No. (3) we have the words "Political advancement of such
persons through rights of suffrage". In other words, a specifie method is
indicated-it must be through rights of suffrage. And then in No. (5) it
is said that there must be "Equal rights and opportunities for such per
sons in respect of home and residel).ce,and their just and non-discrimina
tory treatment". That is the nearest that the Applicants came in these
formulations to questions of method.
For the rest we have, for instance, "Economie advancement of the pop
ulation", with further detail following on that, but nothing indicating
how that economie advancement is to be achieved; certainly nothing,
Mr. President, in that respect or in the case of any of these other duties
as here formulated, indicating that there is to be a method of non-separa
tion, which has general application and covers this whole field.
\Ve have, in No. (7). "Educational advancement of such persons"
nothing to say that everybody must be in the same schools, or that these
must not be separate schools or the like-simply "educational advance
ment of such persans''.
Therefore, Mr. President, it appears on analysis, even allowing for
this limitedextent to which there was a reference to questions of method,
namely rights of suffrage and equal rights and opportunities, there was
nothing in the Memorials which indicated that the Applicants were rely
ing upon a contention that there was to be an abstention from any form
of differentiation between different national and ethnie groups in the
Territorv.
The formulation, therefore, concentrated on the objectives, on the
purposes to be attained, and left the whole question of method to the
Respondent's discretion. We contended in that regard, in the Counter
Memorial, Mr. President, that the clear and meaningful norms, or duties,
in essence amounted to no more than matters to which it could, with
sorne qualifications, be said that Respondent ought to have regard as
ultimate aims in exercising its discretionary functions under Article 2 of
the l\Iandate.
Our comment in a portion which I should like to quote, is to be found
in the Counter-Memorial, II, at page 397· We said there:
"... the duty to promote the material and moral well-being and
social progress of the inhabitants cannot be split up into a number
of different, self-contained fragments,but is in its nature indivisible.
Although Respondent is in general agreement that the specifie "clear6s8 SOUTH WEST AFRICA
and meaningful norms" relied upon by Applicants, can, on the whole,
be said to be matters to which regard ought to be had in the exercise
of the Mandate, it must be kept in mind that they represent ultimate
aims, which in certain circumstances or at certain stages of de\·elop
ment may be inconsistent or even irreconcilable. It is therefore arti
ficial, in Respondent's submission, to divide Respondent's duty in
terms of Article 2 of the Mandate into a number of different obliga
tions and then to suggest, expressly or by implication, that Respon
dent is obliged to attempt to comply with all these obligations to
the same degree at the same time."
That was our comment at the time. In other words, we accepted that
these, seen as ultimate aims, were matters to which, in general, regard
ought to be had by a Mandatory exercising a discretionary function,
but subject to the qualification which I have just mentioned, namely
that ail of them could not be advanced simultaneously to the same de
gree because to sorne extent they would be conflicting when it came to
practical application, and, also, of course, subject to the qualification
that questions of method to be pursued werc matters within the discre
tion of the Mandatory.
In regard to the two instances to which I referred where the Applicants
did, to sorne extent, refer to matters of method-the one about political
advancement "through rights of suffrage" and the other about "equal
rights and opportunities for such persons"-we contended that, even to
that extent, the Applicants went beyond the scope and the effect of the
provisions of the Mandate, i.e., that even in regard to those matters of
method the choice was one withln the Respondent's discretion.
We said the following in regard to the point of development of political
advancement through rights of suffrage at page 398 of the Counter-J\le
morial (II):
"... Neither in the Mandate, nor in the Charter, is there any pro
vision requiring that the political advancement of the inhabitants of
dependent territoriesshould necessarily be promoted 'through
rights of suffrage'. \Vhereas Respondent admits that it is under a
duty inter alia to promote the political advancement of the inhabi
tants of the Territory, it is submitted that the method to be adopted
in this regard rests in its mvn discretion, which is to be exercised by
applying policies 'as may be appropriate to the particular circum
stances of [the] territory and its peoples'."
Those last words are, of course, a quotation from, I think, Article 73
of the Charter.
Respondent proceeded to say that while it was "in no way opposed
to the idea of suffrage for ali or anypeoples in appropria te circumstances",
it did not consider that provision for such rights in one integrated politi
cal entity was the only, or the best, method of achleving political
advancement in aU cases, and that it was satisfied that "it would cer
tainly not be the best method for the peoples of South West Africa".
That is what we said in the Counter-1Iemorial, II, page 398.
In other words, there was no objection at ali to the principle of politi
cal advancement through this method of "rights of suffrage"-no dif
ficultyabout that at aH in appropriate drcumstances. But, the quali
fication was that the suggestion t)lat that was to happen in South West
Africa through the medium of one integrated, political system concerned ARGUMENT OF MR. DE VILLIERS
a question of method with which Respondent was definitely not in agree
ment.
We pointed out further in the Counter-Memorial that even in cases
where Respondent was in full agreement with the duties, or the so-called
norms, described by the Applicants, there was quite clearly room for
differences as to the best methods which could be applied to give effect
to the ideas expressed therein. And we illustrated that point particularly
with reference to dut y number (5) on the list, the one about "Equal rights
and opportunities ... in respect of home and residence and their just
and non-discrimina tory treatment". We answered that proposition as
follows in the Counter-l\Iemorial, II, at page 398-
"Respondent is in entire accord with this proposition, although it
is evident that differences could arise asto the best methods of giving
effect to the ideal expressed therein. Respondent must stress that
in its view the expression 'equal rights and opportunities' is not to
be interpreted to mean 'indentical rights and opportunities'."
This is again, Mr. President, a question of difference of method in
seeking to attain an ideal which is common cause. In this regard we re
ferred to a passage in the judgment of the Permanent Court in the
MinoritySchools in Albania case. I quote the following from the passage
as appearing in the Counter-Memorial, II, page 398:
"... equality in fact may involve the necessity of different treatment
in order to attain a result which establishes an equilibrium between
different situations.
It is easy to imagine cases in which equality of treatment of
the majority and of the minority, whose situation and requirements
are different, would result in inequality in fact ... "
Mr. President, we may, then, summarize what we found in the Memo
rials and how we reacted to it in the Counter-Memorial. The clear and
meaningful norms were so formulated that they indicated objectives.
We stressed in our reply thereto in the Counter-Memorial that those ob
jectives, in so far as they were acceptable-and they were, on the whole,
cntirely acceptable as objectives, subject to the qualifications I have men
tioned-allowed of a wide variety of methods by which we could seek to
achieve them: it did not mean, in particular, that everybody was to be
treated identically, in ali respects, in the process of promotion to the ut
most.
This, then, was the position at which the Parties stood at the end of
the Counter-l\femorial before there came the switch to this general norm
of non-differentiation in the Reply. First of ali, let us analyse whether
the Applicants in any way intended to indicate in the Memorials that
these clear and meaningful norms were intended to have a fixed or a
definite content capable of exact application to the facts of each case,
orto the policies applied by the Respondent, without regard to questions
of discretion or of method or of good or bad faith.
1 submit, Mr. President, that when we analyse the position, it seems
quite clear that the Applicants did not, at that stage, intend to suggest
anything of the kind-to suggest a full fetter on the discretion of the
Respondent in regard to the attainment of the ideals. They described
these norms as "legal norms" at page 107 (1) of the l\Iemorials, but
immediately preceding the term "legal norms", they used the expression66o SOUTH WEST AFRICA
"clear and meaningful norms". And, indecd, they indicated that the
words were to be regarded virtually as a paraphrase, or the equivalent,
of the "clear and meaningful norms". Then, at page 104 (1) of the
Memorials, the Applicants speak of:
" ... currently accepted standards as reflected in Chapters Xl, XII
and XIII of the Charter of the United Nations".
These, Mr. President, are the self-same terms and stated purposes as
those which, according to the Applicants' submission at page 107 of the
Memorials, assist in establishing the "clear and meaningful norms" or
the "legal norms".
\Ve see, therefore, that we have so-called "clear and meaningfulnorms''
and that they are also called "legal norms" but that they were not
intended to be anything more than the standards and the purposes
mentioned in Chapters XI, XII and XIII of the Charter of the United
Nations, and more particularly in sections 73 and 76 thereof.
The other reason why this is perfectly clear, Mr. President, arises
from the fact that the Applicants did not, in their Memorials, rely only
on these "clear and meaningful norms" in support of their proposition
that the violation of duty on the Mandatory's part went beyond the
conjectural sphere and was, indeed, beyond argument. They proceeded,
after stating these norms, to indicate that. in tact, the policies pursued
by the Respondent amounted to a deliberate system of oppression of a
certain portion of the population. They said that not only did the
Respondent fait in its duty to promote to the utmost, but that it made
no significant effort whatever to do so. And they went on to use the
expressions to which I referred before, indicating a deliberate and
systematic course of conduct on the part of the Respondent; in other
words, an attitude of bad faith as far as the prescribed objectives of the
Mandate were concerned-an attitude, not of seeking to achieve the
prescribed objectives, but of seeking to achieve or pursue an ulterior
objective. That, then, was the basis upon which the Applicants sought
to establish, in the ultimate result, that the violation of duty could be
said to be beyond argument. The norms themselves and by themselves,
as the Court will observe from this analysis, could never have brought
them to that result. The norms merely split up the objectives into severa!
parts and such objectives remained objectives which could be pursued
through the exercise of the Mandatory's discretion.
Be that as it may, Mr. President, in the Counter-Memorial the Re
spondent showed that these various norms which the Applicants sought
to apply in the Memorials, did not, even if they existed, materiaU y affect
the discretionary nature of the Respondent's powers under the l\Iandate,
and that due application of the Respondent's discretion led to practical
results which were opposed to those desired by the Applicants.
In the Counter-Memorial, Mr. President, we also dealt very fully with
aU relevant facts bcaring on the question of the real intent of the Re
spondent Govemment in regard to the policies applied to the various
population groups, and we demonstrated that the intent and purposes
and objectives were not oppressive of any portion of the population,
as had been alleged by the Applicants, but that they were, in fact,
objectives aimed at the upliftment of aU the population groups and
at bringing them aUto a point of self-determination and self-realization
which would be fair and just in the circumstances, having regard to ARGUME!'<T OF MR. DE VILLIERS 661
confiicting interestsand to the necessity of bringing about a state of
equilibrium, as mentioned in the judgment of the Permanent Court in
the Minority Schools in Albania case.
It is against this background, Mr. President, that the significance of
the new norm, as formulated in the Reply, must be viewed. In the
Reply, IV, at p. 493, we find the norm defined by the Applicants as
follows:
"... the terms 'non-discrimination' [and] 'non-separation' are used
in their prevalent and customary sense: stated negatively, the terms
refer to the absence of govemmental policies or actions which allot
status, rights, duties, privileges or burdens on the basis of ... indi
vidual merit, capacity or potential: stated affirmatively, the terms
refer to governmental policies and actions the objective of which is
to protect equality of opportunity and equal protection of the laws
to individual persans as such".
One sees at once, Mr. President, the essential difference in character
between this norm and the norms, or standards, as presented in the
Memorials. The norm in the Reply is given the character of a precise
prescription of what the Respondent may and may not do in the exercise
of the Mandate. It is a prescription against which the Respondent's
conduct can be tcsted objectively because the prescription relates to a
matter of method of attaining the prescribed aims-a question ot
method which covers the whole field. Throughout the whole field of
advancement-political advancement, economie advancement, educa
tional advancement-it is sought to prescribe a method which is to be
applied, and it immediately becomes clear that it contains a concept,
which was certainly not present in any of those meaningful norms and
standards suggested in the Memorials.
The Applicants go on in the Reply, IV, at page 493, to say that this
norm gives an "objective content to Article 2, paragraph 2, of the
Mandate". In other words, the norm is presented as one which defines
aspects of Respondent's obligations in terms as definite as those con
tained in Articles 3 to 5 of the Mandate. It is capable of rcady application
to the facts of a particular situation, as objectively and without reference
to the question of motive, purpose, or intent, as is the position under
Articles 3 to 5 of the Mandate. We gave an analysis on that point in the
Rejoinder, V, especially at pages 166-167.
We pointedoutin the Rejoinder, V, page ng, that if there existed such
a norm as defined in the Reply, and as I have just read out, and if that
norm had formed a part of the Mandate, then:
"... it would have the consequence that Respondent's admitted
policies of differentiation 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 popula
tion as a whole".
That is quite obvious, Mr. President, from the unqualified way in which
this norm was stated in the Reply, in terms of the definition which 1 have
just read out.
It, therefore, seems clear that the norms of the Memorials were not of
the same kind as this "norm of non-discrimination or non-separation",
and that is the reason why we can, with submission, say with every662 SOUTH WEST AFRICA
justification that Applicants have indeed introduced a new cause of
action in the Reply-something which was neither expressly, nor
implicitly contained in the Applicants' case, as formulated initially in
the Memorials. We deal fully with this subject in the Rejoinder, V,
page ros.
Now, Mr. President, my lcarned friend, Mr. Gross, exprcssed surprise
at our submission that a new cause of action was involved. 1 refer to the
verbatim record, at page 253, supra, where he stated:
"The only 'cause of action' involved in the present proceed
ings, ... in the view of the Applicants, is that embodied in their
Subrnissions Nos. r through g, and the Prayer for Relief, ail of
which are set out in the Memorials at 1, pages 197 and rgS. That has
been, and remains, the 'cause of action'."
Mr. President, it may be that my learned friend and we are not ad idem
asto the meaning of the expression "cause of action". As we know it in
our practice, the expression refers to all those elements which a party
bas to prove in order to establish his case, i.e., to show that he is entitled
to the relief which he daims, or, as in this case, that Applicants' sub
missions are well-founded. In other words, there is a complete distinction
between the cause of action, on the one band, and the relief daimed, on
the other band-the submissions, or prayers, as we call them in our
practice, or prayers for relief. The cause of action is that which has ta
justify the prayer for relief, or the submission, and it is in that sense
that we say that a new cause of action bas been substituted. It is a
setting out of the factual allegations which, upon an application of the
law to the facts, would entitle a litigant to the relief which he daims by
way of his submissions, or his prayer for relief.
It needs no argument, Mr. President, to show that submissions, or
prayers for relief, may be based upon various grounds. They may be
based upon alternative grounds or, as has happened here, in our sut
mission, one may start off by putting forward one ground for the prayer
for relief and then switch over completely from that to an entirely
different one-that, we submit, is what has happened here. The mere
fact, therefore, that the prayers for relief, or the submissions, remain
the same, is no proof at all that there has been no change in the cause of
action.
On the question whether the Reply in fact introduced a new element
in the shape of this alleged norm of non-differentiation, the Applicants'
argument is, in our submission, anything but dear. If we analyse what
they say in the verbatim record of 24 M:arch, at page 253, supra, then
the argument seems to amount, in a nutshell, to this: our submission as
to a change of cause of action is unjustified because the Applicants have
in the Reply "elaborated certain contents and sources of the suggested
norms". That is the way in which they represent it now.
They go on to say that their "reference to the terms and purposes
of Chapters Xl, XII and XIII of the United Nations Charter was not, of
course, intended to imply that these ... [norms] and purposes [i.e.,
those set out at pages IOJ-IOS (1) of the J\Iemorials] marked the full
measure and extent of the legal norms applicable to the Covenant and
relevant to the interpretation of the Mandate" (p. 253, supra).
Mr. President, it isnot nearly as easy as that for the Applicants. It is
not merely a matter of elaborating certain contents and sources of the ARGUME~T OF :\IR. DE VILLIERS
suggested norms, nor of contrasting a "full measure and extent of the
legal norms" with a lesser "measure and extent". It is a matter of sug
gesting and advancing an entirely different type of norm. As 1 have
stressed, it is a norm which covers the whole field of the Mandatory's
endeavours to promote to the utmost, and prescribes to it a method of
action which it is to apply in ali its actions in seeking to promote to the
utmost. lt is something which imposes a "must" upon it and which takes
away its discretion in that regard. And it is, in these respects, com
pletely differentand completely new, as compared with the formulation
of the "meaningful norms and standards'' at the Memorials stage.
My learned friend also stated:
"(a) an international ... norm does exist which may fairly be
described as a norm prohibiting official governmental alloca
tion of status, rights, duties and privileges upon the basis of
membership of a group, class or race, without regard to indi
vidual merits, capacity or quality;
(b) that such legal norm is applicable to, and determinative of,
Respondent's obligations in tcrms of Article 2, paragraph 2,
of the Mandate;" (p. 267, supra).
Here, in the Oral Proceedings also, Mr. President, my learned triend
makes it clear that the norm, as so framed, prohibits certain conduct:
inother words, it is a mle which deprives Respondent of its discretionary
powers on questions of method, and, as I have said, it extends over the
whole field of endeavour to promote to the utmost.
This is also, as1 have pointed out, the effect of the rule as it appeared,
on analysis, to be stated in the Reply, and there can, therefore, be no
doubt at ali that the mle, as introduced at the Reply stage, was an
entirely new one, whatever the reason may have been for that change.
The next point of importance to which I wish to proceed is the fact
that there has been a further change in the oral argument in regard to
the Applicants' case on that norm. They have now found it necessary to
qualify that norm as originally defined in the Reply, and to say that it is
not to be taken as an absolute one which must be applied in ali circum
stances.'In other words, Mr. President, it is now no longer possible to say,
as we did in our Rejoinder, that the Respondent's admitted policies of
differentiation would necessarilv, and perse. constitute a contravention
of this norm. We said there- •
"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" (V, p. ng). ·
The norm as originally formulated in the Reply was an unqualificd one.
It applied to ali forrç.s of differentiation without exception, differentia
tion on the basis of group, race, colour, as the case might be. There was
no qualification of that proposition, and, therefore, we could say, on
analysis, and say correctly, in our submission. that Respondent's con
duct would be unlawful for contravention of this norm even if its policies
were, in fact, intended to enure and did, in fact, enure to the benefit of
the population as a whole.
Now, Mr. President, what qualification is it that the Applicants have
sought to introduce in their oral argument? It is not clearly developed,
nor stated in detail, nor analysed in regard to its implications, but it SOUTH WEST AFRICA
seems to amount to this: that in sorne instances differentiation on the
basis of groups is permissiblc, and that those instances are such as could
be described as group protection. Thus the Applicants say according to
the verbatirn record at page 262, supra:
"The question of differentiation as such does not arise; if it did,
the minorities treaties themselves would be subject of attack, which
they clearly cannot be. \Vhat is at issue here is, as has been said,
the official governmental policy of allotting rights, duties, burdens,
etc., upon the basis of membership in groups."
The Applicants also proceeded to say, according to the same verbatim
record, at page 263, supra:
"... the concept of genuine 'group protection' for those who desired
and required it-protection as distinguished from coercion",
was and is widely accepted.
They say, in fact, Mr. President, that the concept of group protection,
and the norm of non-discrimination and non-separation, are complemen
tary. That we find in the verbatim record at page 263, supra. ln other
words, this concept is now to be read into the norm as a qualifying factor.
There is in general to be no differentiation on the basis of group, tribe,
race or colour, but, as an exception, there is to be allowed, apparently,
differentiation for the purpose of group protection. I do not quite know
which phrase to use-"for the purpose of", or "having that effect"-the
Applicants did not say.
Mr. President, in our submission, this qualification strikes at the very
heart of the Applicants' nonn of non-differentiation as advanced in this
case, and having regard to the purposes for which it is advanced. The
purpose of bringing that norm into the case, the Court will recall, was to
have something by which Respondent's conduct could be measured ob
jectively so as to avoid having to establish the malicious intent about
which the Applicants found themselves to be in difficulty. They conse
quently had to find something, by which they could objectively, i.e.,
\VÎthout bringing anything in the nature of intent or state of mind into
the picture, say the Respondent's conduct constituted a violation of the
Mandate. \Vhen we look at this qualification which they now introduce,
and take it to its logical conclusion, it demonstrates, in our submission,
nothing Jess than that there is a discretionary power vested in the Re
spondent as to the circumstanccs and the considerations which justify
group differeutiation: in other words, that, by this qualification, the
Applicants have brought back the discretion which they sought to re
move in the first instance.
Mr. President, let us briefly analyse the Applicants' statement that
genuine group protection is pennissible for those who desire and require
it.Who decides what measure of protection is necessary? \Vho decides
on the methods to be adopted in order to achieve protection? And pre
cisely what, Mr. President, does the concept of protection include? Those
\Vhat is the position where a group desires pro
are questions which arise.
tection without possibly requiring it, e.g., if a group says "I want this
protection" but other people think that they do not require it, or that
they have no just claim to it. Who decides whether differentiation is re
quired or necessary as a protective measure? What is the position where
a group requires protection but is, because of its state of development, ARGUMENT OF MR. DE VILLIERS 66s
state of disorganization, or similar reasons, unable to give proper ex
pression toits specifie needs? Who decides in cases where a group might
require protection, but that group does not think that it needs protec
tion? Mr. President, what test or norm must be applied by the one who
has to decide such questions as 1 have just mentioned? The Applicants
have not dealt with that at ail They have not said who or what pre
scribes to the Mandatory what to decide in cases of this kind.
The only logical, the only possible answer, in our submission, which
could be given to questions of this kind, is the general one, namely that
necessary decisions fall within the competence of the discretionary powers
vested in the governing body. In the case before the Court, it is the Re
spondent Government. We do not have togo through this process of say
ing that there is a norm that you should not differentiate, but that you
may have exceptions to the norm according to your discretion. The whole
matter is entrusted to the discretion of the government concerned. That
is the pure and simple answer to this whole situation, and it lcads my
learned friend out of all of his difficulties. It Ieads him out of the difficulty
of attempting to formulate a prohibition for the Mandatory, for as soon
as he formulates it, he lands himself in such difficulties that he has to
qualify,and when he qualifies, he qualifies to such an extent that he is
right back in the discretionary sphere of the Mandatory's powers.
Mr. President, another aspect of this distinction, or qualification, caUs
for attention, and that is this: how can one distinguish between the two
concepts of protection, which is allowed, and coercion, which is not
allowed. How can they be said to be exclusive concepts? Clearly they are
not. As soon as I have a legislative measure which 1 consider to be
necessary in order to protect a certain group, surely that measure, in
order to achieve its purpose, must have certain coercive aspects. It could
be coercive as far as that particular group is concerned, or, at !east it
could be coercive, andit must necessarily be coercive as far as other groups
are concerned which do not share that protection. When 1 say that Na
tives atone are entitled to own land in a certain area, then I coerce other
parties---other persons-who might be interested in buying land in that
area, for 1 make it impossible for them to do so. By coercion I keep people
separa te,but I do so for the purpose of protection. So how are those con
cepts to be regarded as mutually exclusive? 1 simply do not follow that.
1 do not follow, Mr. President, how the Court decides whether a particu
lar measure is to be regarded as protection, or as coercion, when it car
ries within itself both of these aspects.
Another question arises with which my learned friend has not dealt:
can protection, according to his norm, be extended to underdeveloped
groups only, or also to a more developed group such as-let us take as an
example-the European or white group in South \Vest Africa, a group
whose presence is necessary and desirable for the economie advance
ment of the Territory? Suppose a Mandatory in its discretion decides
that such a group's presence is necessary for that particular purpose and
suppose that is a sound decision, is the Mandatory then allowed to apply
measures to protect the interests of that particular group also, in so far
as it may be necessary, against possible encroachments upon its domain
from the side of Jess developed and more numerous populations? Is that
possibility included in the norm, or is it not, and if it is not included in
the norm, on what basis of justice or modern standards or ethics or any
thing on which my learned friends relies for determining his norm is that666 SOUTH WEST AFRICA
exclusion to be justified? We just do not know. Mr. President, the posi
tion is either that these mattcrs are, as we say, all ta be left entirely ta
the discretion of the manda tory government-i.e., the Mandatory is to
decide in its discretion, honestly, what to do in these cases, and the only
basis upon which the Court tests it is whether it is honest in its decisions
or else the Court would have to undertake this impossible task of analys
ing measure for measure and of determining in each case: is this a case
of protection, oris it a case of coercion? And the Court would somehow
have to find answers ta the various questions 1have mentioned in applying
that test.
Mr. President, this brings me back to the fact I mentioned earlier,
namely that if this is to be the enquiry which this Court has to conduct,
then the Court is being asked at this late stage of the proceedings-after
all the pleadings have been closed only at the oral stage of the proceedings
-to undertake a completely new canvassing of the facts, because every
measure, every policy, every practice involved would have to be tested
according to this new criterion: it is something to which no attention
at all was given anywhere in the pleading stages. In each instance in the
case of the provisions of any particular Statute, we shall have to analyse
the surrounding circumstances, the facts, the background, and ask:
can itbe said to have been a measure for protection, or must it be said
to be a measure of coercion?
Mr. President, as 1 have said, the question is not merely a legal one;
it requires an appreciation of facts, and, in arder to determine a question
of that kind, it requires that the relevant tacts should be properly brought
before the Court. Nobody has attempted to bring facts bearing upon that
question before the Court, simply because thcre was no allegation of
this kind before; there was no charge formulated on this basis. If the
Court should, therefore, come to the conclusion that this is the nature of
the enquiry to be conducted by it, the Court should conclude that after
consideration of this legal argument. It seems that the whole position
would have to be reconsidered. One would have to see whether leave
should be given to the Applicants to amend their pleadings so as to
introduce this charge, and, also, whether leave should be given to the
Respondent ta reopen its pleadings in arder to deal with the facts and
aspects of the matter in this regard. That is the logical conclusion in this
respect to which the Applicants' contentions lead us. But in truth, Mr.
President, 1 submit that this is merely a further demonstration that the
whole of this contention of the Applicants as a matter of law is entirely
without substance, and that there is no justification whatsoever for find
ing that such a vague norm exists-a norm which is incapable of exact or
intelligibly precise formulation on any known principle of interpretation
or on any application of the normal sources from which legal obligations
and legal norms are derived. The analysis and review of the history of
this norm, and of the qualifications now introduced into it serve, in our
submission, to confirm that the matter is one to be left entirelv to the
discrebon of the Manda tory; that that is how it was intended by the
authors of this system; that that is the ordinary, legal effect of the
instrument; and that no interpretation or any other process can introduce
a qualification of this kind into the legal approach to the matter.
Now, Mr. President, in view of this change in the Applicants' case,
it may be necessary-1 refer to it in passing-to be explicit about a
particular point to which the Applicants referred in these Oral Proceed- ARGUMENT OF MR. DE VILLIERS
ings as being an admission on our part. My learned friend, Mr. Gross, on
behalf of the Applicants stated in the verbatim record, page 261, supra:
"It should be noted that Respondent has conceded that this basic
and minimum international standard 'would, if it existed, provide
an objective criterion for measuring Respondent's policies'. [He re
ferred to the Rejoinder, V, page 165. He proceeded:] It also is con
ceded by Respondent that if the Mandate contains such a minimum
basic standard, then, again in Respondent's words, 'Respondent's ad
mitted policies of differentiation would constitute a contravention
of the Mandate'."
Now, Mr. President, it will be quite evident that these concessions on our
part related to the norm in its absolu te form, as it wasstated in the Reply.
Indeed, in this last passage from the Rejoinder, quoted in part by the
Applicants in the passage I have just rcad, there followed immediately
the following words which I rcad out to the Court earlier this morning,
namely "... even if the Court were to hold that such policies were in
tended to enure, and did in fact enure, to the benefit of the population
as a whole" (V, p. rrg). These words were omitted from the Applicants'
quotation, and the Applicants in effect, in these statements to the Court,
suggest that this extract from the Rejoinder, this concession on our part,
wouldstill beapplicable also to the norm as amended in these Oral Pro
ceedings. Now that, emphatically, Mr. President,is not the case. We do not
concede that our policies contravcne this new "protection, not compulsion"
formula. That would involve an entircly new enquiry, as 1 have said, if it
were to be undertaken in every case. In general, Mr. President, if we have
regard to the underlying considerations of fairness and justice-which,
it would seem, compelled my learncd fricnd to introduce this "protec
tion, not compulsion" formula-then we submit that our policies comply
in every respect with those underlying ideas, those underlying concepts, of
fairness and justice. It is especially because of considerations of protec
tion, fairly applied inthe circumstances of the Territory, that it has been
found necessary to have differentiation; but we do not see the logic of
saying that it must be protection, not compulsion; we do not see any
logical possibility of keeping those two separate as concepts.
Mr. President, 1 proceed to consider the Applicants' contention re
garding the so-called norm of non-differcntiation from another angle,
which, in our submission, independently demonstrates its untenability.
In the Rejoinder, V, at pages 123-I27, we showed that-
"... the mandate system, by its very terms as well as its underlying
philosophy, according to the contemplation of its authors, the policy
of the Permanent l\fandates Commission, and the practical applica
tion of the system by Mandatory Powers, permitted and indeed re
quired differentiation among various ethnie, linguistic or cultural
groups, and, consequently, amo,ng their individual members, on the
very basis of membership in such a group". (V, p. 127.)
That was a conclusion stated after the subject had been reviewed.
Mr. President, it stands to reason, accepting for the moment the correct
ness of that submission (1 shaH deal with the argument in support of it
in a moment) that not only would this norm contended for by the Appli
cants which prohibits such differentiation, first, in an unqualified way,
as stated in the Reply, and now, with qualifications, as stated in the
oral arguments, mean the addition of such a norm to what was agreed668 SOUTH WEST AFRICA
upon in the mandates system, but it would also, to a very large extent,
be a complete reversai of concepts which went into the mandates system
as legal norms binding upon the Mandatory. That appears very clearly
from the material to which we refer in the pleadings in support of the
conclusion which 1 have just read out.
We pointed out in the l~ejoin Vd,prges 123-124, that the prevalent
philosophy, during and after the First World \Var, placed more emphasis
on the right of national groups of self-realization than has been current in
certain spheres of the internationalscene in more recent times.
We pointed out that this philosophy was effectuated, amongst others,
by the creation of national States out of the remuants of the German,
Austro-Hungarian and Ottoman Empires, as well as by the minorities
provisions. 1 should likeo rcfer the Court in this regard to pages 123-124
of the Rejoinder (V).
I mentiononlysomeaspectsofourtreatmentofthesubject. 1 am not go
ing into it in detail, as it is set out in the Rejoinder.
We quote, for instance, from the 14 Points of President Wilson, Point
9 in which he set out the aim of "A readjustment of the frontiers of Italy
along clearly recognizable lines of nationality' " (italics added) (p. 123);
then Point ro~"The freest opportunity of autonomous development to
the peoples of Austria-Hungary, which it was not intended to destroy"
(italics added) (p. 123); next in Pointrz~" 'undoubted security ot life
and an absolutely unmolested opportunity of autonomotts development'
to other nationalities now under Turkish rule" (italics added).
\Ve refer to a surnmary of the principles, as given by President Wilson
himself, reading-
"An evident principle runs through [the Fourteen Points] ... It is
the principle of justice to ail peoP.lesand nationalities, and their right
to live on equal terms of liberty and safety with one another, whether
they be strong or weak." (Italics added.) (V, p. 123.)
Then, on II February rgr8, President Wilson laid down four principles
as essentialto permanent peace, the fourth of which read:
"All well-defined national elements shall be accorded the utmost
satisfactionthat can be accorded them \1/Ïthout introducing new
or perpetuating old elements of discord and antagonism." (Italics
added.} (Ibid.)
We proceed, Mr. President, to refer to provisions of the varions minori
ties treaties, making it clear that the solution adopted with regard to
minorities was, in keeping with the times-" ... not to encourage their
assimilation with the majority but rather to Protect their existence as
separategroups''.(Italics added.) (Ibid., p. 124.) 'l'hiswas the background
to the large number of treaties. We indicate, for instance, provisions re
lating to the protection of minorities as groups in regard to matters such
as the use of their language, the establishment of charitable, social, re
ligionsand educational institutions, and the provision of facilities by the
State for those purposes.
One of these provisions we quoted, read as follows:
"In any town or district where a considerable number of a linguis
tic minority was resident, adequate facilities were to be provided
by the State to ensure that in primary schools, instruction should
be given to the children of such nationals through the medium of
their own language. In addition provisions were included for the ARGUME~T OF MR. DE VILLIERS 66g
equitable appropriation of public funds by the state, municipality
or other budget, for the educational, religious or charitable institu
tions of minorities in towns and districts where a considerable pro
portion of the residents belonged to racial, religious or linguistic
minorities." (Ibid.)
It is obvious, Mr. President, that in these cases the protection is on the
basis of the groups. The principle of equality was applied as between
the groups-the majority groups and the minority groups-and that
necessarily involves a differentiation in the treatment of these respective
groups and also in the treatment of the individuals comprised in the
groups. That differentiation proceeds on the very basis of membership
in such a group.
It was in that context that the Permanent Court commented-in the
passage l read out to this Court this morning-on the difference between
equality in fact and equality in law in cases of treatment of this kind, in
which the aim of equality may, in fact, make it necessary to have differ
ent treatment in arder to attain a result which establishes an equilibrium
between different interests.
l\Ir. President, we refer further to a comment by Sir Hersch Lau terpacht,
which 1 do not want to read out to the Court now, on a certain change
in philosophy in sorne quarters in regard to the protection of the national
ity rights of minorities, which he regarded to a certain extent, as a pity.
At that stage what we wanted to stress was the philosophy or the
approach of the time. It was in those times and as part of that same
philosophy that the mandates system was born, and so it is quite natural
to find that the mandates themselves showed effects of such philosophy,
coupled with the concept of trusteeship. The mandates system not
only contemplated, but it also required the application of principles
of differentiation among various groups.
\Ve find that in the very concept embodied in the introductory para
graph of Article 22. Sorne peoples were to be regarded as "peoples not
yet able to stand by themselves" and they were to be entrusted to the
tutelage of other peoples called "advanced nations". Different types of
mandates were to be created, inter alia (1 quote from Article 22, para
graph 3), "according to the stage of development of the people".
The provisions of the various mandates themselves require differentia
tian. ln the A mandates there were provisions, similar to those regarding
minorities, relating to protection of national groups regarding language,
education, religion and social rights, and so forth. We give the references
in the Rejoinder, V, at page 123.
ln the Band C mandates the emphasis was more on trusteeship, and
on protection of the Natives against abuses, such as those regarding
Iiquor, militarization, Native land, and so forth. And those provisions,
of necessity, also involved differentiation. We find, Mr. President, that
Article 22 already begins to indicate, expressly, the necessity for such
differentiation. In paragraph 5 of Article 22 of the Covenant, with
reference to the B mandate, it is provided that the mandatory must be
responsible for the administration of the territory under certain con
ditions. One of those conditions read:
"... the prevention of the establishment of fortifications or military
and naval bases and of military training of the natives for other
than police purposes and the deferree of the territory, ... ". SOUTH WEST AFRICA
In Article 22, therefore, the authors of the Covenant, with full know
ledge of the fact that there were other inhabitants than Natives in sorne
of these mandated territories, already providcd for a certain prohibition
to apply only in the case of Natives.
\Ve find in paragraph 6, regarding Cmandates, that there is a reference
back to all the conditions set out in the previous paragraph, and that
reference back reads "subject to the safeguards above mentioned in the
interests of the indigenous population'', again indicating that all these
various matters referred to in paragraph s-the administration, the
guarantee of freedom of conscience and religion, the prohibition of
abuses such as slave trade, arms traffi.c and liquor traffic, and so forth
were all regardcd as differentiai provisions intended to safeguard the
interests of the indigenous population.
Then, when we come to the Mandate for South West Africa, being
typical of C mandates in these particular respects, we find that in
Article 3 the last sentence reads "The supply of intoxicating spirits and
beverages to the natives shaH be prohibited". Article 4 contains the
prohibition against the military training of the Natives otherwise than
for certain purposes. So there again the contemplation of differentiation
finds clear expression. The Articles impose an obligation upon the
Mandatory to see to it that such differentiation shaH occur.
In the B mandates one further finds, Mr. President, certain provisions
in regard to Native land, operating as protection in that regard. We
refer to that at this page (p. 125) in the Rejoinder (V), and that refers
back to our references in the Counter-Memorial.
We next pointed out, Mr. President, that quite apart from these
provisions in the mandates system itself, the Permanent Mandates
Commission, in its supervision of the application of the system, very
clearly showed its appreciation of the necessity for differentiation
between various population groups and members of such groups, on the
very basis of membership in groups. 1 should like to refer the Court to
the Counter-Memorial, Il, pages 417-418, where we cite sorne relevant
excerpts from the records and the minutes of the Permanent Mandates
Commission.
At page 417 we cite an extract from the minutes for 1937. where the
chairman remarked that-
"... South West Africa differed from other parts of tropical Africa
in the striking inequalities that existed between the physical and
moral capacity and potentialities of the different races living there.
The principal cause was no doubt to be found in the past history
of the territory-that was to say, in the dispersals and wars of the
past. That inequality called for great elasticity in the native adminis
tration and the adoption of different rules for the various tribes
to which they were applied."
At the same page we cite sorne further random extracts, one from the
1922 minutes in which the Commission expressed the hope "that the
primitive organisation in tribes may be maintained unaltered wherever
it ... exists".
In 1923 Mr. Yanaghita expressed the view that-
" ... the mandatory Governments are to be commended on their adop
tion of the principle of maintaining the former organisation of the
tribes, and of recognising the power of the chiefs up to a certain point". ARGUMENT OF MR. DE VILLIERS
In 1924 the Commission expressed the "opinion that the soundness
of the views which have prompted the Administration [that is, in South
West Africa]. to adopta system of segregation of natives in reserves will"
lead to certain further steps. But 1 emphasize the phrase "the soundness
of the views which have prompted the Administration to adopta system
of segregation of natives in reserves".
ln 1937 Mlle Dannevig said that she "agreed that great precaution
should be exercised as regards interference with Native customs".
Mr. President, with respect, it is perfectly clear that the nccessity for
differentiation was contemplated and was intended.
\Ve refer in the Rejoinder, V, at pages 125-126, also to an aspect of
the questionnaire which was prepared by the Commission for the con
sideration ofthe manda tory powers, and to which the latter had to reply
intheir annual reports. Article II of this questionnaire read as follows
I am quoting from page I26-
"What are, generally speaking, the measures adopted to ensure
the moral, social and material welfare of the.natives? (Measures to
maintain the interests, rights and customs of the natives, their par
ticipation in public service, native tribunats, etc.)" (ltalics added.)
We submit Mr. President, it was in the nature of things quite impos
sibleto adopt appropriatc measures to maintain the interests, rights and
customs of the Natives in South West Africa or in many of the other
mandated territories without differentiating between the various groups
and between the members of the groups on the basis of membership in
that group.
Mr. President, in the Counter-Memorial, Il, at pages 414-416, and
again in the Rejoinder, V, at page 126, we also deal with the tact that
the authors of the Mandate had full knowledge of the fact that policies
of differentiation between the various groups were being applied in
South Africa itself at the time. In the discussions which led up to the
granting of the Mandate to the Respondent, there was a considerable
measure of reference to these Native policies, and at the time the argu
ment was advanced by General Smuts and also by certain other com
mentators, that it was desirable that the same Native policics as in
South Africa should be applied in South West Africa. That appears very
clearly from the references which wc give in the Counter-Memorial, Il,
at pages 414-416, and 1 need not read them out to the Court.
Mr. President, we also refer to the fact in the Rejoinder, V, pages
rz6-127, that in other mandatory and colonial territories, various poli
des of differentiation were applied, and I should like to read a portion
from the Rejoinder on that point. \Ve refer back to the way in which we
dealt with this subject in the Counter-Memorial and we say at page r26
of the Rejoinder (V):
"In accordance with the generally prevalent philosophy of main
taining the identity of separate national, linguistic and cultural
groups, and of guardianship and trusteeship of less-developed peo
ples,other Mandatories also applied policies involving various forrns
and degrees of differentiation. This may be seen for instance in the
policy of indirect rule, which has been defined as follows:
[And then follows a quotation from Lord Hailey in his African Survey
of 1938.]6]2 SOUTH WEST AFRICA
'lt insists that [it being the policy of indirect rule], if the native
authorities are to become not only a part of the machinery of
government but a living part of it, the political energies and
ability of the people must be directed to the preservation and
development of their own institutions; the native authority selec
ted for recognition by government must thercfore be that which
according to tribal tradition and usage bas in the past regulated
the affairs of each unit of native society; it is equally important
that it should be that which the people of to-day are willing to
recognize and ohey. But the objective is not merely the utilization
of native authorities as instruments of local government; native
administration is conceived as a means of trying to graft our
higher civilization upon the soundly rooted native stock ...
moulding it and establishing it into !ines consonant with modern
ideas and higher standards'."
That was an expression given to the concept of indirect rule at the
time, the time being in the rg3os. But, Mr. President, I may perhaps
read further from the Rejoinder, at page 127:
"lt will be apparent that this policy of indirect rule necessarily
involved differentiation regarding the various Native groups within
a territory, inter se as weil as in relation to the more developed
groups such as Europeans or Asians. As noted in the Counter
Memorial, one finds that indirect rule was practised in each of the
three British Mandated territories, Tanganyika, British Cameroons,
and British Togoland. And, although not by that name, the prin
ciples underlying the policy were applied also in each of the other
three African .Mandated territories, Ruanda-Urundi, French Came
mons and French Togoland. Similarly the policy found application,
under its name or by way of its underlying principles, in a large num
ber of other territories. In keeping with this approach, there was up
to World \Var II no participation by Africans in the central legisla
tive and executive organs of any of the Mandated territories, as was
also shown in the Counter-Memorial."
We point out further, Mr. President-! am stiJl reading from page I2]-
"In pursuance of, or in addition, the policy and principles of
indirect rule, differentiation as between members of varions popula
tion groups was practised in ether Mandated territories (and other
territories) in Africa in a spirit of guardianship, trusteeship and
paternalism, also in regard to legal systems, land tenure, residential
facilities, aspects of economie policy, control of population move
ment, education, and other aspects of govemment."
And we refer to ali the passages in the Counter-Memorial which give the
authorities and quotations to substantiate that statement.
That then, Mr. President, is the setting for, and the background to,
the mandates system-that was the philosophy which applied at the time
when the system was agreed upon-that was the philosophy which went
into its application over ali the years. Incidentally, we know that the
Applicant countries, Ethiopia and Liberia, were Members of the League
of Nations but, as far as we are aware, there is nothing whatsoever on
record to indicate that they, at any time, raised any objection to policies
of differentiation applied in South West Africa or indeed in any other
mandated territories. ARGUMENT OF MR. DE VILLIERS 673
That was the policy, not only contemplated by the authors of the
mandates system, but in many respects expressly required of a Manda
tory. Sorne of the express provisions of the mandates system required
the .Mandatory to apply differentiation white others very obviously con
templated and expected that such differentiation would be applied.
Therefore, Mr. President, to introduce now the norm of non-differentia
tion contended for by the Applicants, especially in its unqualified form,
as it was originally stated in the Reply, would, as I have said, entait not
only sorne addition to-some incorporation of something extra into-the
mandates system-but also a dramatic reversai of sorne of the basic
principles which were enshrined in the mandate. And the Applicants,
Mr. President, on that unqualified basis upon which they stated their
norm in the Reply, would, 1submit, be at a loss to say now what happens
to this prohibition against the supply of Iiquor to the Native popula
tion-is it to stand or is it not to stand? Is it operative or is it not
operative? And the same applies with regard to the other provisions.
Mr. President, it may well be that it was by reason of this argument
this demonstration-on our part, or for other reasons as well, that the
Applicants have now sought to introduce the qualification into their
norm by including this protection, not compulsion, formula.
I have already demonstrated, Mr. President, that the protection idea
and the compulsion idea are not mutually exclusive and this appears
with particular clarity from sorne of these provisions to which 1 have just
referred. So, for instance, the mandate provision regarding intoxicating
liquor, regarding Native land and regarding traffic in arms and ammuni
tion, although ali ofthem were intended for the protection of the Natives,
clearly involve com_Pulsionand they involve compulsion both in respect
of the Natives and m respect of other groups. A Native is not allowed to
purchase intoxicating liquor however much he may want to purchase it;
that is compulsion upon him, not protection only; it may serve the
purpose of protection but it entails compulsion. Conversely, the members
of the other groups were not pcrmitted to sell liquor to the Natives
however pleasant and profitable that might have been to them or might
have appeared to them. They were not even allowed to give liquor to the
Natives. And the same considerations would doubtless apply to the sale
of arms and ammunition, to protection in regard to Native land, and so
forth. The compulsion element applies both in respect of the Natives
and in respect of the other elements of the population.
ln regard to the minorities treaties to which we have referred and
from the provisions of which I have read extracts to the Court, there
again it will be evident that those provisions necessarily entailed a
measure of compulsion. The majority was compelled to tolerate the
institutions of the minority whether the majority liked it or not-the
majority was compelled even to expcnd public funds for the maintenance
of those institutions of the minority, and the majority was prevented
by compulsion from sharing in those amenities-the amenities specially
provided for the minority.
So, Mr. President, again one has demonstration of the impossibility
of applying this criterion of "protection, not compulsion'', and of keeping
the two concepts separa te. It is, therefore, I\Ir. President, apparent that
even on this revised formulation of the Applicants, the acceptance of
the Applicants' norm would stiJl involve a reversai of sorne of the basic
principles of the mandates system. There would still, according to their SOUTH WEST AFRICA
contention, be a general prohibition against differentlation on a group
basis but subject only to the exception of "protection, not compulsion".
The Applicants do not show, Mr. President, when and by what legal
process such a complete reversai came about-how something which was
right throughout the mandates system, something which was legally
required of the mandatory, now becomes wrong-something which, as a
matter of law, is not permitted to the Mandatory at ail. This aspect
again demonstrates a matter to which I referred before, and that is the
distinction between the situation we have here and the situation in the
Brown case in America on the question of public education-a case to
which my learned friend referred and upon which he relies very heavily.
In the Brown case we have a legal norm which requires the equal protec
tion of the laws for everybod y; that norm remained unaltered ali the
time. The norm did not contain any prescription of method by which
equality was to be attained. It did not say that there was to be segrega
tion or integration between members of varions racial groups, in schools,
in other institutions or in residential facilities or what-have-you. Such
details were to be determined by a process of application-the norm-it
simply stated this princip le of equality: equal protection of the laws.
As a matter of application the Court found in 1950 that facts bad changed
whereas a differentiai system could be regarded as being adequate com
pliance with the norm in former years and in the circumstances which
then obtained, a differentiai system in the particular circumstances of
America especially in the light of the development of public education
in America, and having regard to the view which the Court took of the
psychological situation, could no longer comply with the norm, and,
therefore, the Court gave judgment accordingly. It gave effect to its
consideration of an altered circumstance of fact, and there was no need for
it to import any change or alteration into the legal norm at aiL The legal
nonn remains the same, but the facts have changed. The result of applica
tion of the norm to the facts is nowa different one from what it was before.
In regard to South \Vest Africa we have an entirely different position.
We have the position that the very norm, as embodied in the Mandate
itself and in the mandates system, contains within itself certain pro
visions which required differentiation, which required it of the Mandatory
and, in other respects, contemplated and expected it of the Mandatory.
Therefore, Mr. President, in order to arrive at this completely opposite
result, for which the Applicants now contend, there would have had to
be a change in the norm itself. That is the major difference between this
case and the Brown case, and the Applicants have not been able to show
any recognized legal process by which a change in the norm itself could
have come about. It may weil be that in certain quarters it is thought
that the underlying philosophy which went into that norm has become
antiquated, and that that ought to be changed and reversed. That may
well be the view held by certain persons. 1t is quite obviously a matter
on which there could be differences of opinion, in so far as application to
particular circumstances is concerned, but that is no basis, Mr. President,
for coming tothis Court and saying to the Court that it must now regard
the norm as having changed. There is no legal principle or process, to
my knowledge, which would justify such a conclusion.
Mr. President, in regard to our attitude in the Rejoinder concerning
the norm as formulated in the Reply, the Applicants said the following
in the oral argument: ARGU:~>ŒNT OF MR. DE VILLIERS
although Respondent refers to this basic minimum standard
as a 'so-called' or as an 'alleged' norm, no serious attempt is made
by Respondent to deny the existence per se of the standards relied
upon by Applicants. Rather, Respondent appears to content itself
with attempting to demonstrate that the norm which we have
labelled non-discrimination or non-separation does not existas part
of the Mandate." (P. 261, supra.)
\Vhen we analyse this contention, Mr. President, it would seem to com
prise two independent submissions. The first one is that Respondent
assertedly did not dispute that there existed a legal norm, as defined by
Applicants, existing independently of the Mandate. The second is that
Respondent assertedly did not dispute the existence of a generally
accepted international standard, whatever its legal effect might be, pos
sessing the content of Applicants' alleged norm. Those seem to be the
two elements comprised in this contention-that we did not deny the
existence of a norm outside of the Mandate, nor of the existence of a
standard outside of the Mandate. In our submission, in both respects the
Applicants attribute tous something which is not justified, as will be
shown.
As far as the existence of a legal norm, arising outside the Mandate
is concerned, we said in our Rejoinder, V, page 140, that this Court
would not have jurisdiction to adjudicate upon alleged breaches of such
a norm. The proposition is perfectly clear: the Court is asked to adjudi
cate on the interpretation and application of the provisions of the
Mandate, not upon the interpretation or the application of any norm
existing independently of the Mandate, or alleged to have come into
existence independently of the Mandate.
Secondly .. we said that, in any event, none of the recognized sources
of international law had-
"... given rise to any 'norm of non-discrimination or non-separa
tion' as definedby Applicants, which would entait that any differen
tiation on the basis of group membership, however beneficia! such
differentiation might be in intent or application, would be illegal".
(V, p. qo.)
We made it perfectly clear, Mr. President, that, in our submission, no
such unqualified norm had arisen through legal processes of which we
were a'vare. Now, the correctness of that attitude on our part is borne
out by the very fact that the Applicants have found it necessary in these
Oral Proceedings to qualify. or amend, the norm, as originally pro
pounded. Moreover, Mr. President, we showed that no such norm became
binding on the Respondent by Respondent's consent to any convention.
\Ve indicated that the large number of the conventions, resolutions, and
so on, referred to by the Applicants were matters to which the Re
spondent was never said to be a party, and to which, in fact, the Respon
dent never was a party. Only two instruments feil to which the Respon
dent 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 dealt with these in the Rejoinder,
V, pages IJO-IJJ, where we indicated that the provisions of those instru
ments were not such that it could be said that Respondent had ever
consented to a norm, as was propounded and advanced by the Appli
cants. SOUTH WEST AFRICA
As regards other possible sources of law, we pointed out that, even if
it might be possible to say that a norm, as relied upon by the Applicants,
had evolved over the past years in international society generally, or as
between certain States, then such a norm would not be binding on
Respondent, inasmuch as the basic principles of international law involve
that legal rules are not enforceable against States which, during the
period of the coming into general acceptance of the rules in question,
openly and consistently made known their dissent therefrom. That we
deal with in the Rcjoinder, V, pages 140-qr, and reference was made to
authority for this proposition, namely the Fisheries case, and an article
bv the honourable Member of the Court, Sir Gerald Fitzmaurice. The
rule is. in other words, that if a new rule of international law cornes
about over a certain period of time, it is not binding upon aState which
openly and consistently made known its dissent from it. This principle,
Mr. President, would be of equal application to the Applicants' amended
norm to the extent to which it may still be said to embody an objectively
determinable obligation, which ties the hands of the Mandatory as far
as questions of method in this regard are concerned.
Let me make it clear, Mr. President, that we see in this norm, which
Applicants attempt to foist upon us, a prescription of a method of
dealing with difficult situations with a view to achieving generally
desired objectives and principles-objectives and principles desired and
subscribed toby the Respondent Government, as much as by anybody
else. The essential difference, however, between the Respondent Govern
ment and others, in this respect, centres upon questions of mcthod, and,
in so far as there may have been attempts to formulate a legal norm by
convention between certain States, dealing with such questions of
method and prescribing a method for indiscriminate application wherever
a problem of this sort may arise, Respondent has consistcntly made
known its dissent from such attempts. That does not mean that any of
the underlying ideas of equity, morality, justice, human values, human
rights, and so forth, which underlie the attempts to formulate a norm of
this kind, are not agreed to or shared by the Respondent. The very
opposite applies. The difference is essentially a difference of method, and
we submit very clearly that by no process of law has any legal norm come
into existence which binds the Respondent as far as that question of
method is concerned.
The next question which arises, Mr. President, is have the Applicants
established, independentlv of this norm of non-separation, the existence
of any generally accepted canons of good govemment? As 1 indicated
before, it is not clear to us whether the Applicants' case rests entirely
on this norm as being a distillation from all the other norms and standards
upon which they rely, or whether they also rely upon general!y accepted
standards existing independently of this particular norm. We shall deal
with the matter further on the assumption that they do rely indepen
dently, or additionally, or in the alternative on such undefined general
standards, or canons, or good government, and we shall enquire to
what extent they exist and can be said to assist the Applicants' case,
and what their content is.
Mr. President, in the course of indicating what they conceive to be
legal norms, as distinct from generally acceptedstandards, the Applicants
said the following:
"Legal principles and norms ... are of course derived from and re- ARGUMEXT OF MR. DE VILLIERS
fiect generally accepted standards of social behaviour." (P. 258,
supra.)
The Applicants proceeded to argue that, while courts of law accord
greatcr weight to sorne sources of law than others, therc is, nevertheless,
such a close relationship between the Applicants' legal norms and stan
dards that the Court cannot make a conceptual distinction between
them. Thus theApplicantssaid, in theverbatim record at page 258, supra:
''... it is true that sorne sources of the law are ... accorded great er weight
than others, ... ",but later on the same page they said:
"It is not in the nature of the judicial process that courts make a
conceptual distinction between legal norms on the one hand and
standards on the other, from which such legal norms are derived
and which they reflect."
In the same record, at page 247, Sitpra, the Applicants told us that
"the standards ... are of ... a political, moral and scientifi.ccharacter", and
the Applicants further contended that these legal norms and standards
are said to enjoy universal acceptance.
Now, Mr. President, in considering those contentions we would first
like to refer to what we submit is an entirely illogical distinction which
is drawn in this respect by the Applicants regarding the application of
their standards and norms to this case. In order to prove universai accep
tance of these standards, the Applicants refer, amongst others, to the
views, 1 emph'!size the word views, of the governments of varions States,
and they also rely on so-called standards laid clown by United Nations
agencies. They did soin the Reply, and they did so again in these Oral
Proceedings. In the latter respect 1 can refer to the verbatim record a't
page 247, supra. But it is curions to note, .Mr.President, that whilst the
Applicants refer to views of varions governments for the purpose of esta~~
lishing their norms or standards, they entirely deny the relevance of the
"practices or policies" of governments in this respect. They deny the
relevance of the "practices or policies" of, "any sovereign State or
society other than that which is [the] subject of complaint in the cases
at bar". These were the words which they used according to the verbatim
record at page rrg, supra.
In other words, they ask the Court to find generally accepted standards
and norms of universal application and acceptance, of universal accep
tance, that is the phrase used by them, as norms which ought to govem
also the Respondent's conduct in this case, but in order to arrive at those,
and in order to establish that they are generally or universally accepted,
they refer only to the views of States and they say that the practices
or policies of States are entirely irrelevant.
Now we naturally accept, Mr. President, that the Court is not called
upon to pass judgment on the policies or practices of other governments,
but it is very difficult to appreciate the Applicants' argument that the
views of the other governments are important even to the extent of
creating standards which have legal force, and that the practices or
policies of governments are irrelevant matters. This is the Applicants'
attitude, and adroits of no doubt. I refer to the verbatim record of r8
March, at page ng, supra, where they said the following:
"The Applicants are aware, and do not suggest otherwise, that
decisions of domestic tribunats are peculiarly suited to, and reftect,
conditions and traditions particular to their own societies. Such SOUTH WEST AFRICA
conditions and traditions may be multi-cultural. ll}Ulti-Iingual, or
multi-racial, or mono-cultural, mono-lingual, or mono-racial, or ali
or any of these, and more, in combination. The Applicants do not
intend to comment upon, nor do they believe that this honourable
Court would wish to enquire into, much less pass upon, practices
or policies which regulate the affairs of any sovereign State or so
ciet:y,other than that which is subject of complaint in the cases at
bar.
They continued, l\Ir. President (p. 120):
"\\'hether Canada or India, merely as random examples, are or are
not multi-racial or mono-cultural societies, or whether they maintain
or should maintain or should not maintain, for example, separate
schools for separate cultural or linguistic groups is unknown to the
Applicants and is none of their concern."
And the same attitude we find elsewhere. We find that in the Reply the
Applicant set out certain propositions regarding education which, they
said, had been "determined" (that was the word they nsed), by political
organs of the United Nations. That is in the Reply, IV, at page 398.
These determinations were also described as "standards", in the Reply
at page 399. or as "United Nations' requirements"-these were the very
words used by the Applicants themselves in the Reply at page 401,
paragraph (b). And it was the Applicants' theme that al!, or many,
States had complied with such "requirements", but not the Respondent,
of course. We answered in our Rejoinder, VI, page 161, that the Respon
dent was not obliged to comply with the said "requirements". We said
that, inter alia.Now in these Oral Proceedings my learned friend, Mr.
Gross, refers to that answer on our part relating to "requirements",
and he described the word "reqnirements" as "... this is the characterisa
tion in the Rejoinder". He said that, according to the verbatim record
at page 266, supra. He seems to have forgotten, Mr. President, that the
App1icants themselves, as I have just demonstrated, nsed that expres
sion. And he then proceeds as follows, according to the same page of the
verbatim record:
"The implication that Respondent has adduced seems to be that
the United Nations findings or conclusions to which 1 have referred
are asserted by the Applicants to impose specifie legal reqnirements.
This is gratuitous interpretation on Respondent's part. The Reply
makes it explicitly clear that the conclusions of the United Nations
agencics are referred to as indicative of 'the purposes and principles
of administration of dependent territories'."
M:r.President, in our Rejoinder, VI, page r61, we stated that we would
not attempt to establish to what extent varions States have complied
with "reqnirements" which had been laid down by United Nations
organs. And we also stated that we had doubts as to the propriety of
any such an enquiry on the Respondent's part. We stated in that regard,
in the Rejoinder, VI, page r61, that-
"inquiry by it [that is by Respondent) asto compliance or otherwise
by other Governments with requirements or standards which have
been laid down by United Nations organs in respect of territories
administered by such Govemments must be open to serions donbt".
Now it is quite obvious what we intended to convey in this passage, ARGUMEXT OF MR. DE VILLIERS
namely that it would be an invidious task to establish whether, and to
what extent, other governments had complied with what the United Na
tions organs required them to do. That was what we described as what
would be an invidious task on our part. Now we find, Mr. President, that
the Applicants have seized on this passage to repeat their view that "poli
cies or practices" in terri tories, other than South West Africa, are no con
cern ofthe Court. Thus they say "The Applicants fully concur''. (This is in
the verbatim record at p. z66, supra.) I break off there for a moment.
What they purport to concur in is this statement by the Respondent
which 1 have just read regarding the propriety of examining other States'
compliance with "United Nations requircmcnts" .·And they then say that,
in their submission:
"... this honourable Court may not appropriately be requested to
consider, or pass upon, or enquire into, policies or practices regu
lating the affairs of any State, territory or society other than the
territory in question in this proceeding. It has not been, and it is
not now, the intention of the Applicants to suggest otherwise, and
that of course was not the purpose for which reference was made in
the Reply to the findings of the United Nations agencies."
Now, Mr. President, this attitude on the part of the Applicants is a
very curions and a most illogical one, in our submission, and it shows up,
at the same time the artificiality and the untenability of their contentions
regarding so-called norms and standards. To begin with, Mr. President,
it is hardly logical for the Applicants to rely on the views of governments
as to the basis of their norms, but to argue at the same time, that such
governments' policies are irrelevant. If we may use the Applicants'
example again-a random example of Canada or India-it does not seem
to us to make sense to say that it is quite irrelevant whether Canada or
India has separate schools for separate cultural or linguistic groups, or
whether those countries should or should not have separa te schools (that
is what they said in the verbatim record at p. I20, sxtpra), and, further
more, that such matters are none of the Applicants' concern, but to say,
on the other hand, that Respondent should be condemned purely because
it does not comply with the views of such Governrnents-no matter on
what grounds, or motivations, or in what circumstances such views were
arrived at in a particular country.
Norms and standards are, therefore, according to the Applicants to be
deterrnined with reference to what certain countries have said, say,
about South West Africa or about policies in South Africa (that is the
tenor of most of the statements they quoted), without any reference to the
question of the state of knowledge of the particular speaker of the sub
ject he was talking about; of the factual premise which he bad in mind
when he made the particular statement; of his sources of information;
or of the particular reason why he made the particular statement on the
particular occasion. Views of countries, the Applicants say, are to be
determinative of the norms or the standards to be applied by the Respon
dent and to be enforced upon it by this Court, but not the actual practices
of governments in relation to similar problems to those confronting the
Respondent.
I tis furtherrnore, Mr. President, not merely a question of the argument
being an illogical one. What is more serions is this. They are saying, in
effect,that the Court must accept, and act on, the views of governrnents68o SOUTH WEST AFRICA
without conducting an enquiry of its own in regard thereto-in other
words, thè Court must blindly adopt the views expressed by these others.
It must be this very expression of.the views of the others that must be
the basis on which the Court is to conclude that these standards exist
in modern society. Those standards are now to be applied by the Court.
That is what the contention amounts to. ·
Furthermore, their attitude is also that the Court must adopt the
findings of, or the standards laid down, by United Nations agencies,
and again, l\Ir. President, without any enquiry into the conditions and
circumstances of the particular countries with reference to which those
findings were made, and those standards were laid down, because enquiry
into what happens in those countries, into the practices of such countries
there, into the factual conditions there, is taboo. AU that this Court is
to consider is what representatives of other countrics said and what was
said and found by organs of the United Nations. This also, Mr. President,
is tantamount to saying that the Court must blindly adopt standards
laid down by others. In effect, therefore, this Court must abdicate its
functionsin favour of the conclusions arrived at, and the views expressed,
by extraneous bodies.
[Public hearing of 26 April I965]
Mr. President and honourable Members, in the argument submitted
to the Court so far on the question of the legal basis for adjudication
upon the provisions of Article 2, paragraph 2, we submit that we have
established the following proposition.
Firstly,that the Court can adjudge on alleged contravention of Article
2, paragraph 2,if at ail, only on the basis of a determination of good or
bad faith, in the sense of pursuing an authorized or an unauthorized pur·
pose, or objective.
Secondly, that this question falls to be determined by enquiring into
and weighing up ali the relevant facts.
Thirdly, that the Applicants' attempts to rely on an objective legal
norm have failed.
In that regard we have pointed out that in their attempts to establish
such a norm the Applicants have been forced to amend their own formula
tion of the suggested norm in such a way that the discretionary element
in the Respondent's powers is, indeed, not eliminated. For that reason
alone they have failed to establish an objective legal norm as they set out
to do.
More important than that, Mr. President, they have been unable,
in our submission, to show that such a norm has, by any known and
accepted principle of law, come into existence so as to be legally en
forceable against the Respondent at ali and, in particular, so as to form
part of the Mandate.
The reasons we have given why there has not been established any
legal basis for the alleged norm of non-differentiation apply, in our sub
mission, equally to undefined legal norms, or undefined current standards,
which allegedly possess legal effect; in other words, to any suggested
legal rules imposing obligations on Respondent conceming the methods
to be employed in administering the Territory.
We submit not only that the particular norm of non-differentiation has
not been established, but also that no other norms or standards possessing ARGUMENT OF MR. DE VILLIERS 681
legal effect, as legal rules, and having any bearing whatsoever on the
manner of administering the Territory have been established.
However, Mr. President, to say that there cannot be any legally effec
tive,or enforceable, norms or standards does not in our submission mean,
and does not in logic mean, that there do not exist any standards which,
although they lack in legal effect, are nevertheless widely accepted, or
applied, in practice. ln principle and in practice one does find many
practices, policies, or theories of government, applied by States, or ad
vanced or propagated by politicians, experts, scientists, moralists, or
the like, but which nevertheless do not possess any legal force in inter
national law.
Indeed, Mr. President, one finds this basic distinction in aU spheres of
life. Many canons of behaviour are not legally enforceable but derive
their effect, if any, from moral or persuasive considerations. For the sake
of convenience, we drew a distinction in our Rejoinder, V, at pages I66-
I6J, between these two concepts: on the one hand, norms or standards
which possess legal effect and, on the other hand, norms, canons or
standards which do not possess such legal effect. For purposes of con
venience we called those of the first class, norms, and those of the second
class, standards. The terminology in itself, Mr. President, is, of course,
not important, the importance lies in the distinction asto concept. We
could as easily have used the term legal rules, on the one hand, as against
non-legal precepts, on the other. For the sake of convenience, we spoke
of norms to indicate binding legal rules, and of standards to indicate
the other kind of precepts which have no binding force in law.
Consequently, Mr. President, when a particular rule, or canon is in
issue, the determination of the question whether it constitutes a norm
or a standard, inour usage of the terms, really involves an enquiry whether
or not it qualifies as a rule or principle of international law, to be applied
by this Court in terms of Article 38 of the Statute. That is really what
it amounts to.
Ifit is a norm, according to this usage of terms, it must qualify as a
rule, or principle, of international law, in one of the methods envisaged
in Article 38 of the Statute. If not, it can, at most, be a standard.
Mr. President, we would have thought that this distinction between,
on the one hand, rules which possess legal effect, and, on the other, those
which do not, was an elemental and a fundamental one. Yet we :find
that the Applicants refer in their argument to such a distinction as being
"quite unrealistic". That was the phrase used in the verbatim record at
page 258, supra. They said further, at the same page:
"Legal principles and norms, as has been said, are of course derived
from and reflect generally accepted standards of social behaviour.
As 1 have said, experience is the life of the law. Standards are the
sources from which the law derives its application to the human
condition.''
They said, further:
"lt is not in the nature of the judicial process that courts make a
conceptual distinction between legal norms on the one hand and
standards on the other, from which such legal norms are derived
and which they reflect."
Mr. President, it is of course a fundamental consideration that the
only sources of international law which can be applied by this Court are682 SOUTH WEST AFRICA
those laid dO\m by Article 38 of the Statute, namely conventions, inter
national custom, as evidence of general principles accepted as law, and,
thirdly, the general principles of law recognized by civilized nations.
So, if a standard has attained the status of a legal norm in terms of this
Article, the Respondent, for convenience, caUs it a norm. If it bas not,
we call it a standard.
In the Applicants' argument under review they apparently attempt
to establish a further source, or sources, of law, not recognized in Article
38 of the Statute. Or, alternatively, their contention means that this
Court is entitled to apply any standard of behaviour or conduct it sees
fit, whether or not such a standard falls under Article 38 of the Statute.
Needless to say, Mr. President, the Applicants have been unable to
produce any authority, and we have been unable to find any which would
afford any support for such a proposition, as I shall demonstrate more
in a moment. In principle it cannot in any way be justified, either the legal
precept is one of those contemplated in Article 38 of the Statute, or that
precept is not a legal precept at ali.
It follows then, Mr. President, in our submission, that there exists a
clear and a well-recognized distinction between what we call norms and
standards, that is, as matters of concept, apart from the question of
terminology. The Applicants' deniai of the validity of this distinction,
in so far as the deniai is comprehensible at aU, must, in our submission,
therefore also fail.
ln their attempted rebuttal of this distinction which we draw, the
Applicants referred to certain judicial decisions, about which they said
the following:
"... Applicants refer to judicial decisions in which concepts of the
sort described by Respondent as standards have been applied, not
for the purpose of showing good or bad faith, but rather for the pur
pose of measuring and limiting the discretionary powers of govern
mental authorities on the basis of objectively ascertained and deter
minable standards." (P. 258, supra.)
Mr. President, in our submission, this whole line of argument displays
a basic confusion of thought on the part of the Applicants, which becomes
ail the more apparent when we have regard to the actual decisions to
which they refer.
The distinction between norms and standards, in the way in which
we draw it-in the way in which we use these terms---does not lie in the
content of the canons, or precepts, concerned; it lies in their legal effect.
We expressly stated this in the Rejoinder, V, at page 167, and this the
Applicants indeed acknowledge, according to the verbatim record at
page zsB. Sftpra.
The dispute between the Parties may, therefore, be said to relate to
the method, or procedure, or the principle, whereby a rule, or a canon,
attains the status of a legally enforceable rule of law, rather than as a
theory, or a canon, of a purely moral, political, or scientifi.cnature, or the
like. Consequent! y it cannot avail the Applicants to point to the fact that
courts have applied precepts of the same content as, or analogous to,
those which are under consideration here. The important question is
on what legal basis did the courts apply those precepts.
The Applicants, in order to establish their argument, would have togo
so far as to show that these rules attained their legal character by sorne ARGUMENT OF MR. DE VILLIERS
method other than that contemplated in Article 38 of the Statu te:
in other words, that they were applied as principles of law by courts
merely because they were standards--ta use our terminology--despite the
fact that they had not been given legal force by any of the processes
contemplated in Article 38. That is what the Applicants would have to
establish by these authorities and, needless to say, they have failed to
do so.
If we consider first of aUthe decision in the Corfu Channel case, referred
to by my learned friends in the verbatim record at page 258, supra, we
find, Mr. President, that what the Court applied there were general
principles of international law, principles falling eitherunder paragraph
(b) or paragraph (c) of subsection (r) of Article 38: in other words, as
being either international custom, accepted as law, or general principles
of law recognized by civilized nations. The very passages from the Judg
ment and the opinions quoted by my learned friends show that the
Court was dealing with the question whether certain conduct could or
could not be said to constitute, in law, an international delinquency. That
was the question before the Court; the Court did not determine whether
standards not possessing the force of law could provide an answer to
the question before it. The Court had to decide what principles of law
had received acceptance under either of the two paragraphs of Article
38 (r)to which 1 have referred.
Secondly, in the case of Louisiana ex rel. Francis v. Resweber, quoted
at the same page of the verbatim record, the American Supreme Court
applied the provisions of the United States Constitution. The particular
requirement of the Constitution applied in that case was that of due
process, and the standards of decency referred toby the Court in applying
that requirement of the Constitution related merely to the question of
application, in other words, of evaluation of the facts to which this re
quirement of the Constitution had to be applied in the particular case.
Then, Mr. President, my learned friends placed particular reliance on
a number of decisions in regard to the principles of "deniai of justice".
They are referred to in the verbatim record at pages 254-255, and at page
259, supra. These principles, in our submission, quite clearly arose from
custom accepted as law, or, in sorne instances, also from specifie conven
tions, or, in sorne instances, from a combination of these.n this regard we
may point out in passing that the content of the relevant rules is also
wrongly stated by the Applicants. But, inasmuch as the present inquiry
relates to the method or the principle by which a rule attains the status
of a rule of law, and not to the question of content, I shall not at the mo
ment pursue that matter, I shall return toit at a later stage. Ali 1 wish
to point out at the moment is that these judicial authorities, relied upon
by the Applicants and referred toby them in this regard, do not support
them in the least. ln each case what the Court applied was something
which the law required it to apply, the law being either customary law
accepted as binding, general principles of international law accepted
as binding, general principles applied by civilized nations, or principles
laid down or agreed upon in conventions, or, finally, principles laid down
in a particular Statute which the particular Court had to apply.
Apart from these judicial authorities the Applicants also referred to
certain statements by Professer Quincy Wright, and they said in this
regard, in the verbatim record at page 255, supra:
"... the concept of standards capable of guiding policy and action SOUTH \\'EST AFRICA
in the mandated territories, and providing a basis upon which
the conduct of the mandatory might be judged, has been analysed
in sorne detail by ... Professor Wright ... ".
Now, Mr. President, in the Rejoinder, V, at pages r68-r69, we dealt
with a similar argument which had been raised in the Reply. That argu
ment had been to the effect that the Permanent Mandates Commission
had established certain norms and standards, capable of serving as ob
jective yardsticks, to be applied by the Court in adjudging Respondent's
policies.In the Rejoinder we pointed out in that regard that the Per
manent Mandates Commission had a twofold function: one of supervision,
on the one hand, and one of co-operation with mandatories, on the other.
And we pointed out that the same Professor Wright, in the same work
referred toby the Applicants, drew this distinction in a passage which we
quote in the Rejoinder, V, at page r69. It reads as follows:
"In supervising the mandates [that is the first of these two func
tions] the Commission has felt obliged to limit its criticism by law.
It does not censure the mandatory unless the Iatter's orders or their
application are in definite conflict with the mandate or other au
thoritative text, but if such a conftict is reported by the Commission
and the report is adopted by the Council the mandatory is bound to
recognize it. 1t becomes an authoritative interpretation of the latter's
obligations ...
In co-operating with the mandatories, however [that is the other
aspect of the function], though the League's powers are more limi
ted, the scope of its suggestions is infmitely wider. It has not con
sidered itself limited authoritative documents but has formulated
standards of good administration from the widest sources, and sug
gested whatever practica1 steps it deems expedient to give them
effect. Such suggestions, however, even when indorsed by the Conn
cil, never have more than the character of advice. The mandatory is
freeto differ from them, though if based on an adequate under
standing of the situation he will do weil to consider them."
We further emphasize in the Rejoinder, Mr. President-V, at pages
r69-r7o--that in exercising its functions, and particularly this last
mentioned function of co-operating with the Mandatories, the Per
manent Mandates Commission could not, and in fact did not, purport to
create legal rules binding on Mandatories. This appears very clearly
from the work of Professor Wright himself, and, in particular, from this
passage I have just read.
In addition to other references which we give in the Rejoinder we
may also, respectfully, invite the Court's attention to a further passage
in Wright, the same work, at page 220, which reads as follows:
"The Commission ... has found it necessary to establislt certain
standards for its own use in full realization that these are in no sense
binding but subject to modification by experience. " (Mandates Under
the League of Nations.)
--Mr. President, one would say, w:ith submission and respect, that that
is, after aU, the very essence of the concept of a standard as opposed to
a norm. A standard is, from its very nature, something of the nature of
current theory-a current point of view-in respect of which complete
agreement has not been attained. Complete agreement or unanimity ARGUMENT OF MR. DE VILLIERS 685
might be sought about it but it might in many cases never be attained
for the simple reason that, in sorne respects, that standard might be
wrong, or erroneous, thus it rnight require modification, or qualification,
as experience teaches more about it or as other facets of the particular
subject come to light and show their effect. Therefore, we find it very
properly stressed by the leamed author that the standards used by the
Permanent Mandates Commission were recognized as being "in no sense
binding but subject to modification by experience".
In the passages from Professor Quincy Wright's book upon which
my leamed friends now rely, the leamed author dealt with the establish
ment of these self-same standards of colonial administration by the
League organs. Consequently, Mr. President, it is quite clear that there
could be no suggestion that these standards would be legally binding
on mandatories, or that they could be enforced by the Court. Such a
suggestion would have no basis in law, nor was it in the contemplation
of the leamed author. Indeed, the very passage from which the Applicants
quote according to the verbatim record at page 256, supra, shows that
the converse is the position. The leamed author in that passage (it is at
pp. rg2-193 of his work), distinguishes between two methods of govem
mental action which, he says, may be defined as, on the one hand,
legalistic, and, on the other, administrative. I quote from what he says
at page rg2:
"The first [that is the legalistic method) lays dawn general rules
and enforces them ordinarily through the legislature and the Courts.
The second declares general policies and carries them out ordinarily
through the executive and the administration. Clearly, the League's
relation to the mandatories cannat be defined as exclusively in either
of these categories. The League gives validity to general rules by con
fi.rming and interpreting the mandates and judges the acts of the
mandatories according to their conformity with thcse rules, possibly
in extreme cases sanctioning its judgment by transferring a man-·
date, but at the same time it gives general advice on policy and criti
cizes the activity of the mandatory according ta its results. The
fi.rst type of activity is mainly performed through the Council and
the Permanent Court of International Justice; the second through
the Council and the Permanent Mandates Commission, but the line
of division is not strict."
It is, therefore, quite clear, Mr. President, that in sa far as the Iegalistic
method is concemed, with reference to which the author says that the
fi.rst type of activity is performed mainly through the Council and the
Permanent Court of International Justice, it is confined to the case where
the League-
"... gives validityto general rules by confirming and interpreting
the mandates and judges the acts of the mandatories according
to their conformity with these rules ... ".
The function of establishing and applying standards, on the other hand,
relates pure!y to the administrative supervisory authority; in otherwords,
to cases where the League acts through the Council and the Permanent
Mandates Commission. That is where, in the words of the author, the
League "gives general advice on policy and criticizes the activity of the
mandatory according toits results".686 SOUTH WEST AFRICA
It follows, Mr. President, that the following statement in the verbatim
record at page 256, supra, is wholly unjustifi.ed:
"... the leamed author stresses the power of the Court to judge the
administration in mandated areas in the light of such standards,
whlch includes references to matters within the scope of Article 2,
paragraph 2,of the Mandate ... ".
Mr. President, it will be evident not only that thls statement reftects
something not stated by Professor Wright, but that it is directly in con
fj.ictwith what he states, as 1 have just demonstrated. It is not surprising,
therefore, that my learned friends give no reference whatsoever in their
argument on the pleadings or in the verbatim record for this version of
what was allegedly stressed by the learned author.
lt follows then, in our submission, that all authorities, judicial and
otherwise, fail to support the Applicants' argument that standards can
be regarded as legally binding perse, even though they have not been con
stituted rules or principles of law by the ordinary processes contemplated
by Article 38 of the Statute. Indeed, Mr. President, the authorities con
firm that the opposite is the true position, namely that standards perse
can have no legally binding effect and that they can only become binding
by operation of the ordinary contemplated processes.
Now, 1 indicated a few minutes ago that the content of the principles
regarding deniai of justice to aliens, relied upon so strongly by my
learned friends, is strîctly speaking not relevant to this enquiry, which
is concerned only with the method or the princip les by whlch rules attain
legal effect. But an examination thereof may nevertheless be revealing,
Mr. President, to show what, in fact, the content of these principles re
garding deniai of justice to aliens is, and show that, in that regard, too,
the representation of the Applicants is without any substance. The Appli
cants introduced this subject in support of their contention which we
find stated in the verbatim record at page 254, supra, and which reads
"the concept of discretionary powers limited by legal norms is well known
to international judicial tribunals".
They went on to state, on the next page-
"The discretionary powers of governments indeed are very wide
with respect to· allens living within their borders, but they are
lirnitedby international norms, rather than by any asserted test of
good faith or mens rea."
Now Mr. President, we have already dealt with the so-called "minimum
international standards" referred to in this extract, in order to show that,
contrary to my leamed friends' contention, the authors of the mandates
system were not familiar with the concept of judicial review of the in
ternai practices and policies of States in accordance with such standards.
That was dealt with particularly by my learned friend, Mr. Grosskopf,
in his address to this Court sorne time ago. It remains to consider how
ever, what role is to be assigned to these standards in the evaluation of
the treatment of aliens by any given State; in other words, what exactly
is the content and the legal effect of these standards? We are prepared
to accept in that regard, for purposes of argument, the existence and
the applicability of the so-called "minimum international standards".
We are also prepared to accept for purposes of argument that customary
international law has now evolved to a stage where States may be said
to be legally obliged to comply with such standards, but what we do ARGUMENT OF MR. DE VILLIERS 68]
dispute is that these standards are to be equated with legal norms of
an exact content, capable of precise and objective application to the
conduct of a State and its organs, as distinct from merely providing a
means of testing whether a discretionary function in that regard has
been honestly and legally exercised. If these standards were indeed in
tended to be precise, legal or international norms of the kind I have
just referred to, then any treatment of an alien by a State in conflict
with these precise requirements would obviously be illegal and such a
result would follow quite independently of the good or bad faith of the
State concerned.
It is evident that the Applicants have represented these particular
standards in this light. In the verbatim record at page 259, supra, we
find that the Applicants state the following-
"The use of standards in the sense in which Applicants have
viewed that concept, for purposes of measuring legal limits upon
discretionary powers in objectively determinable ways rather than
for the purpose of judging good or bad faith, also is found further in
the deniai of justice cases ... "
The Applicants make it perfectly clear that they say that we are dealing
here with precise norms capable of objective application, rather than
with standards which may assist in an enquiry for the purpose of judging
good or bad faith.
The authorîties, however, Mr. President, including those relied upon
by the Applicants themselves, in our submission make it quite clear
that this representation by the Applicants is entirely wrong, and that
the opposite is the true position.
In one of the decisions quoted by the Applicants, that of the General
Claims Commission in the United States (Roberts Claim) v. Mexico, which
was decided in 1927, reference was indeed made to the test "... whether
aliens aretreated in accordance with ordinary standards of civilization",
but the Commission did not say that such standards constituted precise
legal norms of the kind suggested by the Applicants, and if regard is had
to other decisions of the Commission in that year, in the previous year
and subsequent! y, it becomes quite clear that that could never have been
the intention of the Commission.
In the previous year there was the celebrated Neer case. There the
Commission also referred to "the test of international standards", but
at the same time indicated explicitly how these standards came into
play. The case was also concerned with alleged deniai of justice to an
alien, and the Commission stated the following (I quote from reports of
International Arbitral Awards, Vol. IV, pp. 6r-62):
"The Commission recognizes the difficulty of devising a general
formula for determinîng the boundary between an international
delinquency of this type and an unsatisfactory use of power included
in national sovereignty. In rgro John Bassett Moore observed that
he did 'not consider it to be practicable to lay down in advance pre
ciseand unyielding formulas by which the question of a deniai of
justicemay in every instance be determined', [1 leave out the ref
erence]and in 1923 De Lapradelle and Politis stated that the evasive
and complex character of a deniai of justice seems to defy any defini
tion [I again omit the reference and sorne words which follow] ...
Without attempting to announce a precise formula, it is in the opin-688 SOUTH WEST AFRICA
ion of the Commission possible to go a little further than the authors
quoted, and to hold (first) that the propriety of govemmental acts
should be putto the test ofinternational standards, and (second) that
the treatment of an allen, in order to constitute an international de
linquency, should amount to an outrage, to bad faith, to wilful ne
glect of duty, or to an insufficiency of governmental action so far
short of international standards that every reasonable and impartial
man would readily recognize its insuffi.ciency."
In the next year, Mr. President-in July 1927-there was the Venable
case. That was sorne nine months later than the Roberts case to which
my learned friends referred. There, the Commission again referred to-
"an insuffi.ciencyof governmental action so far short of international
standards that every reasonable and impartial man would readily
recognize its insufficiency".
The reference is to the same work as before, International Arbitral
Awards, Volume IV, page 229.
We may also in this regard refer to the attitude maintained by the
British Government in a certain Brown case, decided in 1923 by the
American and British Claims Tribunal. The British attitude is set out at
page 252 of American and British Claims Arbitration, Report of Fred K.
Nielsen, and I quote the following from that page:
"A decision does not constitute a deniai of justice unless it is
so obviously wrong and unjust that no court could honestly have
arrived at such conclusions."
Then, Mr. President, there is Mr. Alwyn Freeman, an authority quoted
by the Applicants, who was one of the foremost champions of the theory
of "minimum international standards". In the work which my learned
friends cite, International Responsibility of States, he gave an exhaustive
review of international practice and theory regardintr this concept of
deniai of justice to aliens, and he came to the followmg conclusion at
page 330-331:
"It is believed that an analysis of international practice provides
a sounder approach to the problem of mal jugéin connection with
the local law. The principles governing the solution of this problem
may be safely summarized as follows: Although there is unquestion
ably no responsibility for simple or ordinary 'reversible' errors
(i.e., errors which might allow a domestic court of appeals to reverse
the judgment below) clear proof of serious error plus additional
factors in the nature of malice toward the alien-which may be
evidenced by the court 'in consciously misapplying the law or in
declaring the existence of a fact which it had previously recognized
as non existent, or the non existence of a fact which obviously
exists'-or, stated negatively, the absence of good faith, will in
volve the State where the alien's rights are materially prejudiced
thereby. Where it is not possible to establish the influence of cor
ruption, bias or malice upon the outcome of the proceedings
and here it is worth remembering that the psychological motives of
the judge arc absolutely immaterial if the judgment is based upon
law-the State's responsibility may still be engaged wherethedecision
is so erroneous that no court which was composed of competent furists
could honestly have amved at such a decision . .. " ARGUMENT OF MR. DE VILLIERS
It is clear, Mr. President, I submit, from this review of the authorities,
that the Applicants have failed in their attempt to demonstrate that
the discretionary powers of aState are in this particular instance limited
by objective norms. On the contrary, this tapie which they have chosen
to introduce provides, in our submission, a clear illustration of the use
of standards in the sense for which we contend, namely with a view to
providing sorne assistance in an enquiry whether there has been an
abuse of a discretionary function through mala fides. That is, as I shall
point out, exactly the function which, we submit, is to be assigned to
international standards in the enquiry now before the Court, and these
authorities in regard to denial of }ustice provide an example, an illustra
tion, of a similar approach. And that brings us, Mr. President, to the
question of the significance, if any, which can, in our submission, be
attached to standards in the present context-standards in our sense
of the word, as I explained earlier, as distinct from legally binding rules.
I must fust stress that we do not contend that the existence of generally
accepted standards of administration not possessing legal force per se,
is irrelevant to a consideration of the issues before the Court; tliat we
certainly do not contend.
Nevertheless, such a submission is, in effect, attributed to us by my
learped friends when they suggest, both in the Reply and in these
Oral Proceedings, that we contend that Respondent's policy should be
measured according to standards prevailing in rgzo. The reference to
the verbatim proceedings on this point I gave to the Court before in
another context. It is the verbatim record at page z6o, supra. We dealt
withitin thisothercontext in the verbatim record of I3 April, at pages&).
and indicated there that this attitude on the Applicants' part flowed
from a misapprehension of the principles of interpretation, and partic
ularly of the principle of contemporaneity. Ail we said was that the
legal norm to be applied in this case, namely Article 2 (z), was to be
interpreted in accordance with the intent of its authors in rgzo, and
that the meaning of that norm would, therefore, today still be the same
as in rgzo. We did not say that in the application of the norm to facts
the Court must put on blinkers and look at the facts only as they existed
in rgzo; it would obviously have been ridiculous to say so. Similarly,
we did not suggest that, in fulftlling its discretionary function under the
Mandate of promoting ta the utmost, and in formulating its policies with
that purpose in view, the mandatory was to have regard only to facts,
conceptions and attitudes as they existed in rgzo. That would have been
equally ludicrous.
Mr. President, just to mention one or two examples (we take them
from the facts, but they will be more fully dealt with in the later stages
of the proceedings dealing with the facts}: we know, as set out in the
review which we give in our Counter-Memorial, and refer to again in our
Rejoinder, that, on the whole, African Natives in 1920 showed little or
no interest in political development of the kind which they, in fact,
experienced after the Second World War, and are still experiencing at
present. In rgzo little or no interest was shawn in that subject by
African Natives generally, including those in South West Africa. But
the Mandatory could not, in the new circumstances which arose after the
Second World War, when there was an awakening of interest on the part
of African Natives in that regard, retain the same attitude as in 1920
when applying the law to the facts, or in formulating policies with a690 SOUTH WEST AFRICA
view to complying with its obligations; it had to take proper cognizance
of this change in attitudes and conceptions, in arder ta fulfil its discre
tionary function properly.
Sirnilarly, as regards education, in 1920, on the facts we give, there
was little or no interest at all on the part of the masses of the Native
population, but, the position has changed, and today, a Mandatory,
could not maintain the same attitude as was maintained in 1920 because
of the fact of non-interest at that particular time. Its policy would have ta
be adaptcd ta the changed circumstances, and changed attitudes on the
part of the peoples concerned would be part of the changed circumstances.
Similarly, Mr. President, in so far as trends of general opinion have
changed in the natural sciences and, as a consequence, or independently
thereof, also in social and political sciences and in the moral concepts
involved in them, the Mandatory would certainly fail in its discretionary
task if it did not pay proper regard ta such altered conceptions in deciding
upon appropriate policies. If 1 may give an example, Mr. President, very
bluntly but with the greatest deference, if we should assume, for the
sake of argument, that it could be shawn that the general conceptions
in 1920 were ta the effect that African Natives were inherently and
permanently inferior to Europeans, that they would never be able ta
govem the1r own countries satisfactorily, and sa forth, then, surely,
policies can, in modem circumstances, no longer be formulated on the
basis that such conceptions were established and accepted as facts in
our times. Conceptions have changed. 1 am not suggesting that that was
the attitude in 1920, 1 am merely putting it forward as an example.
In sa far as conceptions of that kind have changed, they must, of course,
necessarily be considered by the mandatory in the exercise of its dis
cretion in formulating appropriate policies with a view to fulfùling its
sacred trust.
The extent to which there has been an altered conception, or altered
conceptions, in the relevant scientific respects, will be dealt with by us
in the course of dealing \vith the tacts, and the signiticance which that
may have in the present enquiry will also be dealt with at that par
ticular stage. Ali 1 want to emphasize at the moment is the relevance of
changed attitudes also in those fields, as a matter of principle and a
matter of relevance.
The considerations to which I have just referred, Mr. President, in my
submission, at the same time explain what role can appropriately be
assigned to contemporary standards in the enquiry before the Court.
In our submission, they can afford very valuable guidance ta the Court
in determining whether the Mandatory has or has not honestly applied
its mind ta the discretionary task. The issue before the Court being the
Mandatory's good or bad faith, the existence of currently accepted
standards can most certainly be relevant to that purpose, as we indi
cated in the Rejoinder, V, page 171. But, as we also stressed there, this
is again, by a process of elimination, the only sense in which these stan
dards can be relevant. They may provide relevant material from which
inferences as to Respondent's intentions may be drawn, in the light of
ail the circumstances, in the manner we indicated in the Rejoinder, at
the particular page.
If a Mandatory's policy and conduct should be totally at variance
with concepts of justice, equity and morality currently operative amongst
ali right-thinking persons, there might well be justification for drawing ARGUMENT OF MR. DE VILLIERS 6gr
the inference that something must be wrong, in the sense that the
Mandatory's attitude must be either arbitrary or mala fide, directed at
an unauthorized or improper purpose. That is a technique or method of
argwnent which is regularly employed by courts which have to conduct
an enquiry into questions of good or bad faith on the part of an authority
exercising a discretionary task, and that is the sense in which current
and modern standards become relevant.
The Mandatory's position might amount to this: that it stands alone,
in its concepts of justice, equity and morality, and that it seeks to defend
them in relation to a particular matter when the whole of the reasonably
thinking world differs from it. When the Mandatory is the only one out
of step, there may be a basis for beginning to infer that something must
be wrong on the Mandatory's part, that there must be either an arbitrary
or a mala fide attitude on its part. That demonstrates, Mr. President, the
test of good faith in enquiries of this nature, and, in particular, in the
present enquiry. It can, indeed, constitute a very practical and valuable
check upon the person or the body exercising a discretionary function,
and is not something worthless, or "drained of vitality", as my learned
friend suggested in the verbatim record at page 244, supra, specifically
with reference to this contention on our part. At that page, my leamed
friend went on to say:
"... Respondent's contention that the scope and content of the
obligation entrusted to Respondent in terms of Article 2, para
graph 2, is to be measured by its so-called good or bad faith in the
exercise of discretion Wlder that Article, embodies its own built-in
reductio ad absurdum.
Without any purpose or intimation of comparison, or suggestion
of analogy to facts in the cases at bar, the lesson of history teaches
that the greatest excesses of policy, and the most reprehensible
doctrines, frequently are propounded and executed with professions
of good faith and lofty purpose. Indeed, human experience and ail
of history shows that when sincerity of purpose is carried to unrea
sonable lengths, or improper ends, it is often difficult to distinguish
from obsession." (Pp. 244-245, supra.)
Now, Mr. President, I am pointing out to this Court, with respect,
that once the premise is accepted that a power is limited with reference
to a purpose, as a matter of law, then there can be no such reductio ad
absuràum as my learned friend contended for.
When my learned friend speaks of "the greatest excesses of policy",
and "the most reprehensible doctrines of history", he no doubt has in
mind cases of policies and doctrines applied by miers of sovereign States
whose powers were not considered legally limited by an objective or
purpose to promote the well-being and progress of ail persons or groups
concerned. He appears, Mr. President, to have been concerned primarily,
and particularly, with cases where the excesses, or reprehensiveness,
consisted in the deliberate subordination of the well-being of sorne
persons to that of others, even to the extent of the extermination, sub
jugation, expulsion and so forth of certain persons whose interests were
sacrifi.cedforthe sake of a particular doctrine orto faveur ether persons.
If such excesses were to occur Wlder mandatory rule, they would be so
obviously in confiict with the purpose for which the powers were granted
as to leave no doubt whatsoever in regard to their illegality. The same692 SOUTH WEST AFRICA
would apply to any conceivable case where "sincerity of purpose"-I
am using my learned friend's words again-"is carried to Wlreasonable
Iengths", so as to be "d.ifficult to d.istinguish from obsession". My leamed
friend himself, in this passage which I have quoted, mentioned in that
regard "improper ends". Mr. President, that is exactly what I am point
ing out: "sinccrity of purpose" must, under the Mandate, relate to the
authorized purpose only, namely the purpose of promoting the well
being and progress of all the inhabitants; and any "sincerity of purpose"
of which it could be said that it "is carried to unreasonable lengths",
or that it is directed to "improper ends", or that it is "difficult to dis
tinguish it from obsession", must surely and inevitably relate to sorne
purpose other than this authorized and legitimate purpose prescribed
by the Mandate. And if that is so, Mr. President, a court of law would
generally have no difficulty in discovering the real purpose of such a
policy. The purpose would in such instances surely appear from express
statements by leading expounders of the policy, if such "sincerity of
purpose'' carried to such excesses and to such unreasonable lengths on
the basis of professions of good faith and lofty purpose. If we have a
situation· bordering on an obsession, we are botu1d to have express
statements of purpose by Ieading expounders of the policy or doctrine
which would make it clear to the court, in the mandate context, that
what is being aimed at is an objective other than the prescribed one.
And even if such leaders should endeavour to put up a smoke-screen,
or a camouflage, a court would nevertheless, on proof of the relevant
facts properly presented to it, have no difficulty in drawing the correct
inference as to the real objective of the persans or the authority con
cemed; the court would be able to draw those conclusions from the very
Wlreasonableness of the objective, from the very improper ends border
ing on an obsession, and that is why, as I have said, the method of
testing a Mandatory's conduct for its honesty of purpose, for its bona
fides, by enquiring whether it has been directed at an authorized purpose,
at a prescribed purpose, as distinct from an unauthorized and unpre
scribed purpose, is in practice, a very valuable one. It specifically dis
tinguishes the mandate case from the type of case referred to by my
leamed friend.
But it must be borne in mind that any inference from conduct and
circumstances must be a necessary inference in order to be valid, and
that there must be no doubt about the utter unreasonableness, or the
excess bordering on an obsession, before the inference ofan ulterior motive
would be justified. If it is sought to establish this through the medium
of referring to currently accepted standards, as distinct from norms, if
it is sought to establish it through showing disparity between Respon
dent's policies and such current standards, then the Applicants would
have to show that Respondent is, indeed, out of step with virtually aU
relevant modem thought. It would not avail the Applicants to show
merely that sorne people, or many people, disagree with the wisdom or
the propriety of sorne of Respondent's policies, or of ail Respondent's
policies, or of sorne of the measures involved, or of all the measures
involved, even if, with respect, such disagreement may be shared by
this honourable Court. That appears quite clearly also from the prin
ciples of law stated by Sir Hersch Lauterpacht, which we quote in the
Rejoinder, V, at page r7r-I need not read the passage again to the
Court. The question, in our submission, must always be: is there room ARGUMENT OF MR. DE VILLIERS
for honest difference of opinion? If the answer is in the affirmative, i.e.,
if the Court finds that there is room for honest difference of opinion, the
Court cannot, on this line of reasoning, introducing currently accepted
standards or not, come to the conclusion that Respondent has exceeded
the scope of its discretionary powers.
As will appear more fully, Mr. President, from a consideration of the
facts, there is, in our submission, no prospect that the Court will arrive
at a conclusion that there is no scope for honest difference of opinion
when regard is had to everything that can be said on this subject of
currcntly accepted norrns and standards. And it seems that my learned
friends representing the Applicants indeed realize this. That is why
they indicate to this Court that they do not accept the task of establish
ing that there is, in fact, mala fides in the sense under discussion on the
part of the Respondent Govemment. There is in our submission in fact
no substantial difference at all between Respondent's policies and
general modern thought on the basic principles of justice and equity
involved, and 1 stress the basic principles involved. The differences which
exist relate to questions of method, and we frnd that condemnations of
Respondent's policies, so frequently quoted by my learned friends, very
often proceed from purely political motivation or from a wrong apprecia
tion of the facts. We find, 1\Ir. President, as we shaH show more fully,
that amongst properly inforrned and thinking persons (rom all over the
world there is ever-growing support and appreciation of Respondent's
policies, at least as regards their general trend, their objectives and the
broad means by which the objectives are sought to be attained; we shall
show this more fully when we come to deal with the facts. But that, in
law, is, in my submission, the role that can be assigned to modern,
currently accepted standards as distinct from binding rules of law.
At this stage 1 should like to revert to a statement made by my
learned friend, Mr. Gross, in connection with the Applicants' alleged
norm of non-differentiation, because it is relevant to this question of
the relevancy of standards. 1 quote from the verbatim record at page 26r,
supra, where my learned friend said this:
". . . although Respondent refers to this basic minimum standard
as a 'so-called' or as an 'alleged' norrn, no serious attempt is made
by Respondent to deny the existence per seof the standards relied
upon by Applicants".
In other words, Mr. President, the suggestion seems to be this: that the
existence of a standard, in our sense of the word, with a content of the
alleged norrn is not in dispute. Now, I have already pointed out that we
denied that any such norrn in such an unqualificd forrn existed at all
(we did that on the pleadings), quite apart from the fact that it was not
applicable to the Respondent; that we were correct in saying that, i.e.,
that there was no norrn in such an unqualified forrn as was being sug
gested in the Reply stage by my leamed friends, has been demonstrated,
amongst other things, by the fact that my leamed friends have now
found it necessary to introduce qualifications into the norrn. By the
clearest implication, Mr. President, we also denied the existence of such
an unqualified standard. In regard to standards generally, I can refer
the Court to what we said in the Rejoinder, V, at page 174, where we
stated, amongst others, the following (about ten lines from the bottom
of the page): SOUTH WEST AFRICA
"In so far as sorne recent formulations in resolutions of political
bodies, or even in international agreements, prospective or real, may
be read as seeking to lay down that methods found appropriate in
sorne countries are to be applied universallyand under ali circwn~
stances, including those pertaining to South West Africa and South
Africa, Respondent has made no secret of its disagreement with
such notions, or of the fact that its policiesdonotcomplytherewith.
In truth, however, as willlater be demonstrated, most formulations
contain explicit or implicit qualifications which, in their underlying
ratio, find common ground with the approach inherent in Respon
dent's policies."
I shotùd like to say sorne more on that subject, Mr. President, with
particular reference to the material relied upon by the Applicants in
regard to their suggested norm of non-differentiation. The Court will
recallthat in the Reply the Applicants referred to a number of sources
insupportofthiscontention. Wedidnot, in the Rejoinder, deal with them
one by one, as distinct fromdealingwith them in general, for the reason that
it was shown, conclusively in our submission, that no such norm existed
or was in any way binding upon the Respondent. Now, when considering
the same question in relation toits use as a possible standard, 1 should
like to deal with it further in the light of the general statement which we
made in the Rejoinder, and which we maintain.
First of ail, in order to avoid misunderstanding, 1 want to make it
clear that although we do not dispute the existence of a political standard
of non-discrimination involving a prohibition of unfair or oppressive
differentiation,e do dispute the existence of an absolute standard of
non-differentiation:we must draw that distinction quite clearly-a dis
tinction between non~discrimi invotvingna prohibition of unfair or
oppressive differentiation and an absolute standard of non-differentiation
perse. \Ve can point out, Mr. President, with reference to the conventions
and draft conventions to which my learned friends referred the Court,
that the States which are seeking to achieve a convention on the subject
of non-differentiation are still gropingut on the question of necessary
qualifications whichthey have to introduce in that regard, and that there
is no concept having nearly the absolute nature which the Applicants
seem to assign, or wish to assign, to this suggested norm or standard.
Secondly, Mr. President, 1 must point out that in a nwnber of the
sources cited by the Applicants, both in the Reply and in the present
Oral Proceedings, reference is made to, and judgment is delivered on,
Respondent's policies specifi.cally,d my learned friends were not slow
to point that out. Amongst nwnerous examples which we find in the
pleadings and in the Oral Proceedings, 1 can refer to a statement by my
learned friend, Mr. Gross, in the Oral Proceedings-the verbatim record,
at page 265, supra, where he referred to the Draft Convention adopted
by the Human Rights Commission at its 2oth session, and he said:
"The approved Draft Convention condemns in expressis verbis 'policies of
apartheid' ... " Now. Mr. President, our submission in that regard is
this: for reasons which I have already indicated, such a condemnation
cannat per se assist the Applicants in establishing the content of any
particular norm. \Vhen we have a condemnation of a policy, there enters
into that condemnation two elements which are separate and distinct.
The first element is that of the applicable standard, and the second is
the appraisal of the factual elements of the policy or practice. It is only ARGUMENT OF MR. DE VILLIERS
when we have the second, i.e., the appraisal of what factual elements
are involved in the particular policy or practice, that we can apply the
norm. So, Mr. President, if a policy is condemned on a wrong factual
assumption, for instance, an assumption that it involves deliberate op
pression, or that it is based on concepts of racial superiority or racial
hatred, then the condemnation itself tells us nothing about standards,
except about the very elementary ones which everybody accepts-that
deliberate oppression is a bad thing, or that concepts of racial superi
ority or racial hatred are bad things; that is all such a condemnation
tells us.nd this is precisely what we find in the case of this last example
to which 1referred: the Draft Convention of the Human Rights Commis
sion as set out in the Reply, IV, at page 507. We fi.ndthis condemnation
of apartheid in expressis verbis in the Third Preamble of the Draft
Convention as there set out, and it reads as follows:
"The States Parties to this Convention,
"Concerned by manifestations of racial discrimination still in
evidence in sorne areas of the world and by governmental policies
based on racial superiority or hatred, such as policies of apartheid,
segregation or separation ... "
That makes it perfectly clear on what basis, on what assumption, this
condemnation was based. This Court is not assisted in any way by such
a condemnation as far as the standards involved are concerned, because
the Court must make its own determination and will, in my subrnission,
make its own determination, on the evidence presented to it, whether
that evaluation, that judgment, that the policy is based on a concept of
racial superiority or racial hatred, is correct or not; and once that factual
evaluation falls away, we are left in the dark, at any rate as far as the
condemnation itself is concerned, in regard to the particular standard
applied. When it cornes to the particular standards contemplated by this
particular Commission, we have to look, therefore, at the other provisions
of that Draft Convention, and it is in that regard that we submit that
the qualifications inherent in them are of the greatest significance also
in the present enquiry. .
Mr. President, I proceed then to the provisions of the Draft Convention
on the Elimination of All Forms of Racial Discrimination, adopted by
the Human Rights Commission at its zoth Session in 1964.
1 may say that, for my present purpose, i.e., for the purpose of com
paring modern standards, in so far as they are relevant, with the con
ceptions of the Respondent Government as expressed in its policies, 1
shaH confine myself, out of ali the sources cited by the Applicants, to
this particular one. This is the very latest development on the subject
in the international sphere. It does not seem tous to be necessary togo
fully into the whole historical background and the precise wording of
each resolution, declaration, draft convention, convention and so on,
which led up to this ultimate one. This one contains ail the adaptations
that have been found to be necessary, from time to time, and it provides
sufficient illustration ofhe point which we want to make in the present
argument.
The preamble and the first three operative articles of the Draft Con
vention are cited in the Reply, IV, at page 507, footnote 2.The Court
will there see that in the first article racial discrimination is defined as6g6 SOUTH WEST AFRICA
follows: " any distinction, exclusion, restriction or preference based
on race, colour, [national]or ethnie orgin ... "
But the Court will also notice that the word "national" appears in
parenthesis. At the end of the article there appears, by way of explanation
for the parenthesis, a sentence in which a special interpretation is placed
on the word "national". The sentence reads as follows: "[In this para
graph the expression 'national orîgin' does not caver the status of any
persan as a citizen of a given State.]"
In other words, where there is, in general, to be a prohibition against
racial discrimination, that is, against any distinction, or preference, or
exclusion, or restriction based, inter alia, on national origin, such pro
hibition does not apply to a distinction because of the status of any person
as a citizen of a given State.
This Draft Convention, Mr. President, is, in this respect, essentially
the same as that adopted by the Sub-Commission on the Prevention of
Discrimination and Protection of Minorities, which fully discussed the
several drafts placed before it by experts. 1t is very interesting to note
that in these discussions much concern was expressed by members of
the Sub-Commission in regard to the use of the ward "national" in sorne
of the draft definitions of racial discrimination.
They made it clear in these discussions that the Convention should be
so framed that it could not be regarded as interfering with the right of
each State ta diffcrentiate between its nationals and aliens.
Thus we find that at the 4nth meeting of the Sut-Commission on r6
January rg64, Mr. Krishnaswami of lndia proposed an amendment to
the draft which was then under consideration. The amendment was to
the effect that the ward "nationality" should be placed in quotation
marks in the definition contained in Article r and that its meaning
should be explained in a footnote, assigning ta it much the same inter
pretation as to the last sentence of Articler of the draft eventually adop
ted and as printed in the Reply. He proceeded to state, Mr. President:
"\Vith that explanatory footnote, the article could not be inter
preted as denying to aState its right to make special provisions re
garding aliens within its territory." (U.N. Doc. E/CN.4/Sub.2/SR.
441, p. 4•)
At the 425th meeting of the Sub-Commission Mr. Cuevas Cancino of
Mexico expressed the following opinion:
"... the convention obviously could not require States to grant equal
rights to nationals and aliens". (U.N. Doc. E(CN.4/Sub.2jSR.425,
p. 8.)
At the same meeting 1\fr. Mudawi of the Sudan, referring to a draft
Article 8 in which it was sought to place a restrictive interpretation on
the ward "national" in Article r, remarked that-
"... an a1ien might be denied rights other than political rights
which were granted to nationals". (U.N. Doc. E/CN.4/Sub.zfSR.
4n, p. ro.)
The next speaker, Illr. Saario of Finland, commented that:
"... There were sorne areas other than political rights, e.g., the right
to social security and the right to work, in which a distinction was
made between nationals and aliens; accordingly, it might be unwise
to single out political rights in the interpretative clause." (U.N.
Doc. EjCN.4/Sub.2/SR.4n, p. ro.) ARGUMENT OF MR. DE VILLIERS 6g]
These, Mr. President, as I have said, are extracts from the deliberations
of the Sub-Commission.
At the meetings of the Commission of Hurnan Rights in rg64 similar
sentiments were expressed by delegates and it was generally Wlderstood,
as appears from the record, that the Draft Convention shotùd not be
read so as to prohibit differentiation between nationals and aliens, hence
the retention of the interpretative sentence in Article r of the draft
which is in the Reply.
\Vith respect, the Court could refer in that regard, for example, to
United Nations Documents E(CN.4/SR.783-785.
Now, Mr. President, once it is accepted that differentiation between
nationals and aliens is permissible, then surely as a matter of logic and
of justice and of equity, there can be no objection to differentiation be
tween different groups inhabiting a given territorial area, which is, for
the time being, administered as a WlÏt but which is destined to be split
up into separate political areas, each with its own nationality and each
capable of achieving autonomy.
Surely there can be no distinction, as I have said, of logic, or ofjustice,
or of equity, between these two cases.
If it is accepted that it is in the interests of ail the different groups
in such a territory, that a separate country, or homeland, should be set
aside for each group, and if it is further accepted that, on the road towards
achieving this objective, it is necessary to distinguish between the varions
groups, even before their respective areas have developed to countries,
in the true sense of the word, what difference could there then be in
logic, or fairness, or justice, between differentiation in such a case and
that involving nationals of States already existing as separate States.
Surely, Mr. President, it would, in our submtssion, .be hypocritical
to suggest that the varions States might freely differentiate between
nationals and aliens once they have become autonomous, or semi-auton
omous, but that until that stage were reached, the administering power,
which is striving to that ultimate end, would be precluded from any
differentiation between the groups at aU. Surely that wotùd be a com
pletely artificialand a completely Wljustified distinction and it would,
as we submit, be hypocritical.
It would be tantamoWlt to saying, Mr. President, that such a solution
is not to be allowed to the administering power at aU, because once it is
accepted that the best purpose to be striven after is the creation of dif
ferent political units with different nationalities, the application of a
policy of differentiation with a view to achieving that end could not be
distinguished in justice or fairness from the case where the final result
has alread y been achieved.
As I have said, Mr. President, it wotùd be tantamount to saying that
such a solution is in itself debarred to the administering authority, and
as far as I know there is no modem standard, or rule, ornorm, whichhas
that content. There certainly could not be any moral or equitable justi
fication for such a norm or standard because it involves not a question of
principle, of justice, of equity,or of morality, but purely a question of
method of achieving ideals of justice and fairness towards everybody
concerned-and the soundness of the method applied would have to
depend upon the facts and the circurnstances of each particular case.
It therefore, Mr. President, becomes clear from this qualification
about differentia ting on a nationality basis alone that there is no material6g8 SOUTH WEST AFRICA
distinction between the underlying concepts of justice, equity and mo
rality (as distinct from particular questions of method) of the particular
Draft Convention and those involved in the Respondent's policy. But,
Mr. President, the same feature appears from a further factor, namely
the foilowing: the authors of the Draft Convention did not consider that
differentiation between groups in a country destined to be administered
as a territorial unit would be impermissible in ail circumstances, even
on a permanent basis. In other words, even in cases where it is not the
objective to have a separation into different political units, but where
the country is being administered as a single territorial unit and the
intention is that it is to continue to be so administered, even there the
conference did not consider that differentiation was to be barred in ail
circumstances.
So we find that the same speaker from ?llexico, Mr. Cuevas Cancino,
said the following at the 4nth meeting of the Sub-Commission:
"... [it] was important to bear in mind that protection of certain
groups did not constitute discrimination. Nor should such measures
be abruptly discontinued. In sorne cases, they became part ·ofna
tional institutions, and a permanent means of securing rights which
wcre in the interests of the country as a whole. As an example, he
cited the case of Mexico, where the ownership of the land by the
Indians had been originally recognized by the Spanish Crown, and
subsequently, withdrawn on legal grounds, after the reYolution of
r8JO, so that the lndian villages had been left entirely without land.
It ilad required the revolution of rgro, with its ensuing land reform,
to restore the original more equitable situation." (U.N. Doc. EjCN.4j
Sub. zjSR.4rr, p. g.)
This was, therefore, a further case, Mr. President, where particular cir
cumstances rendered such a solution more equitable than a rigid precept
of non-differentiation, even in a country governed as a territorial unit
and destined to continue to be so governed.
At the 425th meeting of the Sub-Commission the same speaker com
mented adversely on a draft Article 8 that had been proposed. The rele
vant portion of paragraph 2 of the draft Article 8 read as follows:
"Nothing in this Convention shaH be interpreted as implying ...
a grant of political rights to a distinct racial ethnie or national
group as such." (U.N. Doc. EjCN.4/Sub.2/L340.)
Mr. Cuevas Cancino said in this regard:
"The second part raised a question as regards the kind of groups
to which it referred. He could suggest sorne cases where political
rights would have to be granted to distinct groups as such-the
Turkish minority in Cyprus was a case in point. In fact, in sorne cases
the deniai of special political rights on such grounds might in itself
constitute discrimination." (U.N. Doc. EjCN.4/Sub. zjSR.425, p. 8.)
At the same meeting Mr. Ivanov of Russia also objected to the cited
portion of the dra ft Article 8, paragraph 2. He is reported to have said
the following in the same document at page 6:
"... the draft convention should not deny political rights to any
group, but should ensure them to all. In sorne countries racial and
ethnie groups had political autonomy, and special provision was
made for that situation in the Constitution.If a limitation along the ARGUMENT OF MR. DE VILLIERS 6gg
lines proposed was included in the draft convention, it might have
the effect of depriving entire groups of their legitimate rights. At
a time when peoples in many parts of the globe were striving for
autonomy, such rights ought to be defended."
Mr. President, one of the proposers of this draft Article 8, Mr. Calvo
coressi of the United Kingdom, reacted to these speeches which I have
cited by assuring Mr. Ivanov as follows:
''... that paragrap2 of .Mr.Capotori's and his own draft for Article
VIII ... was not intended to limit the rights to political autonomy
held by racial, ethnie or national groups ... ".
And he also assured .Mr.Cuevas Cancino as follows:
"... that it was not intended to affect the rights of such groups as
the Turkish minority in Cyprus. The paragraph simply stated that
nothing in the draft convention should be interpreted as grant
ing such rights." (U.N. Doc. E(CN.4JSub.2jSR.425, p. g.)
So Mr. President, it becomes clear again that there was general agree
ment that there could, in fit cases, be distinctions of this nature, such as
the granting of political and other rights to particular ethnie groups as
such, even within a country destined to be governed as a unit. And it
would seem, in consequence, that there is no basic difference dfneo
ence of real principle~bet te eatitudes of the authors of the
Draft Convention and that of the Respondent Government regarding
differentiation in acountry or area inhabitated by various national or
racial groups.
The common attitude seems to be that differentiation of the nature of
unfair discrimination is impermissible but that measures of differentia
tian which are genuinely designed to promote the interests of all the
groups concerned, is permissible. Any difference which may exist between
Respondent's attitude and that of the authors of the Draft Covention,
relates to formulation, particularly of detailed aspects of method, and
not to the underlying ideas themselves.
\Vell, there are, indeed, such differences in regard to formulation of
particular aspects of method. I may in that regard refer the Court to
paragraph 2 of Article r of the Draft Convention, as an example. The
paragraph is quoted in the Reply, IV, at page 507. It contains wording
which, in my submission, will qwte evidently reqwre further considera
tion, and probably modification, in the course of gaining full wisdom on
the subject and before a final conclusion is reached, because we find that
it reads as follows:
"Special measures taken for the sole purpose of securing adequate
development or protection of certain under-developed racial groups
or individuals belonging to them in arder to ensure to such groups
or individuals equal enjoyment or exercise of human rights and
fundamental freedoms shall not be deemed racial discrimination,
provided, however, that such measures do not, as a consequence,
leadto the maintenance of separate rights for different racial groups
and that they shall not be continued after the objectives for which
they were taken have been achieved."
Mr. President, the part of this paragraph before the proviso accords
entirely with the basic underlying attitude of the Respondent in regard]00 SOUTH WEST AFRICA
toits policies. The only difference arises from this rather rigidly worded
proviso reading "provided, however, that such measures do not, as a
consequence, lead to the maintenance of separate rights for different
racial groups and that they shall not be continued after the objectives
for which they were taken have been achieved". Mr. President, the in
junction in this proviso that protective measures are not to "lead to the
maintenance of separate rights for different racial groups" appears to
be in conflict with certain of the sentiments expressed by speakers in the
very debate I have referred the Court to, which led up to the adoption,
by that conference at ]east, of the Draft.
1t is certain! y in conflict with the fears expressed on behalf of varions
States in regard to paragraph 2 of the draft Article 8 to which 1 have
referred.
Surely the separate rights granted to the Turkish minority in Cyprus
were not intended to be of a temporary nature and they were not dis
cussed in the debate as if they were intended to be of a temporary nature
only. And the rights of the racial and ethnie groups, referred to by the
Russian delegate, in the passage which 1 quoted to the Court, were not
spokenof as beingintended to be temporary. The wording of this proviso,
therefore, seems to be going beyond the contemplation of at least sorne
of the delegates. That is one of the reasons why 1 have said, with the
greatest respect, that it would seem to be evident that this is an example
of a standard which would require modification with experience as it goes
along. In addition, Mr. President, if underdeveloped groups may be
specially protected by measures involving compulsion from the point of
view of the developed groups, there can, in our submission, hardly be
any logical or equitable justification for denying similar protection to
developed groups, which may be minority groups in particular countries,
involving compulsion from the point of view of the underdeveloped
groups. 1 have dealt with that point before but on a basis of equity or
justice or ethics or morality, 1\lr. President, there cannat be any distinction
in that regard. If there is a moral right, on the part of a more developed
group, to inhabit a certain country, if that group plays a constructive part
in that country, if it is to the advantage of ali that that $'roupis to remain,
then what objection could there be in fairness or just1ce to such special
measures of protection as might be required for that group? Yet this
proviso, to which 1 referred, or rather the whole of that paragraph 2
of Article r, does not make provision for a case of that kind. It makes
provision for protection of underdeveloped groups but not for the most
developed groups in the territory even though that group may be a
minority.
It is in regard, Mr. President, to the introduction of such elements of
rigidity into what must essentially in our submission be questions of
method that Respondent differs from the terms of the Draft Com·en
tion but clearly not from the underlying principles of justice and equity.
So, Mr. President, having considered the suggested norms and the sug
gested standards and the interpretation which, in our submission, is
to be placed on Article 2, paragraph 2, of the Mandate, we come to the
question of the application of the legal principles to the facts-the legal
principles contended for by us and by my learned friends. The full con
sideration of that part of the enquiry, of course, is to be left over until
the facts have been properly debated and canvassed and investigated
but there are certain aspects of that part of the enquiry to which I ARGUMENT OF MR. DE VJLLIERS 701
should like to draw attention now because they seem to be relevant in
regard to the legal questions which we have been debating.
On the first day of these Oral Proceedings, my learned friend, Mr.
Gross, made the submission~
"... that the legal issue joined between the Parties in respect of
the irreconcilability of the policy and practice of apartheid with the
oblil?ations of Article2, paragraph 2 of the Mandate, hinges on no
undisputed fact".
That is from the verbatim record at page IIS, sttpra.
He also said at the same page~
"That there is no 'issue of fact to be determined between the
parties' on any decisively relevant aspect of these cases, has been
made clear in the Reply and is here reaffirmed."
Still proceeding at the same page, he said-
"The Applicants, of course, take sharp issue with the premises
upon which Respondent's policy is based, as weil as with the in
ferences and legal conclusions which Respondent seeks to draw from
its admitted, factual, policies."
Now we have pointed out severa! times bcfore, .Mr.President, that the
suggested norm of non-differentiation was formulated in the Reply in
such absolute terms asto outlaw any differentiation of any kind between
ethnie groups, no matter for \Vhat reason and no matter what the results
of the differentiation might be. Measured against that norm, Respon
dent's policies and practices were obviously impermissible and if, such
a norm were to exist in that absolute form, it would be true to say that
there would be no factual disputes between the Parties which prevented
adjudication and indeed condemnation of Respondent's policies and
practices. That result would follow automatically because it is common
cause that thcrc is differentiation on a group basis. And in that respect of
course, there is no factual dispute and on application of the absolute
norm the consequence of illegality would follow.
As saon, .Mr.President, as we depart from such an absolute norm, i.e.,
if we have to find sorne other basis for illegality, then that question, as
to there being no fact in dispute, becomes certainly not nearly as clear as
on the said premise. In fact, we submit that in the light of the correct
basis for adjudication of the issues regarding Article 2, paragraph 2, this
attitude stated by my 1earned friend in regard to there being no dispute
on material questions of fact, is an untenable one. lt is untenable for
two reasons: the first one is the very fact that, as we have pointed out, it
has been necessary for the Applicants to introduce qualifications into their
suggested norm of non-differentiation. They have qualified it by the con
cept of "protection, not compulsion", and if the Court were indeed to
have to apply a formula of that kind, then numerous factual disputes
might be involved in regard to each one of the various measures and
policies and practices concerned. I have pointed that out earlier to the
Court and 1 need not elaborate upon it.
\Vhat 1 do want to stress at this stage, is this further factor, that my
leamed friend himself says that he takes sharp issue on the premises
upon which Respondent's policy is based, as well as on the inferences and
legal conclusions to be drawn therefrom.
It is, in our submission, completely illogical, Mr. President, for the702 SOUTH WEST AFRICA
Applicants to say that there is no rnaterial factual dispute between them
and us and to say at the same time that they take this sharp issue on
the prernises upon which our policy is based. What do they mean by
"prernises"? That becomes perfectly clear, when we have regard to what
they said about this very same word "prernises" in the pleadings which
are before the Court. When we have regard to that, Mr. President, we
find that those premises indeed involve questions of pure fact-pure
fact as distinguished from evaluations of fact or inferences to be
drawn from fact. Surely, Mr. President, the question whether varions
population groups in South West Africa desire to retain their separate
identities or desire to have separate schools or separate territories and
separate residential areas or separate political institutions, and so forth,
is a pure question of fact.nd can my leamed friend say to this Court that
there is, for relevant purposes as far as any ot these theses or bases are
concerned, no issue of fact between the Parties? Is it not, Mr. President,
a question of fact whether school children might progress better when
taught in their horne language than in a foreign language? Is it not a
question of fact as to the psychological way in which children and in
deed adults in South West Africa react to separate institutions, separate
schools and separate other institutions, as compared with the situation
in a country, for instance, like the United States of America where the
psychological aspect of the matter was dealt with in the Brown case?
Is that not a question of fact? ls it not a question of fact in what manner
members of groups, of ethnie groups, react when they feel that the
identity or the continued existence of the group is being threatened? Is
that not a question of fact? And is it not a question of fact, or at least
of evaluation of techniques involved in governrnent, to decide what is
the best reaction of a government to group reactions of that nature, if
established as facts? Must a governrnent try to smash them altogether,
try to over-rule them, ignore them, or must the government take cog
nizance of their existence and try to evoh:e a policy which takes cogni
zance of them and which is capable of using the human material involved,
the human sentiments involved, the human reactions involved, to a posi
tive purpose and to a positive result?
Surely, Mr. President, those are questions of fact and of scientific
appraisal of the problems involved. In the Reply, IV, page 302, we find
the clearest indication that the Applicants include these matters, to
which I have referred, in what they call the premises upon which the
Respondent's policies are based. They say there, under the heading of a
portion of their Reply, namely The Weight of Contemporary Scientific
Authority:
"Respondent's underlying premises are, in effect, that historical
circumstances have created a situation in which members of different
'groups' pre/er to 'associate with members of their own group'."
l\fr. President, let us pause here, for a moment. Surely, that in itself is a
statement of a question of fact, whether members of groups indeed,
prefer to associate with members of their own group. The Applicants
go further and state varions other examples, sorne absolutely correctly,
sorne correct with sorne qualifications, sorne incorrectly, but, neverthe
less, in purported illustration of what the Applicants conceived to be
the premises which we, on our part, stated to be those underlying the
policy of separate development. These premises referred, inter alia, to ARGUMENT OF MR. DE VILLIERS 703
group reactions, which we said existed as social phenomena, as facts
independent of government action. The whole subject is discussed in the
Reply, IV, pages 303-305, where the Applicants set out what they con
ceive to be our stated basic premises. Then, Mr. President, at the con
clusion of this setting out of our premises, or the way in which we
expressed the premises, the Applicants say:
"In reply, Applicants show that, to the contrary, the foregoing
assumptions and generalizations, asserted by Respondent to underly
and shape its policy of apartheid, or separate development, are
contrary to, and are rejected by, the overwhelming weight of au
thority in the political and social sciences." (IV, p. 305.)
I ask the Court again, with due respect, is that not a statement of an
issue of fact, especially when the Applicants proceed to isolate three of
these so-called premises, or assumptions, or generalizations, asserted by
Respondent to underly and shape its policy, and to deal with them in
order to show that they are contrary to and rejected by the overwhelming
weight of authority in the political and social sciences. The fust one is
paraphrased at page 305 of the Reply as being Respondent's contention
regarding" 'Difference'without 'Inferiority' ''.The second one at page 306
is paraphrased as being Respondent's contention of "Inevitable 'Frustra
tion' if ali lnhabitants ofthe Territory Are Accorded Equal Opportunity".
The third one is paraphrased as "Respondent's Contention that, As a
'Realistic Government', it l\lust Support Existing 'Group Reac
tions'". The Applicants then proceed under this heading with a discus
sion, running from page 305 to page 312, in which they offer, what they
cali, the overwhelming weight of authority in the political and social
sciences, which they say refutes these underlying assumptions, gener
alizations-in other words, premises-of Respondent's policies.
Mr. President, we dealt wîth that subject-matter in our Rejoinder, V,
pages 400-461-a treatment spread out over, if I recall correctly, four
different chapters of our Rejoinder-in order to show that the Applicants'
statement that the overwhelming weight of authority in the political and
social sciences, is against these various premises on the Respondent's
part, properly stated and properly understood-that that contention on
the Applicants' part is wholly unfounded. Mr. President, surely that'
constitutes an issue of fact between the Parties on what the Applicants
cali the premises, on which they take sharp issue. How then can the
Applicants tell us that there are no material issues of fact between the
Parties which are relevant to a determination of this case in regard to
Article 2 (2)?
These are only sorne examples. There are others which make it equally
clear that, in contending as they do that the policy of apartheid, as
practised in South West Africa, is repugnant to the Mandate (that we
find inthe verbatim record at p. II}, supra) the Applicants have in mind
a certain factual conception of the policy of apartheid. They indeed make
that very clear, Mr. President. They go on to say, at page II4 of that
same verbatim record:
"... it is impossible to deal with the legal issues underlying the
mandatory rights towards the inhabitants of the Territory without
considering, if only briefty, the Applicants' theories, or contentions
at least, with respect to the nature of the practices and policies with
which those legal issues are vitali y concerned". SOUTH WEST AFRlCA
At page II3 the Applicants make it perfectly clear what is their factual
conception of the policy of apartheid, as practised in South West Africa.
and 1 quote:
"The Applicants do not use the terms 'apartheid' or 'separate
development' as words, but as defined acts with a legal consequence.
The Applicants present to this honourable Court the policy and
practice of apartheid as it is, and as it has been, in the daily lives of
the individual persans who comprise the collectivity of the inhabi
tants of the Territory.
The Applicants define apartheid, for the purposes of these pro-
ceedings, as a policy and practice under which:
'the status, rights, duties, opportunities and burdens of the popula
tion are determined and allotted arbitrarily on the basis of race,
color and tribe, in a pattern which ignores the needs and capaci
ties of the groups and individuals affected, and subordinates the
interests and rights of the great majority of the people to the
preferences of a minority'. [1, p. 108.]"
Mr. President, in that passage 1 can point to three basic questions on
which the sharpest issue was taken by the Respondent in the pleadings
before the Court. The suggestion that the allotment is arbitrary, the
suggestion, or allegation, that the pattern ignores the needs and capaci
ties of the groups and individuals affected, and the allegation that the
pattern subordinates the rights and interests of the great majority of the
people to the preferences of a minority, are the cardinal factual issues
between the Parties in this case. My learned friend retains this definition
when he says that the policy of apartheid, as practised in South West
Africa, is repugnant to the Mandate. Indeed, he stresses that this defini
tion must be read into that concept because he does not use the term
"apartheid", or "separate development" as words, but as defined acts,
and this is the definition. So, Mr. President, how can he tell this Court
that there are no material factual issues between the Parties?
His further recognition of the importance of the factual aspects, to
which I have referred, appears from the fact that, when he came to the
end of his arguments in the verbatim record at page 269, supra, my
learned friend stated certain submissions to the Court apparently as if
he bad put his full case in regard to those already, but he made an
exception in regard to his Subruissions 3 and 4 when he said:
"... I terminate, on behalf of the Applicants, the fi.rst phase of
these oral proceedings, and reserve to the subsequent phase a fuller
discussion of issues involved in Article 2,paragraph 2, of the Man
date, including the legal issues there involved and the submissions
relevant thereto, which I have not now presented to the Court ... ".
Mr. President, that is the lack of logic which we still, with the greatest
respect, find in this presentation of the Applicants' case, and I mention
it, not in order to be facetious about it, but because it creates a real
practical difficultyasto what case it is that we have to meet, and asto
what case it is that this Court is asked to decide. It may weil be, and I
say it with the greatest respect, that questions ought to be asked of the
Applicants (1 cannot ask them), questions that may be necessary to
clarify these basic aspects of what their case really is. Perhaps my
Iearned friend will deal with the matter in any case m reply to what I ARGUMENT OF MR. DE VILLIERS 705
am saying now, so that we may in fact know where we stand in regard
to this matter.
The practical conclusion to which we come, Mr. President, on the
argument which 1 have presented to the Court in regard to the law
involved in Article 2 (2) of the Mandate, amounts to this: Let us assume
for the moment that the Court decides in our favour, on the proposition
that the Applicants have not succceded in establishing any of their sug
gested legal norms, or standards having legal effect perse. Let us assume
further that the Court finds in our favour that the basis upon which the
alleged violation of Article 2 (2) of the Mandate is to be determined, is
one of good faith-in other words, that in arder to establish a breach
or violation of our obligation under that Article, it is encumbent upon
the Applicants to establish bad faith on our part, in the sense under
discussion.
Let us assume further that the Court finds in our favour that an
enquiry into that question of bad faith is not to proceed on the limited
and artificial basis suggested by the Applicants in their reference to a
so-called presumption that a man is presumed to intend the natural and
probable consequences of his actions, but that the Court agrees with us
that ail the relevant facts-all the relevant evidence-is to be con
sidered before the Court cornes to a conclusion on the issue of intent of
good or bad faith involved in that respect.
Mr. President, on the assumption that those findings are made by the
Court purely on an assessment of the legal argument which is now being
adduced to the Court, and if the Court then, in addition, takes into
account the Applicants' specifie disclaimer about making a case on the
basis of bad faith-1 refer the Court again to that in the verbatim record
at page u6, supra, where the Applicants say-
"... the" fact undisputedly is that the Applicants do not make an
issue,have not sought to make an issue, and do not intend to make
an issue of good or bad faith in the premises".
Mr. President, on that basis, the question may weil be putto the Appli
cants that if the Court makes these findings I have postulated, do the
Applicants wish to proceed at ail with their case in regard to the facts
and, if so, on what basis? On what basis can the facts be said to be
legally relevant and for what purpose?
If this attitude, which I have just read to the Court, is maintained
and assuming the Court makes these findings as to the law involved in
the matter, that may well mean the end of the Applicants' case.
The Respondent is ready and willing and anxious to put its full case
in regard to the facts before the Court, to proceed with the evidence
I have referred to--oral evidence-and to proceed with the inspection,
if the Court decides to have an inspection. The Respondent is anxious
that the Court should have regard to ali the relevant facts but the
question may weil arise, as a matter of practical convenience whether,
if the Court makes these findings on the basis of the law, there is any
presentation of an issue of fact at ali, from the Applicants' point of view,
which requires consideration by this Court.
In that event, one would have to draw one's own conclusions and the
world would have to draw its own conclusions from the fact that the
Applicants have not seen fit to meet squarely on its merits the case
which we have already presented in full on the pleadings, in regard to SOUTH WEST AFRICA
the facts involved, in regard to Respondent's policy and objectives,
motives and so forth, but that instead they prefer to rely on legal
technicalities in that regard and that those legal technicalities have
turned out to be unsound and without substance.
Mr. President, I submit, that that is a very real practical result which
would flow from acceptance of our contentions on the legal questions
involved regarding Article z, paragraph z.
I should like to add only one further comment. If the Court should
come to the conclusion that our contention is correct in regard to the
discretion which was intended to be exercised by the Mandatory in this
regard, and that the sole test, apart from Articles 3 to 5 of the Mandate,
is whether the Manda tory is honestly setting about its sacred mission in
that regard, then I want to emphasize that that conclusion will not be
a negative one, Mr. President. It will be a positive one-positive in this
sense, that the task involved in that sacred trust, or sacred mission, is
one which must necessarily, from its very nature, adapt itself to circum
stances as they change and as they evolve. That is why it is so necessary
to have a discretion on the part of the administering authority-a discre
tion which makes it possible for that administering authority to apply
policies which are pliable, which are elastic and which are adaptable to
altered circumstances. Without that legal discretion that would not be
possible, especially not if the authority were, from time to time, to be
fettered with a type of norm or standard having the effect in law, sug
gested by the Applicants.
Mr. President, 1 may refer the Court in that regard to a brief passage
in the very brilliant judgment of Lord Birkenhead in McCawley v. The
King, reported in the Law Reports of Appeal Cases in 1920 and 1 am
reading a brief passage from page 703. Lord Birkenhead was there com
parîng various constitutional systems and I merely want to read his
remarks regarding the constitutional systems of the British Empire.
"Sorne communities, and notably Great Britain, have not in the
framing of constitutions felt it necessary, or thought it useful, to
shackle the complete independence of their successors. They have
shrunk from the assumption that a degree of wisdom and foresight
has been conceded to their generation which will be, or may be,
wanting to their successors, in spite of the fact that those successors
will possess more experience of the circumstances and necessities
amid which their lives are lived. Those constitution framers who
adopted the other view must be supposed to have believed that
certainty and stability were in such a matter the supreme desiderata."
(Italics added.)
The judgment goes on to analyse the various aspects of the distinction.
I merely want to emphasize these words as being par excellence appli
cable to the mandate instrument before the Court.
Apart from the particular instances in which a Mandatory's discretion
was shackled, the authors of the Mandate quite obviously shrank from
the assumption that they bad a degree of wisdom and foresight that
would be denied to successive generations of Mandatories, despite the
fact that those successors, as Lord Birkenhead said, would possess more
experience of the circumstances and necessities amid which their lives
would be lived.
It is truc, Mr. President, that the authors of the mandates system ARGUMENT OF MR. DE VILLIERS 707
considered that Mandatories, in this discretionary task, would have the
assistance, by way of co-operation and collaboration, in the manner which
I have indicated before, of the Permanent Mandates Commission, an expert
commission, and of the supervisory powers of the League Council itself.
Respondent itself would have preferred to be assisted in its discretion
by that type of supervision. But then it must be that type, .Mr.President.
It must be the type of supervision which realizes the ever-changing facts
and circumstances involved, which realizes that if one evolves standards
those are not binding rules but are there only for guidance, and are
subject to modification, according to the teachings of experience.
Under those circumstances, supervisory functions and powers on the
part of bodies of that kind are indeed of assistance to a mandatory
authority which has to exercise a discretion of that kind.
Any assistance of that kind which is still offered by way of criticism,
Mr. President, is always welcome. The only stand which the Mandatory
Govemment, the Respondent Government, takes in that regard, and
strongly takes, is that when criticism is offered from outside, which is
either politically motivated, or uninformed, which is directed at forcing
its hand in accepting a policy which the South African Govemment
itself knows will have disastrous results, then that type of assistance
from outside is not welcome and does not help. That is where the South
African Govemment stands in law, and in conscience, in regard to this
sacred trust.
That, Mr. President, concludes my argument in regard to Article 2,
paragraph 2.
It remains for me to refer, very briefly, to the legal questions involved
in the only other matter which requires discussion now, namely in regard
to the suggested modification, unilateral modification, by Respondent
of the international status of the Territory, as referred to in the Appli
cants' Submission number 5 and, as was argued in conjunction therewith,
by my learned friends, also the suggested modification of the terms of
the Mandate itself, as stated in the Applicants' Subrnission number 9·
Mr. President, 1 have scanned the record of the verbatim records in
this regard very carefully, and 1 fi.ndthat very brief reference was made
to this matter, by my learned friends.
1 could give the Court first a summary of the passages where any
reference was made at all to these matters and then indicate, in sum,
what they amount to. The first reference is to the verbatim record at
pages 134-135, supra. The second is to page 139. The third is to the
verbatim record of 23 March. There are three passages in it-one at
pages 219-220, the second at page 221 and the third at page 231. Then
we fi.nd a reference to the matter again at pages 268-269.
Now, Mr. President, on analysis what do we fi.ndhere? We find, first,
that in the fi.rst passage to which I referred the Court (the verbatim
record, pp. 134-135) my learned friend indicated very clearly that he
would not deal with the subject-matter of Submision 5 at this particular
stage. He would reserve this treatment of the subject to what he called
the facts stage of the enquiry.
He said the same in regard to issues arising in regard to militarization
the alleged violation of the military clause-as dealt with in the Appli
cants' Submission number 6.
Nevertheless when it cornes to the end (in the verbatim record at
pp. 268-269, supra) we find that my Iearned friend, in fact, stated his708 SOUTH WEST AFRICA
submissions as if he were then asking for orders in terms of those sub
missions-in regard to bath Submission nwnber 5 and Submission
number g-Submission 5 relating to aileged violation of the separate
]nternational status of the Terrüory and number 9 to modification of
the Mandate.
This, Mr. President, he did despite the fact that Submission No. 9
was expressly qualified as depenùing on the facts discussed in Chapters
V, VI, VII and VIII of the Memorials. The Court will recall that Chapters
V and VI of the Memorials dealt with the Applicants' version of the Re
spondent's policy of apartheid, and with aU the facts relating to that;
in other words, to the issue in regard to Submissions 3 and 4 falling for
consideration under Article 2, paragraph 2, of the Mandate. And in that
respect my learned friend, as I have pointed out, at the end of his address
stated that he was not putting his submissions in regard to that matter
to the Court at ali, but that he was reserving that for further considera
tion at the facts stage. But nevertheless, we find that Submission 9 which
is dependent in part on the canvassing of the facts in regard to Sub
missions 3 and 4, is already stated to the Court, as a submission.
We find, l\Ir. President, that Submission 9 also refers specifically and
expressly to Chapter VII of the Memorials. Chapter VII, as the Court
will recall, dealt with militarization. This is again a matter which is
reserved to be dealt with at the facts stage. Not only is there the state
ment to which 1 referred in the verbatim record (pp. I34-135, supra) in
that regard, but, in fact, my learned friend put no submission in regard
to militarization to the Court at that stage.
And Submission 9 refers also to Chapter VIII of the Memorials, which
deals with the subject of aUeged violation of international status, and
which I caU, for short, alleged piecemeal incorporation of the Territory.
Now, Mr. President, in that regard we find that there are a nwnber
of facts which are indeed also in issue between the Parties, and which
fallto be considered, amongst others, in conjunction with the issues re
lating to Article 2,paragraph 2,of the Mandate. We find that in regard
to the charges of piecemeal incorporation the Applicants refer, amongst
others, to subjects such as the fact that Native administration in South
\Vest Africa is conducted as from 1954 by the Department of Bantu
Administration and Developmcnt, as distinct from the position that had
obtained before, namely that it feUunder the South West Africa Adminis
tration. They refer to the fact that Native land in South West Africa is,
as from that same time, vested in the South African Native Trust. They
complain about the fact that the Eastern Caprivi is administered sepa
rately from the rest of South West Africa.
Now, Mr. President, in that regard they themselves made a submission
to the Court which is very significant and relevant in this regard. They
pointed out that power was given to the Mandatory to administer South
West Africa as an integral portion of the Union, but they submitted in
that regard that although acts may appear to be innocent, as falling
under the exercise of this power, the real motive of the Mandatory in
that regard may be an important indicator. They said in their Memorials,
1, at page r86:
"Piece-meal incorporation amounting to de facto annexation is
both insidious and elusive. Motive is an important indicator since
it sheds light upon the significance of individual actions, which
might othenvise seem ambiguous." ARGUMENT OF MR. DE VILLIERS ]09
They suggested, therefore, that if they could establish an intent to
incorporate then these acts, which might otherwise have been innocent
under the formulation of administration as an integral part of the Union,
that that might become in truth a violation of the Mandate.
Now, Mr. President, wc took them up on that basis, and we submitted
that in fact the motive or the intent in that regard was not only an im
portant indicator, it was the decisive factor. If the intent was bona fide
to administer South West Africa as an integral part of the Union, with
a view to better administration under the Mandate-in the interests of
aliconcemed-then such acts would be perfectly in order. If the motive
was, as alleged by the Applicants, a motive unilaterally to incorporate
South West Africa into the Union, or now into the Republic, then such
acts would, on the assumption that the Mandate is in force, be a con
travention of the Mandate.
On that issue between the Parties then, Mr. President, it becomes very
clearthat, when one views subjects such as the administration of Native
Affairs by the South African Department of Bantu Administration and
Development, the question of vesting land in the South African Native
Trust, the separate administration of the Caprivi strip, that one has to
examine ail the facts involved, in arder to see whether the purpose was
better administration or whether the purpose was piecemeal incorpora
tion, and that, therefore, one cannat come to any conclusion that in
that respect there has been an attempted violation of the international
status of the Territory, unilaterally, or an attempted unilateral amend
ment of modification of the terms of the Mandate, before going into
ali these facts. And yet my learned friend indicated that he is now ask
ing for an arder in that regard. Perhaps 1 misunderstood him; perhaps
that is not his intention, because he certain! y did not deal with any of the
facts in support of that submission, and he did indicate initially that he
would reserve dealing with those facts at what he called the fact stage.
I shall, therefore, inhe circumstances, also, Mr. President, not at this
stage of my argument deal with the details and the ramifications-if I
may call them that--of these two particular contentions or submissions,
Nos. 5 and g, on the part of the Applicants. There are, in sorne of the de
tailed aspects, certain questions of law·to be considered, but they seem
to be essentially tied up with specifie points complained of. specifie as
pects of fact, specifie transactions, specifie laws, specifie policies and so
forth. We shail, thereforc, deal with those matters after the Applicants
have made it clear to the Court what exactly their case now is in that re-·
gard, because it would seem tome that they could hardly have intended
to present thei full oral case to the Court in regard to those submissions
already.
If that isindeed their intention, they can say so at the Reply stage and
then 1 shall, at a convenient stage, deal with the rest of the matter, or
somebody on our side will. But, since at this stage we have not heard the
Applicants' case in that regard I do not intend to reply thereto.
1 wish to reply to only one general aspect, and that is one to which l
have already referred to a certain extent. That is the attitude which the
Applicants adopt in regard to this very question of intent to incorporate,
or, alternatively, intent to modify the terms of the Mandate. 1 pointed
out before, Mr. President, that in this regard, too, in the Memorials the
Applicants commenced with an allegation-a very positive and a specifie
allegation-that intent is an important aspect of what one might callJIO SOUTH WEST AFRICA
their cause of action. I read sorne passages to the Court earlier relating to
their Submission g, namely the question of incorporation. There is another
one to which Hwish to refer. It occurs in the Memorials, l,at page 195,
where the Applicants stated their legal conclusions and summary in this
regard, and whcre they said:
- "By the foregoing actions, read in the light of the Union's avowed
intent, the Union has violated, and is violating, its international
obligations stated in Article 22 of the Covenant of the League of
Nations and in Article 2 of the Mandate."
And, Mr. President, in their Submission No. 5 itself, at page rgS of the
Memorials (1), they said that "the Union, by word and by action" was vio
lating its obligations regarding the separate international status of the
Territory. "By word" there refers to the references they had already
given to a series of speeches, by officiais and politicalleadersfrom which
they sought to draw the inference of an intent to incorporate the Terri
tory. But after we dealt with the matter fully and when it came to the
Reply stage, the Applicants then came with an alternative contention,
which we find in the Reply, IV, at page 573, to this effect:
"Respondent's policies and acts ... constitute perse, andjwithout
regard to Respondent's purpose or motive, a violation of Respon
dent's obligation to respect the separa te international legal status of
the Territory."
But at the same time they maintained that "Respondent's purpose or
motive to incorpora te the Territory clearly emerges from the record here
in", and they even maintained, at the next page, that "in decisive re
spects, indeed, such a purpose is conceded in Respondent's own avowals".
Now we may come to the present Oral Proceedings. The Applicants
completely minirnize the requirement of intent regarding this part of
their case also. They now say, in the verbatim record at page 220, supra:
"As formulated in the Memorials (1), at pages r84-I95, and re
affinned in the Reply (IV), at pages 572-586, Respondent has taken
action reflecting a purpose, objectively determined, to incorporate
and annex the Territory into the Republic of South Africa. Respon
dent has pursued this objective by means of policies and acts which
impair, and are incompatible with, the separate international status
of the Territory."
They make it clear, Mr. President, that this objectively determined
intent is one which rests entirely on this suggested presurnption. One
finds that in passages which 1 need not read to the Court, in the verbatim
record at pages 220-221, supra. I might read the last few lines:
"The 'intent' referred to in Submission No. 9, as 1 have said, is
the. objectively determinable intent, legally to be inferred from
Respondent's conduct by virtue of the universally accepted prin
ciple that a persan or entity is presumed to 'intend' the necessary
and reasonably foreseeable consequences of his, or its, actions."
And immediately before they made it clear that what they say in regard
to Submission g applies also to their Submission 5·
So, Mr. President, the position, on analysis, now is that whereas in
the Memorials they attempted to show by direct evidence that Respon
dent has the intent or purpose, and in the Reply, while formulati~g
an alternative basis for their charge in regard to Submission 5, they shll ARGUMENT OF MR. DE VILLIERS 7II
maintained that the intent or purpose appeared clearly from state
ments made by Respondent's Prime Minister, they now contend that
Respondent's intent is to be inferred solely from its deeds in accordance
with this artificial presumption.
The same position is made clear, Mr. President, in regard to their
contentions under their Submission No. 9· The charge made in the Me
rnorials (1 read from (1), p. 196 again), was that certain acts of the
Respondent read in the light of the Respondent's intent "constitute a
unilateral attempt ... to modify the terms of the Mandate" without the
consent of the United Nations.
We pointed out in the Counter-Memorial that the Applicants appeared
to concede that in order to establish a contravention of Article 7 they
would require to prove an intent on Respondent's part to modify the
terms of the Mandate.
Now we get the Applicants' reaction in their Reply, IV, at page 587,
where they say that the allcged violations of Article 7 of the Mandate-
"do not turn upon the question of 'good or bad faith', or subjective
motivation. Respondent is preswned to intend the reasonably pre
dictable consequences of its acts. ln this sense, intention is implicit
in Respondent's conduct ... "
Now, Mr. President, in the Rejoinder, VI, at pages, 424-425, we pointed
out the fallacy underlying this approach-I need not read that passage
to the Court. What I want to emphasize is that in regard to both these
submissions, i.e., Subrnission 5and Submission g, the Applicants nowseem
to be dri\·en to take up this untenable attitude that an enquiry into in
tent is to be embarked upon, mere!y on the basis of this so-called preswnp
tion, only with reference to sorne of the relevant facts and to the exclu
sion of the others. And that is the same type of attitude previously
taken, :\Ir. President, in respect of Article2, paragraph 2; 1 have dealt
with that fully; I have indicated to the Court, with subrnission, why that
is in principle an untenable attitude.
In regard to their Submission 9 it is, in conclusion, significant to note
that the Applicants have retained a reference to intent in the submission
itself,and they gave this explanation for it in the verbatim record at
page 221, supra:
"Submission No. 9 is the only one of the Applicants' Submissions
... in which explicit reference to 'intent' is made. Such reference
is regarded by the Applicants as relevant because of the fact that
Article 7, paragraph r, is the only provision in the Mandate which
contemplates a consensual arrangement between the Mandatory
and the supervisory organ, a subsequent agreement to accomplish
a certain result.
Accordingly, conduct from which may be objectively inferred an
intent to evade the requirements of Article 7, paragraph r, by rneans
of unilateral action, takes on significance in the absence of a showing
by Respondent of any plan or purpose to seek consent of the super
visory organ."
Mr. President, I submit that this explanation makes no sense whatsoever.
Surely if at the time of preparing the Memorials the Applicants thought
that Respondent's intent was indeed to be determined only by application
of this particular objective-criterion in the same way as in regard to
their Submissions 3 and 4and 5, then one would not have found this specifie712 SOUTH WEST AFRICA
reference to intent in this formulation of their Submission No. g. In our
submission, Mr. President, whether intent relates to modification of an
agreement, whether it relates to a suggested international delinquency,
whether it relates to a suggested violation of duty where it is necessary
to establish intent in order to establish a violation, the principles remain
the same: the enquiry has to be a full one in respect of ali the relevant
facts, and only then the Court can come to its conclusion.
The fact is, inour submission, that the Applicants are here also run
ning away from the task of embarking upon that full enquiry, of establish
ing by ordinary, evidential means an intent which they have to prove,
and which they admit that they have to prove, in order to establish their
case in law. I have never heard of a proposition that an unintentional
violation of an obligation can be seen as an attempt at a unilateral mod
ification thereof.
Imust express my appreciation to the Court for the very patient man
ner in whlch it has listened to a rather lengthy argument, Thank you.
Minutes of the Public Hearings held from 15 March to 14 July, 20 September to 15 November and 29 November 1965, 21 March and on 18 July 1966, the President, Sir Percy Spender, presiding (Minutes and Annexes to the Minutes)