Counter-Memorial filed by the Government of the Republic of South Africa

INTERNATIONAL COURT OFJUSTICE

PLEADINGS, ORAL ARGUMENTS, DOCUMENTS

SOUTH WEST AFRICA CASES

(ETHIOPIA v.SOUTH AFRICA;
LIBERIA v.SOUTH AFRICA)

VOLUME II

COUR INTERNATIONALE DEJUSTICE

MÉMOIRES, PLAIDOIRIES ET DOCUMENTS

AFFAIRES DU SUD-OUEST AFRICAIN

(ÉTHIOPIE c. AFRIQUE DU SUD;
LLBÉRIAc. AFRIQUE DU SUD)

VOLUME II The present volume contains the first four books of the Counter-
lllemorial relating to South West Africacases. The proceedings
in these cases, which were entered on the Court's General List on
4 November 1960 under numbers 46 and 47, were joined by an
Order of the Court of20 May 1961(South West Africa, Orderof
20 May 1961, I.C.J. Reports 1961p. 13).Two Judgments have

been rendered, the first 21 December 1962 (South West Ajrica,
Preliminary Objections,dgment, I.C.J. Reports 196,. 319) .nd
the second on18 July1966 (SouthWest Africa, SecondPhase,Judg-
ment, I.C.J. Reports 196,.6).
The page references originally appearing in the pleadings have
been altered to correspond with the pagination of the present edi-
tion. Where the reference is to another volume of the present edi-
tion, the volume is indicated by a roman numeral in bold type.

The Hague, 1966.

Le présentvolume reproduit les quatre premiers livres du contre-
mémoire déposédans les affaires du Sud-Ouest africain.Ces
affaires ont étéinscrites au rôle généralde la Cour sous l46 nos
et 47le 4novembre 1960 et les deux instances ont étéjointes par
ordonnance de la Cour le20 mai 1961(Sud-Ouestafricain, ordon-
nance du 20 mai 1961, C.I.J. Recueil 1961p.13).Eues ont fait
l'objet de deux arrêts rendus21edécembre 1962(Sud-Ouestafri-
cain, exceptionspréliminaires,arr, .I.J. Recueil 19p.319) et
le18 juille1966(Sud-Ouestafricain, deuxièmephase, arrêt, .I.J.
Recueil1966 ,. 6).
Les renvois d'un mémoire à i'autre ont étémodifiéspour tenir
compte de la pagination de la présente édition. Lorsqu'il s'agit
d'un renvoià un autre volume de la présente édition,un chiffre
romain gras indique le numérode ce volume.
La Haye, 1966. CONTENTS - TABLE DES MATIRRES

PART 1. APPLICATIONS INSTITUTING
PROCEEDINGS AND PLEADINGS

PREMIÈRE PARTIE. REQUETES INTRODUCTIVES
D'INSTANCEET MGMOIRES
SECTION B. PLEADINGS (continued)

SECTION B. M~MOIRES (suite)

5. Counter-Memorial Hed by the Government of the
Republic of South Africa

BOOK 1
Page
Chapter 1. General introduction . . . . . . . . . . . .. . . I
Chapter II. Submissions. . . . . . . . . . . . . . . . . . . 6
Maps
South West Africa [See pocket in back cover]
Political Map of Africa 1939 [Not reproduced]
Po!itical Xap of Africa 1961 [Not reproduced]

BOOK II

Chapter 1. Introduction to Book II. . . . . . . . . . . . . . 7
Chapter II. Histoncal background . . . . . . . . . . . . . . 9
Introductory . . . .. . . . . . . . . . . . . . . . . . 9
The framing of the Mandate for South West Africa . . . . . .. . 15
The League of Nations period . . . . . . . . . . . . .. . 22
The penod of transition 1945.1946 . . . .. . . . . . . . . . 32
Establishment of the United Nations . . . . . . .. . . . 32
Dissolution of the League of Kations . . . . . . . . . . . 43
Dissolution of the Permanent Court of International Justice. 52
The period 1946-1949. . .. . . . . .. . . . . .. . . . 52
The period 1950-1960. . . . . . . . . . . . . . . . . . . 71
Introduction . . . . . . . . . . . . . . . . . . . . . 71
Summary of the Court's advisory opinions . . . . . . . . 72
Year-by-year chronology of relevant events: 1950.1960 . . . 73
: Summary . . . . , , . . . . . . . . .. . . . . . . . . 95X SOUTH WEST AFRICA

Page
Chapter III. Foundations of Respondent's legal argument .... 97
A . General outline.................... 97
C . Effect of the judgment and opinions on the Preliminary 98
Objections ...................... roz
D . Origin and contents of the Mandate ........... 103
E . General principles applicable in determining whether parti-
cular provisions of the Mandate stili exi........ 109
1. General ....................
II . Principles of interpretation and implicat.....
III. operating independently ofttheir consent. express ord
implied ....................

Chapter IV .The Mandatory's procedural obligations ......
A . Introductory .....................
B . obligations......................Mandatory's procedural
C . Whether an implied term can be read into the mandate
instrument ......................
D. Whether an agreement. express or implied. was entered into
during the years 1x5-1946 or thereafter.........
1. General .................... '24
I. The United Nations Charter ........... '27
III.United Nations resolutions of January-February 1946
and establishment of the trusteeship system....tions
IV. Relevant League of Nations resolutions during 1st 129
session of its assembly. 8 to 18April 1946 ...... 133
V. Negotiatious subsequent to dissolution of the Leagu. 137
VI. Practice of States................ 138
VI1. The Advisory Opinion of 1950 ........... 141
VIIX. Advisory Opinions of 1955and 1956cer........ervision 148
X. Judgment and opinions on the Preliminary Objections 152
XI. Conclusion regarding agreement in 1945-1946 or
thereafter ................... 163
E . Succession by virtue of some objective principle of inter-
national law ..................... 163
F . Conclusions re. .d in^the procedural obl.gations..... 164
Chapter V .The lapse of the a an da asea whole ........ 165
PartA ......................... 165
PartB ......................... 175
A. Introductory ....................
B. The scope and purpose of the compromissory clause ... 175
C. The effect of the dissolution of the Permanent Court of
International Justice on the compromissory clause ... 193
1. Introductory ................. 193
II. Definition of treaty or conventio........ '94 CONTENTS XI

Page
III. Did the rights and obligations incorporated in the
Mandate derive their force from internation-
agreement?. ................. 196
IV. Who could have been the parties to any mandate
agreement?. ................. 204
V. Conclusion regarding the dissolution of the Perma-
nent Court ................ 213
D. The effect of the dissolution of the League on the parties
entitledto invoke the compromissory clause ...... 214
1. Introductory .................
II. Interpretation of the phrase "another Member of
III. Can a term be implied in the Mandate to provide
the necessary adaptation to the existence of the
provisions of Article 7 of the Mandate after the dis-
solution of theLeague of Nations?. .......
IV. Was any agreement, express or implied, entered into
during the period 1945-1946 providing for the
adaptation of the compromissory clause to an
existence after the dissolution of the League of
Nations? ....................
V. law, not arising from agreement, express or implied.
VI. Conclusion regarding the effect of the dissolution of
theLeague ..................
E. General conclusion on Part B of Chapter V .......
Chapter VI. Submissions ....... : ..........

ment oftheRefiublicofSouthAfricar-Me..............y the Govern-

A. Participation by members of the United Nations in debates
concerning the "question of South West Africa".8 an.....9

Fipatedar........................f ail States which ~artici- 258
Second part: Extracts from statements by representatives
of certain States .................. 275
B. Article 22 of the Covenant of the League of Nations [See
Annex A to Memorials. V,l.- -, r----,1
C. Mandate for German South-West Africa [See Annex B to
Mernorials, Vol. 1,p. 2011

BOOK III
Chapter 1.Geographical features of South West Africa ..... 289
A. Introductory ..................... 289
B. Location. ...................... 289
1. General ....................
II. Borders .................... 289
C. Area ................ : ...'.... 291
D. Topography ..................... 293XII SOUTH WEST AFRICA

Page
E .Ciimate ........................ 294
1.Introductory .................. 294
II.Rainfall .................... 294
(b) Seasonal distribution of rainfal........ 295
(c) Effectiveness of rainfall........... 297
(i)Variability ............... 297
(ii) Evaporation .............. 298
III .Climatic Regions ................ zg8
F . Vegetation ...................... 301
G . Natural resources ................... 301
1. Introductory .................. 301
II. Water resources ................ 301
III.Landresources ................. 304
(a) Cropping .................. 304
(b) Stock farming ................ 304
(c) Timber exploitation .............. 306
(d) Conclusion ................. 306
IV . Minera1resources ................ 307
V. Marine resources ................ 308
1.Conclusionat......................... 310

Chapter II .Population groups of South West Africa ...... 311
A. Introductory ..................... 311
B. The Eastern Caprivi peoples .............. 312
1. Composition of the population .......... 312
III . Social and political organizati.......... 314
IV. Language ................... 315
V.Religion .................... 316
VI. Economy ................... 316
C. The Okavango peoples ................. 317
1. Composition of the population ..... : .... 317
II. Origin and history ................ 317
III . Social and political organizati.......... 318
IV.Religione ..................... 3318
VI. Economy ................... 319
D . The Ovambo .....................
1. Composition of the population .......... 319
II. Origin and history ............... 320
III . Social and political organization ......... 322
IV .Language ................... 323
V .Religion .................... 323
VI . Economy ................... 324
E. The Bushmen ..................... 325
1.Composition and distribution of the group ..... 325
II.Origin and history ............... 327 CONTENTS XII1

Page
III . Social and politicai organizati.......... 328
IV .Religion .....................
VI .Economy ...................
F . The Dama or Bergdama ................

II.Origin and historystr............:..group .....
III. Social and politicai organizatio..........
IV. Language ...................
V. Religion ....................
VI. Economy ...................
G . The Hottentots or Nama ...............
1. Introductory ... ; ..............
II. Composition. distribution and early history.....
III . Language ...................
IV. Social and political organizatio..........

H . The Herero .....................
1. ~omposition. distribution and earl; history......
III. Languagend p......al orga1i................
IV. Religion .. 1 .................
V. Economy ...................
.1. The Rehoboth Basters .................
J . The Europeans ...................

Ch1800 to 1920H.......................rica from approximately

B . Firçt contacts between the Herero and the Nama ..... 349
C .Early history of the Afrikaner tribe........... 350
D . The era of Nama domination .............. 350
E . The liberation and rise of the Herero .......... 355
F. The early history of the Witboois ............ 358
H..AThe period of Herero domination.............. 359
1. The wars of 1880 to 1884 ............... 361
J . German acquisition of South West Africa ........ 364
K . The wars between Hendrik Witbooi and the Herero .... 365
M. The extension of effective German control over South West 367
Africa ........................ 369
N . The period 1898.1903 ................. 373
O . The wars of 1go3-1907 ................ 374
1. The Bondelswarts rising 1903-1904 ........ 374
II. The Herero-German war 1904-1906 ........ 374
III . The Nama-German war 1904-1907 ......... 375
P . The last years ofthe German period ........... 376XIV SOUTH WEST AFRICA

Page
Q . The position of the various population groups after a century
of 1.rThe inhabitants of the northern and nord-eastern part 377
of the territory..............
II. The Hereros ..................
III. The Nama ...................
IV. The Bergdamas .................
VI The Rehoboth Basters..................

by South African forcesr................South West Africa

BOOK IV

Chapter 1.Introductory ...................
Chapter II. Statement of the law .............
Chapter III .Background information: areaand population ...
Chapter IV .Respondent's policies: the situation in 192.....
B . The economy of the temtory.................
Export trade .....................
Revenue .......................
Agriculture .....................
Railwavs and harbours ................
C . The population .................... 407
D. Summary of the situation in 1920 ........... 409
E. The implications arisi.g from the situationin 192..... 409
II.The role to be played by the European population . 410
II. The role of the Native population ......... 411
F. A policy of differentiation was in keeping with the concep-
tions of the times................. 414
Chapter V . Respondent's policies: initial phases and early develop-
ment .......................... 4'9
A. Introductory ..................... 419
B. economic develo~ment of the Territorv .and the implications
thereof .. ................... . 4'9
C. Considerations affecting the Native groups... 422
D. Earl. staees of economic advancement of the Natives ... 424
1. Labour in the European economy ......... 424
II . Agriculture in the Native reserv......... 425
E. Policy regarding land and rights of residence ...... . 428
F. Development in early years up to the Second World War
Chaterritories........................mparison with other African 430
A. Up to the SecondWorld War .............. 430
B. Developments during and after the Second World War . . 440 CONTENTS XV

Page
Chapter VI1 .Respondent's policies:post-war adjustments ... 457
Annexes toBook IV of the Counter-Memorialfiled by the Govern-
mentof theRepublicofSouthAfrica ............. 489
A . Brief factuai account of the constitutional arrangements in
African countries south of the Sahara. prior to the outbreak
of the Second World War. showing the degree to which the
the legislative and executive processes of governmen... in
489
1. Africah......................s in Centrai and Southem489

Southem Rhodesia ............... 489
NyasalandRh........................ 490
Swaziland ................... 492
Basutoland ................... 493
Bechuanaland ................. 493
II. British controlled territories in East Af..... 494
Kenya ..................... 494
Uganda .................... 495
Tanganyika ................... 496
British Somaliland ............... 497
III. British controlled territories in.West Af..... 497
Gold Coast ................... 497
Nigeria .................... 498
British Cameroons................. 499
British Togoland ................ 5500
Gambia .................... 501
IV. French controlled territories........... 502
French West Africa ............... 502
French Togoland ................ 503
French Equatorial Africa ............ 503
The French Cameroons .......:..... 504
Madagascar .................. $04
V .Italian controlled territorie........... 505
Eritrea .................... 505
Italian Somaliland ............... 505
VI .Belgian controlled territorie........... 505
Belgian Congo ................. 505
Ruanda-Urundi ................. 506
VI1. Portuguese territories.............. 506
VI11. Spanish territorie................ 506
Spanish Guinea ................. 507
IX .Independent States ............... 507
Ethiopia .................... 507
Liberia .................... 507XVI SOUTH WEST AFRICA

Page
B . Brief summary of the constitutional developments in the
same countries afterthe beginning of the SecondWorld War gog
1.Uritish controlled temtories in Central and Southern
Africa ..................... 509
Southern Rhodesia ............... 509
Northern Rhodesia ............... 510
The Federation of Khodesia and Nyasaland .... 511
Swaziland ................... 512
Basutoland ................... 512
Bechuanaland ................. 513
II.British controlled territories in East Afri..... 513
Kenya ..................... 513
Tanganyika .................. 515
Uganda .................... 516
British Somaliland ............... 516
III. British controlled territories in West Afric.... 517
Gold Coast ................... 517
Nigeria ...................... 517
British Cameroons ............... 5'98
British Togoland ................ 520
Gambia .................... 520
IV. French controlled territories ........... 521
French West Africa ............... 521
French Togoland ................ 521
French Equatorial Africa ............ 522
French Cameroons ............... 522
Madagascar .................. 522
V . Italian controlled territorie. . . . 523
Eritrea .................... 523
Italian Somaliland ............... 523
VI. Belgian controlled territories.......... 524
Belgian Congo .................. 524
Ruanda.Urundi ................. 525
VI1. Portuguese temtories .............. 52j
VI11. Spanish territories ............... 526
Spanish Guinea .............. 526
IX Independent States ............... 527
Ethiopia ..................... 527
Liberia.................... 5275. COUNTER-MEMORIAL FILED BY THE GOVERNMENT OF THE
REPUBLICOF SOUTHAFRICA

BOOK 1

CHAPTER 1

GENERALINTRODUCTION

I. On 4 A'ovember 1960 the Governments of Liberia and Ethiopia
(hereinafterusuaiiy referred to as "Applicants") submitted an Applica-
tion to this honourable Court to institute proceedings against the
Government of the Union of South Afnca, now the Republic of South
Africa (hereinnfterusually referred to as "Respondent"). Each Applicant
filed a Memorial on 15 April 1961. Thereupon the proceedings were
joined by an Order of the honourable Court dated 20 Hay 1961. On
30 Xovember 1961 Respondent filed Preliminary Objections relating
to the jurisdiction of the Court, which Objections were dismissed by a
majority Judgment dated 21 December 1962. This Counter-Mernorial
is submitted pursuant to Orders of the Court dated 5 Febniary 1963
and 18 September 1963.

z. Uefore proceeding to a detailed discussion of the matters in issue
it will be convenient to set out in broad outiine the fieldwhich iscovered
hy this Counter-Mernorial.
Applicants sumrnarize in the following terms the case presented by
them:
"The dispute between Ethiopia' and the Union to which this
I\lernorialis addressed, relates to the interpretation and application
of the Mandate for South \%'estAfrica. The subject of the dispute
concerns the, continued existence of the Mandate for South West
Africa and the duties and performance of the Union, as hlandatory,
thereunder. Ethiopia insists that the Mandate is still in force; that
the Union continues to have duties thereunder; that the United
Nations is the proper supervisory organ ta which annual reports
and petitions should be suhmitted by the Union, and-whose consent
is a legal prerequisite and condition precedent to modificationof the
terms of the Mandate; and that the Union has violated and is vio-
lating Article 22 of the Covenant of the League of Nations and
Articles 2, 4, 6, and 7 of the Mandate2."

The nature of Respondent's submissions in reply ta the charges thus
made. mav be set out as followç:
(n, Hespn<leiit firstl!. sul>iiiitsrhar ilic \vlitdc\lniidnte for South \Vc.st
hfric:~I:ipscdon the dissolutioii of rhe I.c:iyc of S.iti;<nttli.it
I<espoodcl~tii~on~cqii~nrl!no loiigt.r~iilqcctruny Iognloblinarioni

1 This quotation is derived from the Rlemorial submitted by Ethiopia. The one
filed by Liberia is in identical termrespect. save for the substitution of the
names ofthe Applicants.
2 Vide 1p. 32. COURTER-MEMORIAL OF SOUTH AFRICA 3

South West Africa, its background and administration, and regarding
circumstances in other countries or territories which mav be relevant
in c\,aluating or explaining iiiea>urestaken 11).Rt.spoii<lent.~olrvhiclimay
bc of aisistaiice tu th< Court by way of conil>arisoiiur illutration.
5. Respondent regrets that the bulk if its Counter-Memorial has
been increased by a certain amount of repetition. In view of the vast
field that was required to be covered in a relatively short time, many
people have contributed to the end product. All efforts have been made
to correlate and dovetail the parts produced by different people into
one integrated whole, but tbis has necessarily been the task of a few
perçons and through pressure of time the aim has not been achieved in
full measure.
6. In Chapter II of the Memorials, Applicants quote extensively from
reports and resolutions of various organs of the United Nations, and, in
particular, frorn the reports of the Committee on South West Africal.
The extracts contain demonstrably wrong conclusions, derived from
wrong factual information and assumptions. Nevertheless, Save where
Applicants in the formulation of their specific charges rely on some
statement in such a report or resolution. or associate themselves with
some allegation therein*?,Respondent does not propose traversing the
degations or conclusions in question-for reasons to be indicated in the
succeeding paragraphs.
7. Applicants' auegations regarding alleged breaches by Respondent
of substantive provisions of the Mandate are contained in Chapters V
to IX of their Rfemorials.In these Chapters Applicants formulate their
charges, and, where so advised, they quote United Nations reports as
sources for their allegations, or they associate themselves expressly with
comments or criticisms emanating from United Nations organs. Res on
dent does not understand the quotations from reports of organs Of th-
United Nations in Chapter 11 of the Memorials to constitute in effect
further complaints made by Applicants. This is particularly so since
Chapter II purports to contain no more than the "history and back-
ground of the dispute"3. The purpose in referring extensively to the said
reports in Chapter II was therefore, presumably, to seek to establish
the existence of a dispute between the parties, and no more.
8. The said reports and resolutions contain political findings and
recommendations made by political bodies or organs. As such the
findings and recommendations, it is submitted, are of no relevance
whatsoever to this Court's judicial function. which is to be exercised
on the basis of the facts, evidence and other material properly placed
before it.
In so far as such reports and resolutions contain purported state-
ments or conclusions of fact, they might conceivably have been of some
to the Court and the parties if it had been possible to place
reliance on them for reasonable accuracy. The very opposite is ttue,
however, as has been stated and as may be demonstrated by one ex-
ample. General Assembly resolution 1702 (XVI) passed on 19 Decem-
ber 1g61c ,ontained the following:

' Vide1,pp. 64-65. 69, 70-71. 73-74. 76-77 79, 83-84
As,e.g.. at1, prgz-195.
Vide heading1,p. 33. SOUTH JVEST AFRICA
4

"Noting with increased disquiet the progressive deterioration
of the situation in South West Africa as the result of the ruthless
intensification of the policy of apartheid, the deep emotional resent-
ments of aii African peoples, accompanied by the rapid expansion
of South Africa's military forces, and the fact that Europeans,
both soldiers and civilians, are being armed and militarily reinforced
for the piirpo.:c of opprcssiiig tlie Ïndigeiiuiis peulili:, al1 of \i.hich
create M increasinglv exploii\.c sirii:itioii \i.lii~fallo\r,cd tu con-
tinue. \villend:ingt:r interiiational ~>eaccniid s~~curity'."

This resolution pr&eeded to provide for the appointment of a special
committee on South West Africa, and charged it, inter alia, to attempt
to secure "E\~acuation of al1 military forces of the Republic of South
Africa from the Temtory" Z.
During May 1962,the Chairman and Vice-Chairmanof the Committee
on South West Africa visited the Territory as guests of Respondent.
They were invited to stay as long as they wished, to visit any part of
the l'erritorv. and to s~eak to anv De,sAn. At the conclusion of their
visit, they siated in a joint communiqué:
"... that in the places visited they had found no evidence and
heard no allegations that there was a threat ta international peace
and security within South West Africa, that there were signs of
militarisation in the territory, or that the indigenous population
\vas being exterminated 3".

It is apparent therefore that the factual assumptions on which the
said resolution of the General Assembly \vas based, were entirely,falla-
cious and were shown to be such as a result of the visit of the Chairman
and Vice-Chairman of the said Committee.
It is further apparent that no probative value can attach to purported
statements or conclusions of fact in the reports and resolutioiis, and
that to canvass them fully would be a lengthy processwhichcould serve
no purpose in these proceedings. If the Court should, however, consider
tliat it could be assisted hy such a canvassing, Respondent would gladly
co-operate in that regard at the oral stages of the proceedings. Mean-
while, for the reasons given, the reports and resolutions will not be dealt
with to a greater extent than has been indicated.

9. It will be noted that in many instances Respondent does not puote
any published work or authority in support of statements made in the
succeeding rolurnes. In such =es, apart fromfacts which Fe sogenerdy
aiid weU known as to require no citation, the information is mostly
derived from Respondent's own oficial sources. If any doubt is cast on
the accuracy of such information, or if the Court wishes it to be amplified
or explained, Respondent would willingly make the necessary evidence
available during the oral proceedings.
IO. It may be convenient to give a brief account of the geiieri~lscheme
of the Counter-Memorial. The present Book (Book 1) contains, apart
from this introduction, various matters of general importance, such as

No. '7 (A~~Ioo), pp.&o.2 (XVI)..1- Dm. 1961.in G.A.. O.R.. Sizteerth Scsr.. SUP.
Ibid.. para.2 (b), p40.
' U.N. Press Rclease GAl2~5or.26 IIav 1962, loint Stalemenon Prclorio talks
/ollouiinguisiO/ U.N. ~ep~e~entaliver to.so"lhWcsi COUNTEK-MEMOR I.4LSOUTH AFKICA 5

maps of Africa' and of the Territory and Respondent's Submissions3.
Book II consists of Respondent's legal argument (with necessary sup-
porting facts) relating to the issues set out in paragraph z (a) and (b)
above. Book III contains background information relating to the geo-
graphy, history and peoples of the Territory. Applicants' allegations
regarding breaclies of Article 2 of the Mandate' are dealt with in Books
IV, V, VI and VII. .
Book VI11 contains Respondent's replies to Chapters VI, VII, VI11
and IX of the Ilemorials.
II. As indicated above, the present Book also contains Respondent's
Submissions on the charges made by Applicants. Save in regard to
Respondent's reply to Chapter V of the Memorials,Submissions are ako
set out titthe end of the various self-contained portions ofthe Counter-
Mernorial. In view, however, of the fact that Respondent's reply to
Applicants' Chapter V is spread over four books, no separate Sub-
mission relevant to the said Chapter is contained elsewhere in this
Coun ter-Memorial.

' Nat reproduced.
Vide pocket in back cover.
' Videpara. 11, infra.
* Vide 1,pp. 104ff. CHAPTER II

SUBMISSIONS

Upon the basis of the statements of fact and law as set forth in the
several books of this Counter-Memorial, may it please the Court to
adjudge and declare that the Submissions of the Governments of Ethiopia
and Liberia as recorded at pages 197 to 198 of their Memorials are
unfounded and that no declaration be made as claimed by them.
In particdar Respondent submits:
I.That the whole Mandate for South West Africa lapsed on the
dissolution of the League of Nations, and that Respondent is, in conse-
quence thereof, no longer subject to any legal obligations thereunder.
2. In the alternative to(1) above,and in the eventof it being held that
the Mandate as such continued in existence despite the dissolution of the
League of Nations :

(a) Relative toApplicants' Submissions Nos. z, 7 and 8:
that Respondent's former obligations under the Mandate to report
and account to, and to submit to the supervision of, the Council
of the League of Nations, lapsed upon the dissolution of the League,
and have not been replaced by any similar obligations relative to
supervision by any organ of the United Nations or any other orga-
nization or body. Respondent is therefore under no obligation to
submit reports conceming its administration of South West Africa.
or to transmit petitions from the inhabitants of that Temtory, to
the United Nations or any other body;
(b) Relative toApplicants' Submissions Nos. 3, 4, 5. 6 and 9:
that Respondent ha? not, in any of the respects alleged, violated its
obligations as stated in the Mandate or in Article2of the Covenant
of the League of Nations.

(Sgd.) R. MCGRECOR
(Sgd.) J. P. VERLOREN VAN THEMAAT
Agents of the Govemment of the
Republic of South Africa CHAPTER 1

INTRODUCTION TO BOOK n

1. This book contains Respondent's reply to Applicants' Submissions
1,2, 7 and 8, in which they request the Court to declare the foliowing
in law :
"1. South West Africa is a territory under the Mandate conferred
upon His Britannic Majesty by the Principal Allied and Associated
Powers, to be exercised on his behalf by the Govemment of the
Union of South Africa, accepted by His Britannic Majesty for and
on behalf of the Government of the Union of South Africa. and
confirmed by the Councilof the League of Nations on December 17.
1920;
2.the Union of South Africa continues to have the international
obligations stated in Article 22 of the Covenant of the League of
Nations and in the Mandate for South West Africa as well asthe
obligation to transmit petitions from the inhabitants of thatTem-
tory, the snpervisory functions to be exercised by the United Na-
tions, to which the annual reports and the petitions are to be sub-
mitted;
...........................................................

7. the Union has failed to render to the General Assembly of the
United Nations annual reports containing information with regard
to the Territory and indicating the measureç 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 Union has the duty forthwith to render such annual
reports to the General Assembly;
8. the Union has failed to transmit to the General Assembly of
the United Nations petitions from the Temtory's inhabitants ad-
dressed to the General Assembly; that such failure is a violation of
its obligations as Mandatory; and that the Union has the duty to
transmit such petitions to the General Assembly; l"

2. Respondent does not dispute that it ha in fact refused to render
to the General Assembly of the United Nations annual reports such as
it nas obliged to render to the Council of the League of Nations. Re-
spondent equally does not dispute that it has refused to transmit to
the General Assembly petitions from the Territory's inhabitants ad-
dressed to the General Assembly. Respondent denies, however, that it
wa in law obliged to render such annual reports. or to transmit such
petitions, to the General Assembly. Applicants' Submissions I; 2,7 and
8 therefore raise questions of law only, namely whether the Mandate
stlll exists, and, if so, whether the supervisory functions of the Councll
-
Vide 1pp. 95, i97-198.8 SOUTH WEST AFRICA

of the Lcague of Nations have passed to the United Nations. Respondent
contends that both these questions are to be answered in the negative
-and, indeed, that acceptance of this contention would dispose of the
whole of Applicants' case, which is hased on the continued existence
of the Mandate '.
3. The major part of this Book consists of legal argument in support
of Respondent's aforesaid contention. It has been found desirable,
however, also to set out the historical events, which are, in Respon-
dent's submission, relevant to a proper appreciation of its legal submis-
sions. This topic forms the subject-matter of the next Chapter.
4. In view of the overlapping of the issues now raised with those
dealt with in the Preliminary Objections, there is to some extent a
repetition in this Book of material wbich was contained in Respondent's
written Objections or its Oral Statement relative thereto. Consideration
was given to the possibility of incorporating such material into the
present argument merely by reference to its original source, and thus
to reduce the bulk of the Pleadin~s. It was decided. however. that the
xd\.niitngei atteiidniit iipoii fullo\i.tliticourse \vould ht:out\ieiglicd
h!. tlicincon\~cnienccraiiicd to riicriil~rrittiçCuurr in htrving to garher
Resuondent's armment in unco-ordinated bits and oieces frim anum-
berof different iourtes. Consequently, although the'rneasure of repeti-
tion is regretted, this Book presents in one self-contained unit Re-
spondent'sreply to Applicantsi Siibmissions I, z,7 and 8.

Vide ChapterV, Pari A, para.r7 (c), infra CHAPTER II

HISTORICAL BACKGROUND

Introductory

I.This Chapter contains an account of the historical background to
the present proceedings, but only to the extent relevant to the legal
issues raised under Submissions Nos. 1. z, 7 and 8 at pages 168 and
169 of the Applicants' Memorials'. The historical facts which are rele-
vant only to the issues raised under Submissions 3, 4, 5, 6 and g iii
the Applicants' Memorials-namely whether in its administration of
*th West Africa Respondent has violated provisions of the Mandate
-are dealt with elsewhere in the Counter-MemorialZ. For the sake of

convenience. particularly as regards replying to certain of the allega-
tions by the Applicants in Chapter II of their Memorials, the suhdivi-
sions of that Chapter are broadly adhered to in this historical account.
In view, however, of the division of histoncal matter into the two parts
aforestated. Resoondent will in this Cha~t~ ~ ~t deal with. or furnish
fullreplies ;o. tgoic aliegations and cit:itioni from reports \;,tiiclirelate
to charges that Kespondent has \.iolated substanti\,c oblig:itioiis coii-
cerninc the a<lininistr;itiun of South \\'est ,\frica. Tlitîe:inatters are. in
so farvas is necessary, dealt with elsewhere in the ~ounter-~emoriil'.

Origin and Nature of the Mandate System

2. Although the term "mandate" had been used before in regard to
certain international relationships', it first acquired a special meaning
in international law when the mandate system of the League of Nations
was iustituted. This system originated, together with the League, from
the peace settlements effected after the First World War. As Quincy
Wright remarked:

"This system, like most other political innovations, \vas not a
product of disinterested juristic thought nor of detached scientific
investigation but was a compromise invented hy the Versailles
statesmen to meet an immediate political dilemma 5."
3. The dilemma which required resolution by compromise involved,

' Vi& Chap. 1, supra.
' Vide Book III cl seq. oi the Counter-Mernorial.
' Vide Book III et srq.
' In this respect "ide Hull. H. D.. &Iondotes, Dependencies and Trusleeship (i948).
PP. 17 fi.and "The Trusteeship System". B.Y.B.I.L.,Vol. XXlV (1947). pp. 44-46:
Wright, 9.. Mandates undcr the Lcngue of Nolions (1930). pp. 15-23; Schneider. \V..
Dos V6lkcncchllichcMondat (rgz6). pp. 14ff.; hlohr, E. G.. Die Fragcdcr.Souuer8nildl
in den Mniidatsgebieten (1928), p. 4; Temperley. H.W. V..A Hislory ofthe Pcore
Confcrenrcof Paris (1920-rgzq), Vol. VI, p. 502; Kennedy, W. P. M.and Schlosberg.
H. J..The Law and Custam of the South AfricrinConstitution (1935). pp. 5'4-515;
R~lin. H., "Le Systeme des Mandats Coloniaux", R.D.I.. Vol. XLVII (i<)m).
PP.'Wright. op. çil., p. 3.10 SOUTH WEST AFRICA

hnefly. a clash of views and aspirations within the ranks of the Allied
and Associated Powers relative to the future of temtones and colonies
conquered from enemy powers during the war.
4. Among such territories was German South West Africa, which
had heen surrendered to South African military forces in July rg15,
as a result of which Kes~ondent remained in militarv occu~ation for
thr rrinaindçr of the \var and tlierenfter pending tlic yi:ice seitlements.
Siniilar sitiintioris ol>t;iinedin respect of other terrirories conquered and
oc~.unied hi. other Allied and hsoci~tcd Poii.ers. l'hcsc iricliide<i. inter
alia,'the former German colony in New Guinea, which was occupied
by Australia; that in Samoa, by New Zealand; the German islands in
the Pacific Ocean north of the Equator, by Japan; and various German
territories elsemhere in Afnca, by Great Britain, Belgium and France.
Fiirther north, various portions of the Ottoman Empire were in Allied
occupation.

5. During the war, secret treaties and agreements were made between
some of the Allies whereby their respective claims to various occupied
territories were to be recognized in the event of an Allied victory. And
the British Imperial War Cabinet decided in March 19x7, that the
three Dominions, Australia, New Zealand and South Afnca should he
allowed to annex the ahove-mentioned occupied territories, adjacent to
their own, namely German New Guinea, German Samoa and German
South West Africa respectively '.
On the other hand, certain proposals for international control of
conquered colonies. some of them even relating to al1 coloniesZ,were
also made during the war years.
In 1g18, G. L. Beer, historian, and adviser to President \Vilson of
the United States of America, connected such proposals with others
then current for the establishment of the League of Nations. He pro-
posed a mandate system for hlesopotamia and certain of the German
colonies, urging that the administration of these areas should be en-
tmsted to "different States acting as mandatories of the League of
Nations" '. Beer considered, however, that the mandate system could
not be applied to South West Africa, and recommended that this region
he incorporated in the Union of South Africa*.
Like Beer, General Smuts, in the publication referred to hy the
Applicants 5, linked a proposed mandate system with a proposed League
of Nations. He limited his proposal to "temtones formerly helonging
to Russia, Austria-Hungary and Turkey", and expressly excluded the

Vide Lloyd George. D., Thc Truth about the Peace Treafies (1938). Vol. 1, pp.
114-123 and Vol. II, 11.766: Spiegel, M.. Das V81kerrechllicheMandat und seins
Anwcndung aul Pol6sfiria (1928). pp. 8-9: Temperley, op. cil.. Vol. 1. p. 195: Logan,
R. W.. The African Mandates itt World Politics (1948).pp.1-2:Townsend, hl.E ,
The Rice atrd Fat1 of Germany's Colonial Empire (i93o), pp. 363-369, 377-378.
Vidd Hobson. J. A.. Towards International Gooernment (1915). Vide also the
discussiun by Potter, P. B., in "Origin of the System of Mandates under the League
of Xations". A.P.S.R.. Vol. XVI. Xo. 4 (Sov. 1922). pp. 563-583.
' Beer. G. L.. Africnn Quesfions of tParisPeacc Confrrence.ed. by L. H. Gray
11923)..p. 431.
Ibid..p.443.
' Smiits. J. C.. The League of Notions: A Practical Suggsrfion (1gr8). p. 15 and
1.P. 34. COUNTER-MEMORIAL OF SOUTH AFRICA II

"German colonies in the Pacific and Africa", since in these cases "it
would be impracticable to apply any ideasof political self-determination
in the European sense" '.
The United States of America was not a party to the secret treaties
and agreements mentioned above; she entered the war after most of
them had been concluded. At the termination of the war President
Wilson strongly advocated a policy of "no annexations"; and he went
to the Paris Peace Conference determined to secure application of the
proposed mandate system, in an extreme form, to al1 ex-enemy colo-

nies and possessions. His proposals, as contained in his drafts of the
Covenant, included that the League would be vested with complete
authority and control, that it would be entitled (not obliged) at its
discretion to delegate to a State or "organized agency" powers to act
"as its agent or mandatory", and also that by reason of an appeal
from the people of the territory the League could substitute some other
State or agency as mandatoryz. In keeping with this conception, his
Third Draft proposed that the expenses of Mandatory Govemment
would, if necessary, be borne by al1the Members of the League3.
6. From the above, the makings of conflict at the Paris Peace Con-

ference wiii be manifest. The future of the German Colonies was dis-
cussed as from 24 January 19x9 in the "Council of Tenu, which consisted
of the heads of government and foreign ministers of the United States of
America, the United Kingdom, France, Italy and Japan. Representatives
of Australia, New Zealand and South Africa were allowed to be present
and to express their views at the discussions concerning the future
of the former German colonies in New Guinea, Samoa and South West
Africa.
There was fairly general agreement that a mandate system was to
be established. The controversy concerned the contents of such a
system, and particularly the peoples and temtories to which it was to
be applied, especially inasmuch as there was general recognition of the
wide differences between the various peoples and territories concemed,
ranging from, on the one hand, developed societies to, on the other,
peoples still living in the Stone Age'. The representatives of the three
Dominions strongly pressed their cases for incorporation of the respec-

tive territories, and were supported by the British Prime Minister, Mr.
Lloyd George. After representatives of Japan and France had also
spoken in favour of annexation in their cases, President Wilson's re-
action was so strong as to threaten "a break-up of the ~onference"~.
The Conference reached a state of apparent deadlock on 27 Janu-
ary 1919. There followed negotiations behind closed doors for two
days, during which Lloyd George secured the agreement of the repre-

'Smuts, op. cii.pp. rz und ij.
Vide particularly paras. 1. II anIII of his Second Drait,as arnended by his
Third Draft: Baker, R. S., Woodrow Wilson and World Setllement (1gzz-1gz3).
Vol.~bid.,.;.127.110. 126.129,
' Vide For. Rd. U.S. : The ParisPeace Conferença, rgr9, Vol. III.p. 786 Accord-
ing to an article in the United Nations Rcview of September 1954 (Vol. 1. No.3.
p. 31).the people in some parts of New Giiinea still live "in Stone Age conditions
of primitive saïagery". Vide also Vol.z. Ho. 3 (Sep. ,955).p. 34.
' Lloyd George, op. cit.. \'ol. 1.gjo12 SOUTH WEST AFRICA

sentatives of the Dominions to a document which he handed in as a
proposal to the Conference on 30 January, announcing that it-

"did not represeot the real views of the Colonies[Dominions]; but it
had been accepted by them as an attempt at a compromise .. .
because they fuliy realized that there could be no greater catastrophe
decision"t1. delegates to separate without having come to a definite

He also stated that ". . .it was only with thegreatest difficulty that the
representatives of the Dominions had been prevailed upon to accept
the draft submitted, even provisionaily"; and later ".. . they had
accepted his proposals, but only as a c~mpromise"~. The document
contained provisions which, with unimportant alterations and one
important addition3, eventuallv became Article 22 of the Cotrenant '.Its
essential feature, as Lloyd Georgeexplained, was the division of mandates
into three classes in recognition of the wide range of differencesbetween
the various communities and territories. He described the third of these
classes (the eventual C Mandates) as:
"hlandates applicable to countries which formed almost a part of
the organization of an adjoining power. who would have to be ap-
pointed the mandatory ?'' (Italics added.)
It was in this category that German New Guinea, German Samoa and
German South West Africa were to be put.
President Wilson indicated that the document "made a long stride
towards the composition of their differences", but at the same time
snggested deferment of a decision. A somewhat heated discussion en-
sned in which the Prime Minister of Australia rendered clear that
Australia really desired "direct controi" and that for his country and
New Zealand the document "represented the maximum of their con-
cession"6. A speech, generally described hy commentators as "concilia-
tory", was theu made by the South African Prime Alinister, General
Botha, in which he stated, inter alia:
"He appreciated the ideals of President \Vilson. ... They must
remember that their various peoples did not understand everything
from the same point. ... Personally he felt very strongly about the
question of German South West Africa. He thought that it differed
entirely from any question they had to decide in this conference. but
he would be prepared to Saythat he was a supporter of the document
handed in that moming [by Lloyd George], becausehe knew that, if
the idea fructified, the League of Nations would collsist mostly of
the same people who werepresent there that day, who <cnderstoodthe
positio?tand who would not make it impossible for any mandatory to
govern the country. That was why he said he would accept 1t7."
(Italics added.)
After fnrther discussion. President Wilson agreed to accept the pro-

' Ibid.. p.790.: The Paris PeaceConferenca.rgrg,\'O].III,p. 785.
' Para. 9 ofArt.22. concerning the Permanent Mandates Commission.
' Fortext vide For. Rel. U.S.: The Paris Pare Contcreiicc, 1919.Vol. III, pp.
795-796.
' Ibid., p.786.
FOI. Rel.US.: The Pn~is Peace Conference, igrg. Vol. III. p. Soo.
' Ibid.. pp.801-802. COUNTER-MEMORIAL OF SOUTH AFRICA 13

posal, which was then adopted, with very minor amendments'. In
its eventual form, as Article 22 of the Covenant 2.it hecame part ofthe
Treaty of Versailles, which was signed on 28 June xgxga ,nd came into
force on IO January 1920.

7. The main elements of the com~romise embodied in Article 22
uf 11.c Cu\.~iiaiit :ire rendcrcd c1e;irbS'tlic :il)u\.ehistorii:il Lxickgroiiiid.
As \vas coiiiiiieiitctl geiicrdlly by 11. Iznppard. Secretary :iiid suhic-
auentlj. niciiibei of tlie 1'eriii:iiiciit.\laiidares Corninissioii: "The ternis
if tlie &xnl)roiiiise were ob\.ious: t'resideiit \Vilsonsucceeded in pre\.eiit-
iiig aiiiiçxntiuri; tlie sonquerors in ret;iiiiirig their conquests'."
.ilore ~articularlv. iii return for tlie cuiicesiion that al1 tlic Gcrman
~olonial~~ossessio~s b'ouegbe into the mandate system, President
\Vilson had to abandon certain of the extreme aspectsof his proposais
conceming League supremacy and control and the consequent payment
of expenses of mandate administration by League hlembers. Al1Man-
datories were to be States, not "organized 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 the C Mandates the
allocation "would have to be" to the adjacent claimant States4.The

relationship between the League and Mandatories was in each case
regulated hy a mandate instrument, the terms of which were assented
to by the Mandatory and would normally require its consent for altera-
tion5. Al1 this was very far removed from the envisaged free League
discretion to appoint and change hlandatories. Again in the case of C
Mandates, the Mandatories were to have powers to adniinister the terri-
tories "as intemal ~ortions" of their own. And there would be no ob-
jection to eve2ual 'amalgamation that could naturally result from such
administration, if agreed toby the inhabitants. At the Peace Conference
President \Vilson sGessed that-
"It was UD to the Union of South Africa to make it so attractive
tt~t Soiitli \t'ru Alri<:>woiil~icunic into tlic Ciiion of thçir ovn trce

\vil1 . ..If î~ic;ejsfuI :idministrrltioi~h). a m>iitlntory iliuultl le:id,Io
union witli tlir: iii:!ind:~,~..IC \\.ould bc tlic I.i>tto obicct . .."";
and later he said that "if South Africa managed South West Africa as
weil as she had managed her own country, then shewould be married to
South West Africa" 7.

' Miller, D. H., TheDraffiug ofthe Couenont (1928), Vol. II. pp. 213-228.
A draft clauseon mandates was introduced by Srnue at the Sixth hleeting of
the League of Sations Commission on 8 February 1919. As to amendmen* to this
draft made in the Levgue Commission, vide hlillerop.cil..Vol. II. pp. 283. 285.
306. 314-315. 323, 333.334, 362, 384-385 and 679-680. At the Sixth hleeting. an
attempt was made to inçert the word "if" between the words ''as"and "integral"
in the provision relating to C Mandates, which read, "South West Africa and
certain of the islandn in the South Pacifi...can be best administered under the
lvws of the Mandatory State as integral portions thereof". After discussion, the
word "if" was not inserted.Vide RIillerop.cit., Vol. 1, pp. 186 und 190 and V11.
pp. 273, 275 and 286.
' Rappard. W. E., "The Mandates and the International Trusteeship System".
Varia Polilico (1953). p. '82.
' Vide Lloyd George's statement on 30 January 1919. para. 6. supra.
For. Rel. U.S.:tTheMPoris Pence Conference.1919,Vol. III. pp. 74'-742.
' Ibid.,p. 788.I4 SOUTH WEST AFRICA

Finally, the "open door" principle of equal trade opportunities for
Memhers of the League, although originally envisaged for aii Mandates.
was excluded in the case of C Mandates1. This exclusion was sub-
sequently referred to hy Lord Milner, Chairman of the Commission
appointed to frame draft Mandatesz, as "a compromise actually accepted
by the Powers"
8. In view of the ahove features, commentators quite naturally re-
ferred to C Mandates as being in their practical effect not far removed
from annexation.
Thus, during the First Session of the Permanent Mandates Commis-
sion, Mr. Ormshy-Gore, the United Kingdom member, stated: ". . . this
case of SouthWest Africa was, indeed, a typical example of the complete
political incorporation of a mandated territory in the territory of the
mandatory Power" 4.
Margalith wrote:

"It has heen found necessary, also, to devise three types of
administration, and to give in the case of C Mandates, powers
that amount nearly to annexation. Otherwise the British Dominions
could not have heen won over to the acceptance of the mandates
principle at alli."
When introducing the Peace Treaty in the British House of Commons
on 3 July 1919L ,loyd George stated:

".. . South West Africa, running as it does side by side with Cape
Colony, was felt to he so much a part, geographically, of that area
that it would he auite imhossible to treat it in the same wav as vo,
uould a co~ol~2 i,.o;)oor 3800 iniiei :iwny iroin .îccnrrc of ;iiimiiiis-
tratioli. Tlterz ts no dntthr <il.,Irh.trSouth IVcrt Jlrtr~ i~illherome
ir~itnlt.,~u.~rl oftlie 1:cJ~rltiun of 5outli <\fric:#Ir \vil1hc colonizcd
I)!.ycoplc froriiSuutti ;\irici. i'oii coulJ nor Iiavetloiiznn\.rliing clse.
\'ou could nut Ii:i\.cset cusroms harricr; anclIiave n differt:iirs\.stcm
of administration 6." (Italics added.)
And Temperley wrote:

"Clearly the development of this territorymust in the main come
from the adjoining Union of South Africa, and its progresswould be
seriously handicapped if it wereadministered as a distinct entity with
separatenative,fiscal, and railroadpolicies. As, however,it was teared
that an exception made in one case-no matter how valid it might be
lnight open the door to others, a general application of the system
was insisted ufion. This had some unfortunate consequences since,
mainly in order to meet the special circumstances in South Africa, a
hroad formula had to he adopted which was not completely satisfac-
tory as faras other areas were concerned'." (Italics added.)

' Vide final words of Art.22 (6).
Vide para. rI,ilifra.
Confdvence de ln Paix 1919-rgzo, Recueil des Actes de la Conférence. Partie VI.
Traitds avec les Puissances Ennemies mis en vigueur, A. Prdpavalion de la miss en
vigueur, Fasc., p.353.
'P.M.C.. Mi%.. ....o.1~.
'Margalith. A. M., The International Mandates (1930).pp. 33-34
' Zbid., Vol. II, pp233-234.III, p95. COUNTER-MEDIORIAL OF SOUTH AFRICA '5

o. It will be observed from the aforeeoina that considerable over-
sikplification, tending towards a wrong ~mp&ssion, is involved in the
Ap-.icants' statement in their Memorials that:
"The Mandate System, as ultimately given expression in Article 22
of the Covenant of the League of Nations and in the several Mandate
Agreements, represented a victory for the opponents of the principle
of annexation '."
A compromise can hardly be regarded a.s a victory for either side.
Bv itself. the A~Dlicants'over-sim~lification mav be unimuortant. But
certain ither sti&nents by them demonstrate that negation of the sig-
nificance of the com~romise could lead to erroneous conclusions.
So, for example, if is unsafe to assume that the mandates system as
finally agreed upon, and particularly as regards C Mandates, could be
interpreted in terms of quotations from General Smuts' publication.
The quotations set out by Applicants at 1, p. 33, relate to a proposed
system which the author considered to be totally inappropriate for those
territories which eventually became C alandates' and which could only
be accommodated in a specially adapted system, agreed to by way of
compromise.
Similarly there is no justification for Applicants' expression "so
striking a reversa1 of ~oncept"~, as applied to a 1920 speech by General
Smuts in which he, in common with the commentators mentioned in
paragraph 8 above, spoke of the relationsliip between the Union and

SouThese and other attempts in the hfemorials to disparage policies

directed towards closer assimilation between South Africa and the
Territory as being somehow in conflict with duties undertaken by Re-
spondent, will be dealt with in another part of this Counter-Mernorial.
Here Respondent merely wishes to stress that they do not accord with
the expressed intentions of the statesmen who created the mandate
system. Respondent accepted the obligations which the hfandate for
South West Africa involved for it; and it has always regarded compliance
with those obligations as being a matter of importance-according to
their letter and spirit during the lifetime of the League, and according
to their spirit thereafter. But itresents and resists attempts at the uni-
lateral imposition upon it of suggested duties which were excluded from
those undertaken, and which would amount to a repudiation of the
compromise whereby Respondent was induced to agree to the mandate
system being rendered applicable at al1 to the case of South West
Africa.

The Framing of the Mandate for South West Afnca

IO. In terms of Articles 118, 119 and 257 of the Treaty of Versailles,
Germany renounced al1 rights in or over her colonial possessions in
favour of the Principal Allied and Associated Powers.
On 7 May 1919, thus even before the Treaty of Versailleswas signed'
the Council of Three, represented by M. Clemenceau, President Wilson

' Vide 1.p.33.
Videpara. 5. sr*pra.
' 'IheTrïuty8waç signedon 28 June 1919 and came into forcc ozo Jan. 1920.16 SOUTH WEST AFRICA

and Mr. Lloyd George, announced that they had decided on 6 May as
to the disposition of the former German Colonies, interalia, as follows:
"German South West Africa: The Mandate shall be held by the Union
of South Africa1."

II. Before the end of the Paris Peace Conference of IQIQ. a Mandates
Coinniijsion \v;<esiablished and \v;isinstriictcd bg tlic Sil;reme Council,
i>,teyrilia"Togivc attention to tlir ediiing of draft mandatesZ." (.ïrans-
lation.)
The Commission,under the chairmanship of Lord Milner, met for the
first time on 28 June 1919, when a draft C Mandate was submitted for
discussion by Lord Afilner). At its next meeting on 8 July 19x9 the
Commission had for discussion, in addition to the draft C Mandate, also
two draft B Mandates suhmitted respectively by France' and theUnited
States of America5. On the next day, g July 1g19, the Commission,
alter discussion and consideration of the two B drafts, approved ternis
as a pattern for B Mandates. On IO July 1919, the Commission resumed
consideration of the C draft, which had meanwhile been altered in
certain respects, and approved terms as a pattern for C Mandates.
On the basis of the Commission's decisions and recommendations.
draft mandate instmments were eventuallyprepared by the legal experts
of the Drafting Committee of the Peace Conference. These drafts were
first cast in the form of conventions6 and the intention had originally
been that such conventions should form annexes to the Peace Treaty '.
By the time they were submitted to the Council, as to be recounted be-
low, they had, however, heen recast in the form of Council resolutions.
12. It was in the deliberations of the above-mentioned Mandates
Commission that a proposa1 for a compromissory clause in the man-
date first came to be discussed. In view of certain questions to be con-
sidered in argument regarding tlie scope and purpose of the compromis-
sory clause in the Mandate for South West Africa, it may be convenient
to indicate briefly the relevant history of the clause in the Mandates
Commission.
Xeither Lord Milner's orieinal C draft nor the French B draft con-
t;iiiicd ;in? c~myroniis~orgcïaiisc. The United States 13drnft, howt.\cr.
providecl in iorisider:~t>leJetail for coniriierci:il nnd other right; for
State hlcmbcrs of tlie Le~cu- of Nations aiid tlirir n;itionlls. suzh as:
f.), the oDen door ~olicv in trade and commerce for the benefit of
subjeLts of me&ber States (Art. 5);
(b) freedom of religion and rights of missionaries who were nationals
of member States (Art. 6):
(c, 1:qiia1opl,ortunity in ionimerce ;1ii11 nn\.ig;ition for mznihcr ct:iit:s.
ancl ~>rohihitiuiioi discriiiiii~;itioiiL~r\i.r~rl~ sublects of riiciiibcr
States (Art. 7) ;
(d) concessions in respect of railways, post offices, telegraphs, radio

' For. Rel. U.S.: The Paris Peace Con/erence, 1919. Vol. V. p. 508.
Conférenced6 la Paix 1919.1920, Partie VI, A,ierFasc., p. 327
' Ibid.. pp. 329.330.
' Ibid.. pp. 343-345.
' lbid.. pp. 339-342.
' Vide Report by-4hl.Hymanses tothe Council of the League of Nations. L.ofN.,
O.J.. 1920. No.6, pp 335, 338. COUNTER-MEMORIAL OF SOUTH AFRICA 17

stations and other public works or services, without distinction
between subjects of member States (Art. 7a);
(e) a clause in tlie nature of a most-favoured-nation provision to
operate in favour of member States and their subjects (Art. 76).
And it proceeded toprovide foradjudicationin the followin~terms:
'if nny <lil>ut& -lioiill.xri;e.bet\iren tliv \Icnibers or the Lcÿgue
of S\'3tionsrcgarding rli~.iiitt:rpretiitio(sr;ipplicatiun of rt~epresent
conventioii and the disr>utecannot be srttléd bv riecotiiitioii. it will
be referred to the ~eAanent Court of ~nternahon~l ~ustice which
is to be estabfished by the League of Nations.
The subjects or citizens of States hlembers of the League of
Nations may likewise bring claims conceming infractions of the
rights conferred on them by Articles 5, 6. 7, 7a and 76 of tliis
Mandate before tlie said Court for decision. The judgment rendered
by this Court will be \vithout appealin both the preceding cases and
wili have the same effect as an arbitral decision rendered according
to Article 13of the Covenant." (Art. ~j.) (Translation.)
In its consideration of the B drafts on g July 1919, the Commission
took as a basis for discussion the French draft, clause by clause. But
inasmuch as the provisions in the French draft for rights to be conferred
upon member States and their nationals were cast in broad terms only.
the question arose whether more detailed stipulation such as contained
in the United States draft \vas not to be preferred. In this regard Lord
Robert Cecil, a representative of the British Empire, is reported to have
stated as follows:
"me] thought that that question was iinked with the right of re-
course to the International Court. If the rieht of recourse were to
be grantcd. it ivould bc przfi:rnblc inercly tclay dùwn tlic priiiciple
of equ;ility and Ie;ive it to tlie Court to aliply the principle to
i)articular cajes. . . . li. onthz ollierh.rir,lno rieklotrccr,urselu Ihc
Conrt was to be given, ii hould be necessary to eliborate stipulations
in detail '." (Translation.) (Italics added.) . .
Thereupon consideration was given to the adjudication clause in the
United States draft. Botli the representative of Fiance and the Chair-
man of the Commission, Lord Milner. were opposed to the idea of
rendering the proposed recouse to an international court available to
individnals, Lord hlilner stating, inter alia: . .
"He [Lord hlilner] thonght that there would certainly be advan-
tage in transferring the settlementof yuestions such as thoserelating
to rightsof pro erty from the political to the legal sphere, but he re-
quested that t ge Governmerit which was to decide whether a claim
sbould be submitted to the Court should undertake,responsibility
thereforz." (Translation.) (Italics added.)
Lord Robert Cecil then suggested that the second paragraph of the
compromissory clause should read:
"The hIembers of the League of Nations wili also be entitled on
behalf of their subjects or citizens to refer claims for breaches oftheir
rights .. .3"

' Confdrancede laPoix 1919-1920I. 'artie VI. A, Fsc.. p. 348.
Ibid., p. 349. . .
' Ibid., p3jo.18 SOUTH WEST AFRICA

This suggested alteration met with the approval ofthe representative
of the United States. and was adooted. The Commission then reverted
to the French draft, and tentative$ approved,with some arnendments,
its provisions for rights of member States and their nationals. Thus the
reference to "Articles 5, 6, 7, 7a and 76" in the adjudication clause
was omitted.
When the Commissionthereafter considered the draft for CMandates, '
that draft had been amended, inter alia, by providing forthe first time
for freedom of entry and residence on the part of rnissionaries who

were nationals of Members of the League, and, also for the first time,
for a compromissory clause in terms of the kst paragraph ofthe United
Statesdraft clause for B Mandates 1.
In the process of further drafting the second paragraph as approved
bv the Commission for B Mandates was also omitted from al1 N Man-
dit<: instrumciits save tliat for Tanganyik~. Ille reason for .;ucti cliiiii-
nation secms evidcnt: once it \vu dccided tliar only States should tiave
recourse to the International Court. the second ~Gaera~h in the adiu-
dication clause became redundant,' its provisioAs being in effect im-
braced in the first paragraph. The reason forthe retention of the second
paragraph in the mandate instrument for Tanganyika, cannot be
established with certaintyZ.
As indicated above. al1 discussion in the Commission regarding the
coriipruiiiissury claiijc \i.:~iconceriic~l \iitli its operatioir 'rzlati& to
~)rosl)ectivcprovijioiij for rifilits ;ind privilcgei tu be accordctl ru rn<:iii-

ber Sr.irei and their n;ition:ils: rlic record rcveali no <Iisciix;ionindicnting
contemplation of possible operation of the compromissory clause in an?
other respect or for any other purpose.
The wording of the clause as it appeared in al1 the draft mandate
instruments eventually submitted to the Council of the Leaye forits
approval (except in the case of the Mandate for Tanganyika) was as
follows:
". .. if any dispute whatever should arise between the Members of
the League of Xations relating to the interpretation or the applica-
tion of these provisions which cannot be settled by negotiation,
this shall be siibmitted to the Permanent Court of International

Justice provided for by Article 14 of the Covenant of the League of
Xations3".
13. Transmission of the draft mandates to the Council of the League
was delayed because of a difference of opinion among the hlembers
of the Commission regarding the question whether the open-door prin-
ciple \vas to be applicable in the case of the C Mandates4.
On 5 August 1920 the Council of the Leaye of Nations considered
and adopted a very full report by M. Hymans concerning the mandate

' Quoted suprn. Vide Con/dr.mu de In Paix1919-1920P.artie VI, A, I==Fasc.. p.
312.Vide in this regard the explanatiosuggested by Judges Sir Percy Spender and
Sir Gerald Fitrmaurice in South West Ajricn,Preliminary Ob!edioiis,judgmen!.
I.C.J.Reports 1962. pp.559-560.
' E.g. A,rt.7 of the Mandate forGerrnvn South-West Africa.
' VlQ Wright. op. ci!.. pp47-48,50; 'l'ernperleyop. cil.Vol.II, pp. 237.239:
Hall.Op. ci!.p. 136; House. E. M. and Seymour. C. (eds.).Who1 Really HnPPcned
a! Paris(~gzi) pp. 227. 440. COUNTER-HEMORI AFLSOUTH AFRICA '9

systeml. After giving a summary of the main aspects of the system,
the report dealt with measures to be taken to apply it, measures already
taken by the Principal Allied and Associated Powers and the Mandates
Commission, and measures which the Council shoiild take. It pointed
out that the right to allocate mandates belonged to the Principal Powers.
Since, however, the Mandatory would govern in the name of the League
of Nations, the allocation should be confirmed by the League.
The next issue was the determination of the terms of the mandates.
M. Hymans pointed out that this question was only partially solved
by Article 22 (S) of the Covenant, since most of the mandates would
contain many provisions other than those relating to the degree of
authority. As regards Article 22 (8)he concluded:
"It seems to me that the real explanation of paragraph 8 of
Article 22 is as follows. When this Article was drafted in January
1919, its authors supposed that the conventions dealing with the
Mandates could certainly be included in the Treaty itself, or form
annexures to it. It was also thought at that time tliat only the
Allied and Associated Powers would be coiisidered as Original
Members of the League of Nations. In other words. tbat on the day
, of its foundation they would be its only Members. It was, therefore,
intended in using the words 'the &.lembersof the League' to refer to
al1 the signatories except Germany of the Treaty of Versaillesz."

The report proceeded:
"How is paragraph 8 to be applied to the present moment? It
is in practice alrnost impossible to apply literally the procedure
which we have just defiiied. How could the assent of al1 those
signatories of the Treaty of Versailles who are Nembers of the
League be obtained?
Has not the Council now the right to take cognizance of the
absence of any Convention such as is referred to by the Covenant
aiid itself to regulate the degree of authority or administration of
the Mandatorv Power?
'l'liii rifilit 'appc;irs tli~orcric~ll~ incoiit~sral~lc. but oiic wliicli
\i.uulJ ndrbc npportiiiilIO cscrciie.\i'emust bar in miiid. inJc.cd,
tiintiitlic'A'.\landatcs tii? <il.h72rof i~llttlorit!.must \.:Lr!.itl'c~rdillfi
ta tlir ~~ol)~il:iriiif tlii: rn;in<l:irztltcwitoriej and ;iccurcling tu
wlio is tlic\laiidator\. I'o\r,cr.In théscçirciinist~nçcs and as far ;rs
these Mandates are Concerned, the Council should in any case
wait until the Powers have arrived at a decision with regard to
the appointment of the Mandatory Power and the delimitation of
the territories.
hloreover, the examination of the degree of authority to be con-
ferred presup oses somewhat specialized knowledge; with regard to

it could not make a pronouncement until it should have taken the

opinion of experts, appointed by it. Would it not be more reason-
able to take advantaee of the work which has alreadv been accom-
plished by the experg ofthe Principal Powers. 1proi>ose, therefore,
to ask these Powers at the same time as they acquaint us with their

'Li ofN., 0.1. 1920(NO. 6). p334.
Ibid.p..338.20 SOUTH WEST AFRICA

decision as to the Mandatory Power, to inform us of their proposais
with regard to the terms of the Mandate to be exercisedl." (Italics
added.)

'i'hcrïsolutioii proposcd hy \I.1Iyriiaiisuasnl~~~uniii11iouil!~ndoprcdb!~
the Cou~icilon\-" 5 r\ueubt io,ol.,It rend &.;fulloa.ifinso far = 1srclevanti:
"(i) The Council decides to request the principal Powers to be so
good as to (a) name the Powers to whom they have decided
to aiiocate the Mandates provided for in Article zz; (b) to
inform it as to the frontiers of the territories to come under
these Mandates; (c) to communicate to it the terms and the
conditions of the Mandates that they propose should be adopted
by the Council from foiiowing the prescriptions of Article zz.
(ii) The Council will take cognizance of the Mandatory Powers
amointed. and will examine the draft Mandates communicated
tÔ'it,in order to ascertain that they conform to the prescriptions
of Article 22 of the Covenant.
(iii) The Council will notify to each Power appointed that it is in-
vested with the Mandate. and will. at the same time. commu-

nGate to it-the terms and conditions2.''
14. According to the Minutes of the Council of 14 December 1920,
MI. Balfour, the United Kingdom representative, on that date, handed
in draft mandates proposed by the British Govemment for a certain
number of territories, including South West Africa3. The Council re-
ferred these drafts to the Secretariat of the League: ". .. to considei
the Mandates and to consult other legal experts on any points which
they considered necessary" '.
15. On 17 December 1920 the Council considered a memorandum
prepared by the Secretariat and containing suggestions for amendment
in certain respects of the draft mandates handed in by MI. Balfour5.
The Council accepted the suggested amendments, confirmed, zntn

alia, the Mandate for South West Africa, and defined its terms.
Those portions of the text of the Balfour draft mandate for South
West Africa which were amended are here quoted in juxtaposition to
the text thereof as amended and adopted by the Council resolution of
17 December 1920.

The Balfour draft mandate for Text as amended and Fnally
German South West Africa adopted
submilted for a++rovaZ
1nsertion.of a fourth paragraph
to the preamble.

"Whereas, by the aforemen-
tioned Article 22, paragraph 8, it

' L. ofN., O.J., 1920 (NO. 6),pp. 338-339.
Ibid., pp. 340.341. Vida also \\'rigop. cif.pp. 109-112; Hall,op. cit., p. 146.
L. of N., O.J., 192(No. I),p. 11.A photostat copy of the mandate instrument
handed in by Mr. Balfour was transmitted by the Agent of the Government of the
Republic of South Africa to the Registrar of the Court under cover afletter dated
24'OL..of9N., O.].. 1921 (NO. I),p. 12. . . . '. ,. ,
' Ibid.. Hall,op. cil., p. 153. COUNTER-MEMOR IFLSOUTH AFRICA 21

is provided that the degree of
authority, control or administra-
tion to be exercised by the Man-
datory not having been previous-
ly agreed upon by the Membersof
theLeague, shall be explicitly de-
finedby the Councilof the League
of Nations:

"The Council of the League of [The Council of the League of
Nations. .. Nations .. .]
~ereby approves of the terms Confirming the said Mandate,
of the Mandate as fol1ows:- defines its terms as follows:

. .' ARTICLE 7 ARTICLF 7.

The consent of the Council of The consent of the Council of
the League of Nations is required the League of Nations is required
for any modification of the terms . for any modification of the terms
of the present mandate, provided of the present Mandate.
that in the case of any modifica-
tion proposed by the Mandatory,
such consent may be given by a
majority.

anse between the Members ofshould The Mandatory agrees that, if
the League of Nations relating to between the Mandatory anduld anan-
the interpretation or the applica- other Member of the League of
tion of these provisions which Nations relating to the interpre-
cannot be settled by negotiation, , tation or the application of the
this dispute shall be submitted provisions of the Mandate, such
to the Permanent Court of Inter- dispute, if itcannot be settled by
national Justice provided for by negotiation, shall be submitted
Article 14 of the Covenant of the to the Permanent Court of Inter-
League of Nations." national Justice provided for by
Article 14 of the Covenant of the
League of Nations."

16. The reasons for the insertion of the fourth paragraph of the
preamble and for the amendment of the text of Article 7 are explained
in a report to the Councilof the League by Viscount Ishii on 20 Febmary
1922 '.
According to the Ishii report, the fourth paragraph of the preamble
was inserted-
"... to define clearly the relations which, under the terms of the
Covenant, should exist between the League of Nations and the
Councilon the onehand, andthemandatory Powerontheother ...'"

The proviso to the firstparagraph of Article 7 was deleted-
"... because it [the Council] did not think it advis-le to consider

Ibid.Np. 850.,rgzz(No. 8, part II), pp8.49ff.22 SOUTH WEST AFRICA

the possibility of altering the terms of a mandate by a decision
taken on a majority vote '".
And the amendment of the compromissory clause in Article 7-

".. . waç inspired by the consideration that Members of the League
other than the Mandatory could not be forced against their wiil
to submit their differences to the Permanent Court of International
Justice '".

The League of Nations Period

17. The functions of the League of Nations in respect of mandates
were exercised by the Council, the Assembly and the Permanent Man-
dates Commission.

rende; annual reports 2, to its "satisfaction" 3.
The Council alone had the power to take decisions and address re-
commendations to the Mandatories4.
Article 4 of the Covenant entitled any Member of the League not
represented on the Council "to send a Repreçentative to sit as a member
at any meeting of the Council during the consideration of matters
specially affecting the interests of that Member". This provision enabled
a Mandatory to be represented when the Council considered matters
relating to its own mandate and to mandates in general.
In terms of Article'5 of the Covenant, decisions of the Council re-
quired "the agreement of al1 the hlembers of the League represented
at the meeting". (Italics added.) Whether a Mandatory could exercise
its vote in the Council in such a way as to frustrate the unanimou
view of al1 the other Members on a matter affecting its own mandate,

was never raised. In fact no occasion on which there was such a division
of votes ever arose; al1 Council decisions concerning mandates were
taken unanimously5. In this connection Jennings States thatthe "invar-
iably careful and even elaborate avoidance of an adverse vote from the
Mandatory" in the Council is "difficult to understand unless one may
assume at any rate the possibility of a veto in the Mandatory
State" 6.
19.The Assembly derived its powers in respect of mandates from
Article 3 of the Covenant in terms of which it could "deal at its meet-
ings with any matter within the sphere of action of the League . ..".
At the First Assembly a "working basis" was, however, decided on
according to which-

' L. O/ N.. O.J.. 1922 (Part II) p. 854.
Art. 22 (7,.
E.g., Art.6 of tne Mandate for Soiith West Africa.
' Vide The Ma>idaler System-Origin-Principles-Applic(a1t 94o). p. 35:
Hall. op. cil., p. 174; P.M.C., Min1, p.j.
lheTerritoryofSouth Wsst Africa. Aduisory Opiniin, I.C.J. Repor1955,ipp.i?o-~oi.i~g
(Judge Lauterpacht's separate opinion )
' Jennings, R. Y.. "The International Court's Advisory Opinion on the Voting
Procedure on Questions concerning South-West Africa", in Grotius Soc., Vol. q?
(1956). P. 92. COUNTEK-MEMORIAL OF SOUTH AFRICA
23

"Neither body [i.e.. the Assembly or the Council has ~unsdiction
to render a decision in a matter which by the Treaties or the Cov-
enant lias been expressly committed to the other organ of the
League. Either body may discuss and examine any matter which
is within the competence of the League'."
Thus. in respect of mandates. the Assembly's role was confined to:
"... the exercise ot a certain moral and very geueral influence ii,
this domain. Its function may be said to be to maintain touch
between public opinion and the Counci12".

20. The Permanent Mandates Commission was instituted by the
Council on zg Xovember 1920, pnrsuant to the provisions of Article
22, paragraph g, of the Covenant, in terms of which its functions were
"to receive and examine the annual reports of the Ilandatories and to
advise the Council on al1 matters relating to the observance of the
mandates".
Article zz of the Covenant did not make provision for petitions
frorn inhabitants of mandated territories, nor did the mandate instru-
ments do so. Petitions were, however, sent to the Permanent Mandates
Commission, and as a result the Council, at its ~3rd session in 1923,
framed rules relating to the procedure to be adopted with regard,there-
to. In terms of these rules, petitions from "communities or sections of
the populations of mandated areas" were to be submitted only through
the illandatory concerned, which would be entitled to attach "such
comments as it might think desirable". Petitions "regarding the inhabi- ,
tants of mandated territories received ... from any source other than
that of the inhabitants themselves", were to. be addressed to the Chair-
man of the Commission who had to decide whether they should be
regarded as "claiming attention". If so, the Mandatory concemed was
then to be asked for its comments thereon '.
The question whether the Permanent Mandates Commission was
entitled to gant oral hearings to petitioners was raised on several
occasions in the organs of the League, especially during the years 19?6-
1927, when a proposa1 for such hearings "in certain cases" met with
considerable opposition. When the views of the mandatories ,were
sought in regard thereto, they unanimously expressed their oppositiau,
witb the result that the Council on 27 March 1927 decided that-
"there is no occasion to modify the procedure which has hitherto been
followed by the Commission in regard to this question"'.
In constituting the Permanent Mandates Commission, the Council
decided, inter alia, that it was to consist of nine memhers5. the
majority to be national5 of non-Mandatory States. It further provided
that-

"AU the Mernbers of the Comniission shall be appointed by
the Council and selected for their personal merits and ~ompetence.
They shall not hold any ofice which Puts them in a positzon of dzrect

' L. of N., Assembly. REC1.P.320.
' L.O!iN.,0.J..1923c(NO.g3),P.300.pler-Applicai p. 35.
' Ibid..1927(Na. 4).p. 345.
Later increasedtoten and thentoeleve".24 SOUTH WEST AFRICA

defiendence on their Governmentw shilemembersof theCommissionl."
(Italics added.)
The Permanent Mandates Commission was described as-
"essentially an advisory bod5.-a body whose duty it is to examine
and reportdesigned to assist the Council in carrying out its task.
Its work is preliminary in character. Constitntionally, it has no
.' power to take decisions binding onthe mandatory Powersor to
address direct recommendations to them. Its conclusions are not
ha1 until they have.been approved by the CouncilZ."

The Commission itself realized and stated that, baving adopted the
rule of "absolute independence and impartiality", its Members shonld
exercise their authority "less as jndges from whom critical pronounce-
ments are expected, than as coilaborators who are resolved to devote
their experience and their energies to a joint endeavour" '.
Although its powers were purely advisory, the Commission developed
into an effective institution. In this connection II. Rappard-at first
Secretary and later for a long time a hlember of the Commission-
stated:
"As the Commission, thanks to the personal competence and
generally recognized independence of its members, came to enjoy
a real respect and, indeed, quite some prestige, an international
or rather a supernational moral authority sprang up. . .. In its
capacity as a purely advisory body. .. the Permanent Mandates
Commission had no powers of coercion whatever. As a universally
esteemed group of impartial and independent experts, however,
its powers of persuasion were indisputably very effective. No
Mandatory government .. . could afford to disregard its advice
forfear of no other sanctions but those of public and parliamentary
opinion.
The net result was a willing CO-operationbetween the League
and the Mandatory governments, and the enhancement of the stan-
dards of administration in the mandated territories and even, by
a natural repercussion, in colonial administration everywhere4."

21. There was at al1times cordial CO-operationbetween Respondent
and the Permanent Mandates Commission. On occasion differences of
opinion arose-as was the case also with regard to other mandated
territories-but this was inevitable in view mainly of uncertainties and
obscurities in a new system, operating under the somewhat vague terms
of the compromise embodied in Article 22 of the Covenant. And with
botb Respondent and thecommission approaching their task in the
spirit of that. compromise, the problems which arose were always satis-
factorily solved.
Appvcants' Memorials, on the other hand, contain statements and
allegations.suggesting strife between Respondent and the Commission,
and even a "hostile" attitude towards the Commission on Respondent's
--
' Li of M..O.].. 1920(NO.S), p. 87.
The JMandates System-Orifin-Principles-Applicpn.l i5.n.ide also van
Asbeck, F. M.. "International Law and Colonial Administration"in GrotiusSOC..
vol. 39 (19.53P. 14.
' Rappard, OVario Polilica. p. 184.. 1124-1125. COUNTER-MEMORIAL OF SOUTH AFRICA 25

part. These allegations and suggestions are unfounded, as will appear
from closer scrutiny of the factsto which they relate.

22. At 1,page 37, Applicants state as follows:
"Annual reports called for in Article 6 of the hlandate for South
West Africa were for a'timse ubmitted by the Union to the Council
of the League of Nations, beginning with a report for 19x9.''
(Italicsadded.)
Respondent finds it difficult to appreciate why such language should
be used, when the true facts are that Respondent regularly submitted
annual reports until 1940. after the outbreak of the Second World War,
which brought about a cessation of al1 reporting by Mandatories and
of meetings of the Commission.

23. The Applicants state at 1,page 37, that "the Union waç not at
first overtly hostile towards the Permanent Mandates Commission".
Respondent denies the im lication that i' was at some time hostile,
overtly or otherwise, towar $s the Commission. On the contrary. there
is abundant evidence to show that despite occasional divergencies of
view reeardin~ suecific matters. Kespondent's attitude throu~h-ut was
one of f;iendly cÔ-operation.
So, for instance, Respondent waç tlie first of al1the Mandatories to
be represented at the discussions of the Permanent Mandates Commission
mandated territory,sonnamely the. Administrator of South West Africae
-which action the Council particularly appreciated and commended
to other Mandatoriesl.

SouthWest Africa in 1935 and made an extensive tour of the Territory.
As far as is kiiown, this was the only occasion on which a hfember of
the Commission was invited by a hlandatory to visit a mandated terri-
tory. Respondent had extended this invitation also to the Secretary-
General of the League and the Director of the hlandates Section of
the League. but neither could avail IiimselfthereofZ.
On maiy occasions appreciation was expressed, on hoth sides, of
the relationship and CO-operationbetween Respondent and the Commis-
sion. As examples may be mentioned the following:

(a) In a lette; by ~eneral Smuts, dated 16 hfay 1923, to the Chairman
of the Commission, there occnrred, interalia:
"1 also wish to express my appreciation of the valuable work
which you are doing as Chairman of the Permanent Mandates
Commission; and 1 wish especially to thank you and the other
members of the Commission for the way in which you have assisted
the Council of the League in order to meet my wishes about the
naturalization of the white German inhabitants of South West
Africa. You have shown great fairness,and wisdom in realizing the
special and exceptional character of the problem in that territory,
and 1 thank you for finally agreeing to the solution which 1 have
put fornard'."

'L. ofN.. O.J. 924 (No. IO),p. 1287
P.M.C., Min.. XXVII, p. 153.
Ibid.. IIIp. 215.26 SOUTH \\'EST AFRICA

(b) On 6 June 1~~6the Chairman of the Commission thanked the
South African representative-

"for his CO-operationand expressed the Commission'sappreciation
of the cordiality, sincerity and loyalty shown by the accredited
representative of the Mandatory power. It was a matter for satis-
faction that there was such close CO-operationbetween the Com-
mission and the Union'".
(c) In his address of 9 April 1946, ta the Assembly of the League
in its final session, the South African representative stated:
"it is generally recognised that the ~eague discharged its super-
visorv functions in resûect of mandates with hiah seriousness. skill
and ;uccess. For twe& years, as one of the mandatory Powers,
South Africa worked in close CO-operation with the Permanent
Mandates Commission, and ne are proud of the fact that our rela-
tions with that body have always been bath happy and cordial2."
Again the reason for the language in the hlemorials, as above cited,
is difficulto appreciate.

24. The Applicants state at 1, page 37, that, "Officials of the Union
Government from the outset: viewed the mandate as tantamount to
annexation".
They then quote, at the same page. two extracts from a newspaper
report of a speech made by General Smuts at Windhoek in September
1920, the first being that he "emphasized that the League of Nations
had nothing to do with the giving of the Mandates", and the second:
"In effect, the relations between the South West Protectorate and the
Union amount to annexation in aUbut name."
This the Ap licants then describe as "sa striking a reversal of concept
towards the i7andate System".
In regard to the first of the above extracts, General Smuts \vas speak-
ing of the allocation of mandated territories by the Principal Allied
and Associated Powers3. His address was delivered some months prior
to the execution of the mandate instrument < 111regard ta the second
extract, Respondent has already pointed outS that General Smuts'
description accorded with that of other commentators, and that when
regard is had ta the nature of the compromise arrived at in respect
of C Mandates. no "reversal of concept", "striking" or otherwise, was
involved. That General Smuts, in the passage in question, \vas con-
cerned only with the practical efiect of the C Mandate. and was ,in no
way seeking to evade the significance of the safeguards envisaged in the
interests of the native population, or of League supervision in res ect
thereof, appears from the context of the whole address as reporte ,K as
well as from a letter \vritten by him on the subject to hl.Rappard on
4 July 1922. In the report of the speech there occurs, inter alin, the fol-
lowing :
".. .the mandate was a new idea in International Law, and there-
fore it was only right that a full explanation should be given at

' P.>W.C.. Min., XXIX,p. 137.
L. oN.. 0.J.Sptc. Sup.So. 194,p.32.
Vide paraIO.supra.
' 17Dec. ,920-uidc para.15.supro.
Para. gsupra read ivith para. 8.supra. COUNTER-MEXORIAL OF SOUTH AFRICA 27

this stage. He emphasized that the League of Nations had nothing
to do with the giving of mandates, which were already settled as a
fact by the Peace Treaty, quite apart from the League of Nations.
Under the Peace Treaty Germany had renounced her coloniesnot
to the Leaeue of Nations. but to the Great Powers. Article IIO of the

was accepted'by the Union Parliament. The League of Nations was
only concerned in one way, namely to define the scope of the
mandate in any particular area . . . The Prime Minister then quoted
the relevant portion of the Peace Treaty providing for the govern-
ment under the laws of the Mandatory. Strbjectto safeguards, the
Union Government had com lete authority over South West Africa,
not as a separate territory, fut asan integral portion of the Union,
ngainst slavery, trafic in arms, liquor and mililary training-thes
control of these saleguards lying with the League of Nations. The
Union Government could extend to South West Africa its legal,
judicial, administrative and financial systems, its Civil Service, its
police, and its Railway Administration, and it could declare South
\t'est Africa a Province of the Union and could give Parliamentary
representation, the only limit being in regard to natives.
In effect, the relations between the South West Protectorate and
the Union amount to annexation in al1but name. Without annexa-
tion the Union could under the Peace Treatv do whatever it could
have done in annexedterritory, save the rese;valionof thenatives '."
(Italics added.)
In his letter to hl.Rappard, General Smuts pointed out that he had
addressed the German section of the population and had esplained to
them "the futility of looking to the Fatherland and the necessity of
throwing their lot in with the people of the Union". He added:
"1 have exglaincd, to them that the Union has full power of.
legislation an administration over South West Africa as an integral
portion of the Union, and that the effect is very much the same as
if they were incorporated into the Union subject of course, to the
full safeguards in the interests of the native population. In al1this,
1 have confined myself to the strict letter of Article 22. . . .
Do not for a moment lhink thnt in my ideas or proposaisI depart
/rom thesvstem of mandates.which 1 consider one ofthe most bene-
ficent adGances h international law. We musl only recognizethe facl
that C mandates are in effectnot far removedfrom annexation. The
case is, of course, quite different'with the other two far more im-
portant types of mandates 2.''(Italics added.)
In the light of these facts, apparent in full from the Minutes of the
Permanent Mandates Commission as referred to by Applicants.them-
selves at 1,page 37, there can again be no justification for the Appli-
cants' language in question.
25. Applicants state nt 1, page 38, that the Permanent Mandates

' P.M.C..Min.,II,p.9*.
, Ibid.. p91.28 '-SOUTH WEST AFRICA

Commission "felt obliged on more than one occasion to cal1 the Union
ta task with respect to its attitude toward the legal status of the
Territory". Applicants then proceed ta allege in this regard that-
". ..when the Union concluded a seriesof Agreements withPortugal
regarding the boundary between Angola and South West Africa,
the Commission drew attention to the fact that in the Preamble
to one such Agreement, the Union asserted 'full sovereignty over
the territory of South West Africa, lately under the sovereignty
of Germany"'. (Italics added.)
As a fact Respondent in the preamble did not assert "full" sover-
eignty: the word "full" \\,as not used and the word "sovereignty"
was qualified by the words "subject tothe terms of the said Mandate".
The relevant part of the preamble read:
"And Whereas under a mandate issued by the Council of the
Leaye of Xations in pursuance of Article 22 of the Treaty of
Versailles. the Govemment of the Union of South Africa. subiect 10
thctoms of thc ..,idmunda~cposs~r& soi~I~I~>I/Yrivi-rtI1e.~èr;~tor?.
of Soutli \\'est Afric;i ,Iit~rciii;ifterrcb:rrcd tu asrl~tTerritory
13té1\3iiiirltlicso\.t,rciriitv of Cvrni:in'."11t;llics;,ilil~*~l..
-, , \
A lengthy controversy did arise, with reference ta this preamble, as ta
the meaning to be aççigned ta the word "sovereignty". There followed
discussions and correspondence, which as a result of misunderstand-
ings were protracted. Part only of these is quoted by the Applicants.
A full account, as recorded in the official records of the League-but
which would needlessly lengthen this statement-shows that the diffi-
culty related mainly to the ineaning ta be assigned tothe word "sover-
eignty" in the context of mandates. This was a question dealt with at
great length by many authorities, who arrived at a variety of conclusions.
Wright mentions at least ten tlieoriesz.
As far as the League was concerned, M. Hymans had in 1920, in a
report adopted by the Council on j August 1920 stated as follows:
"The degree of authority, control or administration is, sa far as
'U' or 'C'Mandates are concerned, a question of only secondary
importance.
In the former case, as in the latter, the Mandatory Power will
enjoy, in my jud~menl, a full exercise of souereignty,in sa far as
such exercise is consistent with the carrying out of the obligations
imposed by paragraphs j and 63." (Italics added.)
There was. however, no attemnt in the Leame to define where
sovereignty, in the traditional senie of absolute Gwer, was lodged in
regard ta Mandates. In this regard, the above report by M. Hymans
had stated:
"1 shall not enter into a controversy-though this would certainly
be very interesting-as to where the sovereiyty actually resides.
We are face to face with a new institution. Legal erudition will
decide as to what extent it can apply to this institution the older
juridical notions'."

' LiO/ N..0.1. 126 (No. II),p. 1533,
OP. il..pp.319-339.
' IL.01N.. Council. Min.VIII. o.181. COUNTER-MEMORIALOF SOUTH AFRICA
29

Simiiar sentiments on this aspect of the matter were expressed by M.
Beelaerts van Blokland in a report adopted by the Council on 8 Sep-
tember 1927'. and also in a further report by M. Procopé adopted
on 6 September ~gzg~.The different senses in which the word "sover-
eignty" could be used, contributed to the misunderstandings involved
in the lengthy discussions and exchange of communications between the
Commission and Respondent.
What is, however, of importance, is that al1 such misunderstanding
was resolved through the acceptance by Respondent, in a letter of 16
April 1930, of the above reports of M. Beelaerts van Blokland and hl.
Procopé, which were to the effect, interalia, that "sovereignty in the
traditional sense of the word does not reside in the Mandatory Power"'.
III the light of this outcome of the exchange of communications be-
tween the Commission and Respondent conceming the question of
sovereignty, Respondent finds it difficult to understand why Applicants'
hlemorials. at 1,page 39, leave this matter on the note of "no clear reply
to the question", "regrettable misunderstanding" and "its [Re-
spondent's] assertion of the possession of sovereignty over the man-
dated territory".
26. With regard to the reference at 1, page 39, to an "intention to
incorporate" the Territory, Respondent's view has consistently been that
closer association between South West Africa and South Africa was in
accordance with the compromise arrangement regarding C Nandates
as contained iii Article 22 and $\.en effect to in the mandate instrument
for South West Africa'. -
In September ~gzo,General Smuts saw the constitutional development
of South West Africa as follows:

"The policy of the Government would be to carryout the mandate.
South West Africa would alwavs be a se~arate unit as a lar-e
coiintr). but it\v;isiiiiposîihlz tuZrunir iisa'pro!,inrc?atrlitI>ryjcnt
tiiiie, thoiigl1;1tt?iiodoul~t. itwould I)rcomcone. witli ;IProviiiçinl
Coiiiicil and iiiemticr, in the Hoiiie of hsîembl\,, but tirît other
stages would have to be passed through. The firit would probably
be an Advisory Council to be appointed to advise the Administrator.
Not long after that, the Council would become an elected council,
and in due course there would be a full Parliamentary system?'"
Although Respondent during the existence of the League never made
anv formal proposnls, either for the incorporation of South \t'est Africa
as-a fifth pÎovince or othenvise, incorpoÏation was from time to time
strongly urged by sections of the inhabitants of the Territory. This
pressure from within the Territory arose mainly as a counter to events
in the 1930s-the claims of Germany under Hitler to the restoration of
the former German colonies and the insistence on the part of the Ger-
man section of the population in South West Africa that this ,would
sooner or later be achieved. hf. Rappard in 1934 caUed this agitation
for incorporation "a very natural reactionU6.

' L. ofN., O.J..1927(No. IO).p. irzo.
Ibid.,1929(No. II),p. 1467.
' Ibid.,1930(No. 7). pp.838.839.
' Vide para. 7, supra.
Ibid.. XXVI, p. 50.~~.30 SOUTH WEST AFRICA

The statement of hl. Rappard referred to at 1, page 39. was made in
1025. It did not relate toanv concrete orooosal or intention and. in fact.
congtituted speculation onAa purely hyfithetical basis. ~onse~uentl~
Sir Frederick Lurard considered that in the absence of a concrete
proposal, this discüssion was beyond the Commission'scompetence '.
In the circumstances the phrase "the proposai'' at 1,page 39, is iiot
understood, nor does Respondent understand the allegation that such a
proposal (sic) "frequently drew the Commission'sattention".

27. The purport of the quotation given by the Applicants at I,.pages
39 to 40, wiii be better understood when that quotation is read in the
context of the full paragraph in which it appeared. That paragraph read:
"The Commissionwas informed hy themandatory Power that the
latter has appointed a special Committee to study certain constitu-
tional problems raised by a motion of the Legislative Assembly of
the territory aiming at its incorporation as a 'fifth province of the
Union'. It noted, in particular, that this committee is to take ac-
count, inter alia, 'of the character of the territory as a mandated
territory and the rules of international law governing the mandate'.
The Commissionnoted wzth satisfaction .he statement bv the ac-
cri<litcd icpreientati\.c tli:it tlic ninnJ:iti~ry IJn\r.cr\\,inutt:ikc :,ny
action in this rcsr)ectiiiitilil lias Iirst ~uiiiiiiiiiiic:iil' iiit~iilionstu
the League of Nations.
As the guardian ofthe integrity of the institutionofmandates, the
Commission therefore expects to be informed of the mandatory
Power's views on the auestion. which it will not fail to subiect to
th31c:~refulesaniinstiur~ tIi;iits interii:irional irnport:~nc~<l,.i;iands.
'flic (.'.,rnniijii<n.iilit.;<;ithis o~c:iiii>rit.o<Ir:i\v:ttrciitii,ii tu tlic

i~iaiirI.~ti>rI\Jc>ivei.if'iin~l:in:ciit:ilol>lig.<tiuiitii gi\.? ,:fiecc riot oiily
to the provisioni uf tlii ni;,nd~tc. biit nlio to tliosc of Article 22
of ttie Co\.en:int2." (Italics addcd.1
JI. Rappard indicated the attitude of 3Iembers of the Commission
when he said :
".. . he deeply appreciated the statements made by the accredited
representatives. The attitude of the Union Government in this
matter had now been fully and completely defined. Last year, there
had heen some misunderstan~ ~~~on the subiect. because the
previuuj :~ccreditedreprcsentativc tind app;ireiitly not iclr aiithori-
zed to inah <Ichiiitestatenicnts 'i'liereh:id bwn no kick of cooda.ill
on his nart. and this observation im~liedno criticism of his attitude.
~~~.~~~ ~ ~ ~
It was however, a matter ofcongAtulation that so full a statement
had now been made. This statement went a lorigway to create that
mutual confidence between the Mandates Commission and the
mandatory Power which was so necessary for the success of their
mutual efforts "'"
Thus as regards the Mandatoy's attitude, the Commission expressed,
not "misgivings"', but "satisfaction".
Applicants state at 1, page 40, "in the meantime the Union had

P.M.C.,Min,VI.p.Go.
Ibid.,XXVII, p. 229,
Vbid., p. 161.
' As is alleged by Applicants at 1.p. 39. COUNTER-MEMORIAL OF SOUTH AFRICA 31

established 'a South West Africa Commission' .. . to deal further with
the matter of incorporation". In fact this Commission was the body

re~e~r~ ~to in the ob~e~vations of the Permanent Mandates~Co~m~-sion. ~ ~ ~
quot,:il .,l)ii\.c:ija "Comniittcc to itucl! ç~.rt~iiicoii~titiitioiialprobleini '.
Its sppointnient li,iclhteii notifirtl to tlic Commission b!, Kespor.<!ent.
RII~~ ~ ~e observation~~~- the Comini;sion a~os~ from thc discussion bf ~lin~
very notification.

The Commission's suhsequent obsenrations referred to bv the Amli- ..
cants at 1, page 40, read iniull:
"The Commission noted the statement in the annual report (page
4) that the mandatory Power 'is of opinion that to administer the

mandated temtory as a fifth province of the Union subject to tlie
terms of the mandate would not he in conflict with the terms of
the mandate itself'. It also noted that the mandatory 'feels tliat
sufficient grounds have not been adduced for taking such a step'.
The Commission does not express any opinion as to a method of
administration the scope of which it has had no opportunity of

iudeine and the ado~tion of which. accordine to the statement of
iheUrnandatory ~owêr,is not contemplated~ it confines itself to
making al1legal reservations on the qtiestion'."
In the absence-of any specific proposal, the Permanent Mandates

Commission could hardlv he ex~ected to take anv other course than
to reserve its position, a; it did.'~he significance \;hich the Applicants
attach to this reservation is therefore not understood.
Respondent has never made a secret of its conviction tliat closer
association between South Africa and South West Africa would hest

serve the interests of the inhabitants of South West Africa. It held
that view before Versailles and reassessment in the light of subsequent
events has not led to any other conclusion. Respondent sees nothing
wrong, sinister or strange in seeking that closer association.
There is, however, no justification for Applicants' statement at 1, page

40, that-
"the question of the legal status of the Territory was perhaps the
most senous area of disagreement persisting between the Union and
the Permanent Mandates Commission".

As appears from the facts aforestated, tfiere was no "area of disagree-
ment persisting" as regards "the legal status of the Territory"; and
Respondent is not aware of any "area of disagreement", "serious" or
othenvise, "persisting" in regard to âny other matter.

28. Applicants allege at 1, page 40, that the Permanent Mandates
Commission "repeatedly deemed it necessary to criticize other phases of
the Union's administration of the Territoryu-and they then list five
aspects of administration, giving references. For reasons stated in

paragraph I above, Respondent does not deal here witli the substance
of the allegations. other than to state that neither the references cited
by Applicants nor the other records of the League support the allegation
that the Commission had "repeatedly criticized" aspects of its ad-
ministration of South West Africa. It was the duty of the Commission
to express its views on the administration. and complete agreement at

al1 times between the alandatory and individual blembers or even the

' P.IM.C.. Min., XXSI. p. rgz. 32 SOUTH \VEST AFRICA

Commission as a whole could not oossiblv be exoected. Yet. individual
differences which did arise from time to fime, wêreremarkably few and
they were invariably settled to the satisfaction of the Commission, the
CoÜnciland the Mandatory

The Period ofTransition 1945-1946

29. The establishment of the United Xations Organization resulted
largely from inter-Allied CO-operationduring the Second World War.
The name "United Nations" had been adopted by the Allies in the
later stages of the war and used in declarations, such as that of I January
1942, at Washington, pledging war-time CO-operation.The prospect of
establishing a new international organization for the preservation of
international peace was mentioned in a declaration signed on 30 October
1943, at Moscow, by the representatives of four of the major Aliied
Powers, viz., the Union of Soviet Socialist Republics, the United States
of America. the Uni~ed ~inedom,.nd China. The first blne~rint of the
orgiiii/:ition\vas 1)ri:pnrc~lduring cliscusiionj iiithe ~idrio~l,\iigiisr to
Ocrober IL)++. nt 1)niiitxirtoii Oakj, \\':ishingri~iiil\vliicli tlte s:~d i~iir
Pouers i~:irticiu:it~~dI~ollo\~iiieoii tlics,:di..c:ii.~jiriiit\vasri~ubliilied
the proposal, ihleralia, that thYekeybody in the ~ontem~lated'organiza-
tion was to be a Security Council oii which the "Big Five" Powers
~bein,.the above four and Francel wer. to be ~ermanentlv re~resented.
During the \:ilta Conference ol I:<:briinr!. bttwk~i 'llrcsident
Uo~sc\~~ltof tlic Iliiitcd Sr;,tcsiif Amt:ri<:.i.I'riiiic .\lini>ter Cliiirsliill
of tlic L'iiirc.ill<inil<loni:il'rtriiicrSr:iliiiof tlie Soviet Ciii<in.canir:an
aiinouncement thzt the question of voting procedure in such a Security
Council had been settled and that "a conference of United Nations"
should be caiied to meet at San Francisco to prepare a charter,for "a
general international organization to maintain peace and security . . .
along the iines proposed in the informal conversations of Dumbarton
Oaks".
A conference of dele ates of 50 nations was held at San Francisco
hetween 25 April and 2i June.r945, at which the Charter of the United
Nations was drafted, unanimously agreed upon and signed by ail ,the
representatives. It came into forceon 24 October 1945,when, as reqnired
by Article rro thereof, the five Powers that were to be Permanent
hlembers of the Security Council and a majority of the other signatory
States had filed their ratifications'.
30. During the aforesaid events the League of Nations was still, in
existence: and it continued to exist side bv side with the new or~an-zation
until April 1946.
There was no suggestion that the United Nations was to be the
League under a new name, or an automatic successor in law to League
assets, obligations. functions or activities. Indeed, two of the major
Powers which played a leading role in the establishment of the United
Nations, and were to be Permanent Members of the Security Council,
were known to be strongly averse to any notion of automatic succes-

' Eucrymon'r United Nations (6thed.), pp. 4-5.Vide alsa Goadrich;-L. M. and
Hambro. E., Charter of thc UnileNotions (2nded.), pp. 3-18 ÇOUNTER-MEMORI AFLSOUTH AFRICA 33

sion. They were the Soviet Union, which had been expelled from the
League in December 1939. and the United States of America, which
had never been a Member of the League.
In terms of Article 3 of the Charter, the original Members of the
United Nations were the States which, having participated in the San
Francisco Conference or having signed the Declaration by the United
Nations of I January 1g42, also signed the Charter and ratified it in
accordance with Article 110. There were 51 such original Members of the
United Nations, of which 17 were not at that time (1945-1946)Members
of the League. They were: Byelorussian Soviet Socialist Republic, Chile,
Costa Rica, El Salvador, Guatemala, Haiti, Honduras, Lebanon, Nica-
ragua, Paraguay, Pem, Philippines, Saudi Arabia, Ukrainian Soviet
Socialist Republic, Union of Soviet Socialist Repubtics, United Statesof
America, Venezuela.
Of those 17, six had never been Members ofthe League. They were:
Byelorussian Soviet Socialist Republic, Lebanon, Philippines, Saudi
Arabia, Ukrainian Soviet Socialist Republic and United States of
America.
All the others (except the Soviet Union) had many years beforewith-
drawn {romthe League on notice*.
Further, of the 42 Members of the League of Nations at that time,
II were not original Members of the United Nations. They were:
Afghanistan, Bulgaria, Estonia, Finland, Ireland, Latvia, Lithuania,
Portugal. Siam (Thailand), Sweden and Switzerland.
Four of these, viz., Switzerland, Lithuania,Latvia and Estonia, never
became Members of the United Nations. The others were admitted to
membership at various times, in some cases yean after the establishment
of the United Nationsz.

As a result of the admission of new Members, United Xations mem-
bership grew to 99 as at the end of 1960and to IIO as at theendof 1962.
Although 14 of these new Members had at some stage or another been
Members of the League, the others had never been.
31.At tlie Siin I'raiiciico Confcrcnir, diirinfi ttie diicussioii; concerning
the orovisions of tlitCharter reldti\.e IO a ~ror>osc:trustecîhip svstcm j.
the south African representative made thé following statemênc
'1 u.isli to point out tliiittlicrearc territones already iindcr
!Saiidat~.where ttiz hlandnrory principle cannot be actiizved.
11s ;inilliistration1a.oul<lrcfrr ro [lie former (;crinan territor!r of
South West Africa held by South Africa under a 'C' Mandate.
Thefacts with retard to thisterritory are set out inamemorandum
filed with the Secrëtariat. which 1 no& read:
When the disposal of enemy territory under the Treaty of Versail-
leswasunder consideration. doubt was expressed as to the suitability
of the Mandatorv form of administration for the territory which
formerly constitAed the German Protectorate of South \"lesi Africa.

Nevertheless, on 17 December 1020, by agreement between the
Principal Allied and' Associated ~hwers-ana in accordance with
Article 22 Part 1(Covenant of the League of Nations) of the Treaty,
' For datesvideWalters, F.P..A History othe LcagueofNations (1952)V.al.1.
PP. 64-65.
Vide datesin Euerymnn'r UniladNations (6thed). p.6.
' In Cornmittee1114on riMay 1945.34 SOUTH WEST AFRICA

a \landare (comrnonlj rcfcrred ro asa C Mandate) \vas conferred
upon the Governmrnt uf the Union of South Afric;i to administer
the said territory.
Under the hlandate the Union of South Africa was granted full
power of administration and legislation over the territory as an
intemal ~ortion of the Union of South Africa. with authoritv to
appÏy thélaws of the Union to it.
For 25 years, the Union of South Africa has govemed and ad-
ministered the territory asan integral part of its own temtory and
has promoted to the utmost the material and moral well-being and
the social progress of the inhabitants.
It has applied many of its laws to the territory and has faithfully
performed its obligations under the Mandate.
The territory is in a unique position when compared with other
territories under the same form of Mandate.
It is geographically and strategically a part of the Union of South
Africa, and in World War Xo. I a rebeüion in the Union was fo-
mented from it, and an attack launched against the Union.
It is in large measure economically dependent upon the Union,
whose railways serve it and from which it draws the great bulk of
its supplies.
Its dependent native peoples spnng from the same ethnological
stem as the great mass of the native peoples of the Union.
Two-thirds ofthe European population are of Union origin andare
Union Nationals. and the remainine one-third areEnemv Nationals.
Theterritory has its own ~e~islagve Assemblygranted to it by the
Union Parliament. and this Assemblv has submitted a request for
incorporation of the territory as partuof the Union.
The Union has introduced a progressivepolicy of Native Adminis-
tration, including a system of local govemment through Native

Councilsgiving the Natives a voice in the management of their own
affairs; and uiider Union Administration Native Resewes have
reached a high state of economic development.
In view of contiguity and similarity in composition of the native
peoples in South West Africa the native policy followed in South
West Africa must always be aligned with that of the Union, three-
fifths ofthe oooulation of which is native.
There is n'oprospect of the territory ever existing as a,separate
state, and the ultimate obiective of the Alandatory princ.p.e is
therefore impossible of achiévement.
The Delegation of the Union of South Africa therefore claims that
the Mandate should be terminated and that the territory should be
incorporated as part of the Union of South Africa.
As territorial questions are however reserved for handling at the
later Peace Conference where the Union of South Africa intends to
raise this matter, it is here only mentioned for the information of
the Conferencein connection with the Mandates question'."

' The official records of the San FranciConference contain only a hrief sum-
mary of this statemeiit (U.N.C.I.O.Docs., \'oIO, p.434). The text quotcd here
istaken from the original typewritten document from which the South African
representative, Dr. D. L. Smit. read the statement in the Committee on Trusteeship
on 11May 1945,which accords with an unofhcial verbatim record in the custody COUNTER-MEMORIAL OF SOUTH AFRICA 35

32. The significance of the above statement appears further from an
extract from a later statement by Field-Marshal Smuts, which can con-
veniently-although out of historical sequence-he cited here. Addres-
sing the Fourth Committee of the Generai Assembly of the United

Nations at its Fourteenth Meeting on 4 November 1946, Field-Marshai
Smuts stated. intearlia:
"lt was . . incumbent on the Union Govemment as trustee of the
interests of the people of South West Africa to ensure that, when the
proper time arnved 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 Govemment by virtue of

its membership of any organization which might replace the League
of Nations; Accordingly, in May 1945. when questions relating to
trusteeship were under consideration by the San Francisco Con-
ference, the Union Government entered a reservation designed to
ensure that the future status of South West Africa and the desira-
bility of its incorporation in the Union should not be prejudiced hy
any proposals adopted by the Conference in regard to the future
of mandated Territones. The text of this reservation is given in
Paragraph I of Document A/1z3. In theevent, however, the Charter
of the United Nations by the use of the term 'may' insteadof 'shall'
in Article 77 excluded auy obligation to place Mandated Territories

under tmsteeship and made the application of the tmsteeshipsystem
to such territories a matter of voluntary agreement. This no doubt
accounts for the fact that in addition'to South West Africa tbree
other Mandates-Transjordan, Palestine and the Japanese PacificIs-
lands-have so far been excluded from the Trusteeship Systeml."
33. Towards the conclusion of the San Francisco Conference, on 25
June 1945, there was established a Preparatory Commission of the

United Nations, consisting of one representative of each signatory
Statez. The functions entrusted to it were to convoke the Generai
Assembly in its first session, to prepare the provisional agenda, docu-
ments and recommendations for the first sessions ofthe ~rinciual Ornans
of the Organization, and to do certain other defined p;epar&ory mork
pendinr establishment of the Secretariat'. One of these items of pre-
ÛaratoÏv work was to:

"Formulate recommendations concerning the possible transfer of
certain functions, activities and assets of the League of Nations

olthe Ciilted S.itiunr5r.creiarinTlic original document readbyth* S<iiitliz\fri::~n
reI>re>entatie tantainsalsothe f<,ll<.wingp:iraprü1wlil;lirhowr<,cr. natreflectcd
in the unuffiii;\.crbatim record
"As stated in the i\lemorandum, this iç nat a matter that can be decided
here, but 1am directed to mention it for the information of the Conference
ço that South Africa niay not afterwards be held to have acquiesced inthe
continuance of the Mandate or the inclusion of the territory in any form of
trustership under the nïw International Organization."
Dr. Smit, who died during rg62.affirmed by letter to Respondent before his
death. that he made the whole statement as it appears in Respondent's records.
' C.A.. OH.. fiirirSers.. SecondPnrl,Fourfh Cokm.. l'art 1. p. 239.
U.h'.C.I.O. Docs.,Vol. 5.pp. 300, 3i5 and Vol. 1,p. 630.
' Ibid.. Vol.5,pp. 300, 316.36 SOUTH WEST AFRICA

which it may be considered desirable for the new Organization to
take over on terms to be arrangedl."

The Commission first met on 27 June 1945, at San Francisco. And
when its Second Session o~enedon 24 November 1045.,n.-ondon, it had
before it a rvporr by its I:'x~~ciitii.~e'oniniittee'. tvliich\i.;<cuiiip~sedof
rzprcseiit:iti\~çjof tlie go\.criiinents of 14 States. 'l'tiisrïpurt scr\fc.d:ij a
bas15for tlic \\.ork of tlie full Comiiiii;ion. \r.liiclirendrred its o\in report
on 23 December 1945 ), setting out therein, i~iteralia, recommendafions
concerning the agenda and proposed resolutions for the First Part of the
First Session of the General Assembly, which was held in London from
IO January to 14 February 1946.
34. The Commission'stask in regard to the possible transfer of certain
functions, assets and activities of the League to the United Xations,

was carried out in the following stages:
(a) A subcommittee of the Executive Committee made certain recom-
mendations, cited in section 3 of Chapter IX of the latter's report.
The subcommittee recommended, with certain exceptions and quali-
fications, the transfer of the functions, activities and assets of the
League. Among the exceptions were the political functions of the
League; and the subcommittee also indicated that:
"Since the questions arising from the winding up of the mandate
system are dealt with in Part III, Chapter IV, no recommendation

on this subject is included here'."
In regard Cofunctions king from Treaties, the subcommittee re-
commended the adoution of a resolution bv which the United Xations
should express thei;willingness to exerciséfunctions and powers pFe-
viously entrusted to the League, reserving, however, the right to decide
which functions and powers they were prepared to take over and to
determine which organ of the United Nations, or specialized agency
associated with it, would exercise the functions or powers takenover5.
Added to this recommendation was the following:

"The transfer to the United Nations of functions or powers
entrusted to the League of Nations by treaties, conventions, agree-
ments or instmments having a political character. would if the
parties to these instmments desire, be separately considered in each
case '."
As regards possible transfer of functions and activities as well as
of assets, the subcommittee suggested the appointment by the Pre-
paratory Commission of a small committee to negotiate with the
Supervisory Commission of the League of Nations regarding "the
parallel measures that should be adopted by the League of Nations
and the United Nations"'.

(b) TheExecutive Committee's recommendations, as set out in sections
I and z of Chapter IX of its report, reveal acceptance in substance

1 U.N.C.I.O. Docs., Vol. 5. p. 316, item(c).
Doc. PC/EX/ir3/Rev. I. 12 Sov. 1g45.
Doc. PC/go. 23 Dec. ,945.
'Doc. pC/EX/i13/Rev. I,Chap. 1X. sec. 3, paras. I.2 and 5, p. 110.
Ibid., para10,pp.iirr.
' Ibid., parai32 and 33. p.114. COUNTER-SIEMOR IFLSOUTH AFRICA
37.

of the subcornmittee's recommendations. Kecommendation No. I of
the Executive Committee read as follows:
"1. that the functions, activities and assets of the League of
Nations be transferred to the United Nations with such exceptions
and qualifications as are made in the report referred to above, and
without prejudice to such action as the United Nations'may sub-
sequently take with the understanding that the contemplated
transfer does not include the political functions of the League, which
havein fact already ceased. but solely the technical and non-political
functions;" '
A footnote relative to exce~tions and qualifications read in part:

"The Committee recommends that no volitical Questions'should
bc.iiicluilc~lirithe iransfcr. 11mlrkes>roierommen&rtiunto tnins/,.r
tireuctirilicsco~~cern~rncfug.ej, ~nii~~diit~sorint~rii:iti 'o"rinlburc:~iix
(Italics added.)
Section 2 of this Chapter ofthe Executive Committee's report con-
tained a draft resolution for the General Assembly, concerning the
assumption by the United Nations of functions of the League under
international agreements. It distinguished between:
"A. Secretarial Functions";
"B. Functions and Powers of a Technical and Non-Political Charac-
ter"; and
"C. Treaties and International Conventions, Agreements and other
Instruments having a Political Character."
In regard to A and B it suggested au expression of willingness, sub-

ject ta the reservations mentioned hy the subcommittee, ta ensure
continued exercise of functions and Dowers.In reearduto Cit sue~est"U
the following:
"The General Assembly of the United Nations decides that it
wiil itself examine or wiil submit ta the appropriate organ of the
United Nations any request from the parties that the United
Nations should take over the exercise of functions or powers en-
trusted ta the League of Xations by treaties and international
conventions, agreements or other instruments having a poli-
tical character 2."
The subcommittee's recommendation that a small Committee be
appointed ta negotiate with the League Supervisory Commission
regarding parallel measures, was endorsed '.
(c) Discussions in the Preparatory Commission itself revealed that
two delegates in the Executive Committee had voted against
acceptance of Chapter IX of its report ', arid also that there was
concern amongst some delegates about the possibility that the
word "transfer", as used in the recommendations concerning func-
tions and activities of the League, could "imply a legal continuity

which woiild not in fact exist", resulting in a suggestion that the
phrase "the assumption of responsibility for certain functions and

1Bot. PC/EX[II~/R~V i.Ch@. IX, Gec.'35. r'o8.' ' ' ' ' ' ' '
Ibid., p.IIO.
*IU.N.P.C., Commillee 7. Summary Records. para.I.p.2.38 SOUTH WEST AFRICA

activities" might be adopted '.This was eventually doneZ.with the
further substitutionof 'powers" for "activities". The recommen-
dations of the Commission, relative to functions and powers, in
the form asfinally adopted by the General Assembly in its resolution
XIV (1)of 12February 1946read as follows:

"TRANSFER OF CERTAIN FUNCTIONS A,CTIVITIE SND ASSETS OF THE

LEAGUE OF NATIONS

' 1

FUNCTIONS AND POWERS BELONGING TO THE LEAGUE OF NATIONS
UNDER INTERNATIONAL AGREEMENTS

Under various treaties and international conventions, agreements
and other instmments, the Leame of Nations and its orEans
exercise. or mav be reouested toexeruse. numerous functio& or
powers for thecontinuance of which, aftér the dissolution of the
Lea~ue, it is, or mav be. desirable that the United Nations should
proGide.
Certain Members of the United Nations, which are parties to
someof these instruments and are Membersof the League of Nations,
have informed the General Assembly that, at the forthcoming
session of the Assembly of the League, they intend to move a
resolution whereby the Members of the League would, so far as
this is necessary, assent and give effect to the steps contemplated
below.

Therefore :
1. The GeneralAssembly reser;es the right to decide. after due
examination, not to assume any particular function or power, and
to determine which orean of the United Nations or which s~ecialized
agency brought into relationship with the United Natio'ns should
exercise each particular function or wwer açsumed.

2. TheGeneralAssembly records that those Membersof the United
Nations which are parties to the instruments referred to above
assent by this resolution to the stem contem~lated below and ex-
presstliëir resolve to use their good &lice.;to s6curt tlie co-operation
ofthe other parties to theinstruments sofara this may benecessary.
3. The General Assemblv declares that the United Nations is
wihg in principle, and sibject to the provisions of this resolution
and of the Charter of the United Nations, to assume the exercise
of certain functions and po\vçrs ~~L'v~uIIesI~ustcd to the I.cague
of Sations, and ndopts tlie follo\vingdecisioiii, set forA. 13.and
C below.

A. FunctionsPertainingto a Secretariat
........................

1 U.N.P.C..qi.cit.para.3.pp. 2-3.
2 Ibid.. p10-11. COUNTER-MEMORIALOF SOUTH AERICA 39

B. Functions andPowersof a Technicaland Non-PoliticalCharacter
Among the instmments referred to at the beginning of this
resolution are some of a technical and non-political character which
contain provisions, relating to the substaÏnce of the instmments.
whose due execution is dependent on the exercise, by the League
of Nations or particular organs of the League, of functions or powers
conferred by the instmments. Certain of these instmments are
intimately connected with activities which the United Nations wiil
or may continue.
It is necessary, however, to examine carefully which of the
organs of the United Nations or which of the specialized agencies
brought into relationship with the United Nations should, in the
future, exercise the functions and powers in question, in so far as
they are maintained.

Thnefore :
TheCe~ieral.-lss~mblvis \villinfi.subject to tliejc rescrv;itifins, to
takc the neceisary riittasiirvbtn cnjiirc ttiaçoritinued esercise of
tliasr functions and r)owers.and r~.fersthe matter to tlie Esonomic
and Social Council. A

C. Functionsand Powers underTrealies,International Conoentions.
Agreements andOtherInstruments Havinga PoliticalCharacter
The GeneralAssembly 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 entmsted to the League of Nations by treatles,
international conventions.agreements and other instmments having
a political character. ..'"
Regarding transfer of assets, the Preparatory Commission on 18
December 1945 set up a committee-

"to enter, on its behalf, into discussion with the League of Nations
Supervisory Commission. which has been duly authonzed by the
members of the League of Nations. for the purpose of establishing
a common plan for the transfer of the assets of the League to the
United Nations on such terms as are considered just and convenient.
This Plan will be subject, sa far as the United Nations is concerned.
to approval by the General Assembly 2".
It wiil be observed that the task of this negotiating committee was
confined to assets, the earlier recommendations of the Executive Com-
mittee and its Subcommittee (subparas. (a) and (b) above) not being
followed in so far as they related to functions and activities-ostensibly
inasmuch as the conception of a "transfer" of certain functions and
activities had been abandoned in favour of one of "assumption" of
certain functions and powers.
The Commission's recommendation regarding assets was merely that
the plan to be developed as a result of the discussions should be sub-
mitted for approval to the General Assemblyz. This was done at the

' G.A. ResolulioXIV (I)iz Feb. 1946,in U.N. Doc.A164 pp. 35-36.
Doc. PClzo. p118.4O SOUTH WEST AFRICA

First Part of the First Session, the General Assembly approving of the
common ~lan in Part III of resolution XIV of 12 Febmarv .,.,46 Isu.raJ,
35. (aj It will be recded that the Subcommittee of the Executive
Committee stated in its recommendations that "questions arising from
the winding-up of the mandate system are dealt with in Part III,
C~.~ter IV" of the Executive Committee's reDort '.
(b, Rcfcrencç tu Cliaptcr I\' of its repurt rc\.cals tliat thé l:xc.ciitive
Committee. in \.iesr.of posîiblc dela!. iiiconstitutiiig tlic:'l'rujtee-
slii~Council in termj uf .\rticle S6 oftlicCliiirtcr. recoinnir.iide~lthat
thé General Assembly create a Temporary ~r&teeshi~ Committee
"to carry out certain of the functions assigned in the Charter to
the Trusteeship Council, pending its establishment" 2.
One of the functions proposed for such a Committee was to-
"advise the General Assembly on any matters that might arise
with regard to the transfer to the United Nations of any functions
and responsibilities hitherto exercised under the mandatessystem 3".
And in section 3, paragra h g, there was included in the proposed
provisional agenda for the ! emporary TrusteeshipCommittee: "Pro-
blems arising from the transfer of functions in respect of existing
mandates from the League of Nations to the United Nations."
This is probably what the Subcommittee of the Executive Com-
mittee had in mind in speaking of "Part III, Chapter IV" of the
Executive Committee's report.

(c) The recommendations regarding a Temporary Trusteeship Com-
mittee were, however, not accepted by the Preparatory Commission.
They werereplaced by a recommendation that the General Assembly
should adopt a resolution calling on States administering territories
under League of Nations Mandate to undertake practical steps for
submitting trusteeship agreements in respect of them "preferably
not later than during the Second Part of the First Session of the
General Assembly"'. The recommendation proceeded:
"Those trusteeihip matters which will be taken up by the General
Assemblv at the First Part of its First Session for the Duruose of
expeditiig the establishment of the trusteeship system, &II be con-
sidered by the Tmsteeship Committee of the General Assembly,
using the methods which the General Assembly considers most
appropriate for the further consideration of these matters'."
(d) In the discussion preceding this recommendation, in the 4th Com-
mittee of the Preparatorv Commission on zo December 1945, the
representative of Austraiia made certain reservations coniirning
aspects of the proposed preamble, stating, inter alia:
"'l'lirre an implication that Arricle do inipoîed an obligation
on States administçring tlie temtories meiitioned in Article 77
to r~lacethose temtorics under trusrceîliin. The terms of rlrticles75
and 77 made it clear that the placing of aLterritoryund; trusteeshi?,
would bea voluntaryact.
Thirdly, the phrase 'callson', since it had a special connotation in
' Vide para.34 (a). supra.
Doc. PC/EXIri3/Rev. I, Chap. IV. sec.2.para. 3,p.55.
' Zbid., para4 (iv).p. 56.
' Doc. PC/?o. Chap. IV. sec.I,p.49. COUNTER-MEMOR IFLSOUTH AFRICA 4I

the Charter (e.g., Arts. 33 and 41). was unfortunate in this con-
~~xt.
His Delegation cordially associated itself with the language of
the resolution, but had to insist that the language of the preamble
was not within the letter and spirit of the Charter; the action of
a mandatory would be as voluntary as that of any State putting any
kind of dependentterritory undertrusteeship '."(Italics added.)
Respondent's representative on the same occasion-

"reserved the ~osition of his Delecation until the meeting of t-e
Gi:tieral l\ssen&ly, Ibcc;iusctiis co~irry found itself in :ln uiiuîual
positiuii. flic. rii;iridattrritory of Soutli-West i\fric:i ii,ualreittly
:I ielf~ovcnii~ig couiitry. and Isst !car ils 1cgisl:~tiirshail ~);fiîed
:1 rt:.;olution wkiiig fur adiiiisiion iiito the Utiioii. Hi5 Guveriimcnt
had rçi>lictltliat acceptniicc of tl.is ~>ropusal\vu impoiiihlc ou.iiiji
to the; obligations under the mandite..
The position remained open, and his Delegation could not record
its vote on the present occasion if by so doing it would imply
that South-West Africa was not free to determine its own destiny.
His Govemment would however, do everything in its power to
implement the Charter Z."
In the discussionon the same subject in the Preparatory Commission
meeting on 23 December 1945, Respondent's representative stated:
"the South African Delegation associated itself wholly with the
desire of Committee 4 to apply the principles laid down in the
Charter and that its efforts had been directed towards that end.
In view, however, of the special position of the Union of South
Afnca, which held a mandate over South-West Africa, it reserved
its position with rcgard to the document at present under review,
and especially because South Africa considered that it had fully dis-
charged the obligations laid upon it by the Allies,under the Covenant
of the League of Nations, on the advancement towards self-govern-
ment of territories under mandate, and that the time had now come

for the position to be examined as a whole. For that reason. the
South African delegation reserved jts attitude until the Assembly
met '."
(e) The Preparatory Commission's report was considered at the First
Part of the First Session of the General,Assemhly in January-
February 1946. Addressing a Plenary Meeting on 17 January 1946
the South African representative stated his Govemment's position
on the South West Africa Mandate in the following terms:
"Under these circumstances, the Union Government considers
that it is incumbent uDon it. as indeed u~on al1 other mandatorv
Powers, to consult theLpeopléof the mandated territory regarbing
the form which their own future covernment should take, since
they are the people chiefly concerned. Arrangements are now in
train for such consultations to take place and, until they have been
concluded. the South Afncan Government must reserve its position
concerning the future of the mandate, together with its right of

' rI.N.P:C., Commiftcg, Summary Recoras.p. 39.
Ibid.. p.40.
* U.N.P.C., Journal. p131.42 SOUTH WEST AFRICA

full liberty of action, as provided for in paragraph I of article80
of the Charter.
From what 1 have said 1 hope it will be clear that South West
Africa occupies a special position in relation to the Union which
differentiates that territory from any other under a C mandate.
This special position should be given full consideration in deter-
mining the future status of the temtory. South Africa is, neverthe-
less, properly conscious of her obligations under the Charter. 1 can
give every assurance that any decision taken in regard to the future
of the mandate will be characterized bv a fuli sense of our res~onsi-
bility, as a signatory of the Charter, 10 implement its provEions,
in consultation with and with the approval of the local inhabitants,
in the manner best suited to the ÜÏomotion of their material and
moral well-being'."
On 22 January 1946,in the Fourth Committee, he added:
"Refemng to the text of Article 77, he said that under the
Charter the transfer of the mandates regime to the tmsteeship
system was not obligatory. According to paragraph I of Article 80,
no rights would be altered until individual tmsteeship agreements
were concluded. It was wrong to assume that paragraph 2 of this
Article invalidated paragraph I. The position of the Union of South
Afnca was in conformitywith this legal interpretation.

territory under its mandate, refemng to the advanced stage of the

on the resolution of the Legislature of South-West Africa calling

for amalgamation with the Union. There would be no attempt to
draw up an agreement until the freely expressed will of both the
European and native opulations had been ascertained. When that
had been done, the $cision of the Union would be submitted to
the General Assembly for judgment 2."
(1) Of the other Mandatones the representative of the United King-
dom stated (on 17January 1946) :
"We have decided to enter forthwith into negotiations for placing
Tanganyika, the Cameroons and Togoland under the tmteeship
system. Preliminary negotiations have already started. 1 must
make it clear that our willingness to place these territories under
the trusteeship system naturally depends upon our being able to
negotiate terms which in our view are generally satisfactory, and
which achieve the objectives of the Charter and are in the best
interests of the inhabitants of the territories concemed. . ..
Regarding Palestine, the Assembly is aware that an Anglo-
American Committee of Enquiry, is at this very moment. examining
the question of European Jewry. which is one of the most tragic
episodes in the whole of history, and also the Palestine problem.
We think it necessary to await the Committee's report before
putting fonvard any proposais relating to the future of Palestine.
Regarding the future of Transjordan, it is the intention of His

' C.A..O.R.. FirsfSess..Firrf Part.12th Plenary Meeting, 17 Jan?1946, pp.
185-186.
' Ibid.. Fourfh Comm.3rd Meeting.22 Jan.1946. p.IO. COUNTER-MEMOR IF SOUTH AFRICA 43

hlajeity's Gov<:rnrneiitin ttiz Cnitt,il Kingdom tu takc stcps in the
near future for cstnti1i;Iiiiiicrliis territora sovercixn in<leyenclent
State and for recopnizine<ts status as Such. In thesëcircumitances.
the question of kans70rdan going under trusteeship does not
arise 1."
The representative of France stated (on 19 January 1946):
"The French Government intends to wrrv on with the work
entrusted to it by the League of Nations. ~e1ievin.gfurther that
it is in the spirit of the Charter that this work should henceforward
be carried on under the trusteeship system, it is prepared to study
the terms of the agreements by which this regime could be defined
in the case of Togo and the Cameroons, on the understanding,
however, that this shall not entail, for the populations concerned,
any diminution in the rights which they already enjoy by reason
of their integration into the French community, and further that
these agreements will be submitted for approval to the representa-
tive organs of these populations 2."

Other Mandatory Powers, New Zealand, Australia and Belgium,
stated intentions to negotiate trusteeship agreements in respect of
the Mandated territories administered by them '.
(g) In its resolution XI of 9 February 1946, the General Assembly (in
the preamble), inter alia, expressed regret at the fact thatthe Trus-
teeship Council could not be brought into being at that Session,
because trusteeship agreements had first to be concluded, and
referred to the above-mentioned recommendation of the Preparatory
Commission as regards expediting the conclusion of such agree-
ments. The resolution proceeded to state, inter alia, that-
"with respect 10 Chapters XII and XIII O/the Charter, the General
Assemhly :
Welcomesthe declarations, made by certain States administering
territories now held under mandate, of an intention to negotiate
trusteeship agreements in respect of some of those territones and,
in respect of Transjordan, to establish its independence.
Invites the States administering temtories now held under man-
date to undertake practical steps, in concert with the other States
directly concerned, for the implementation of Article 79 of the
Charter (which provides for the conclusion of agreements on the
terms of trusteeship for each territory to be placed under the
tmsteeship system), in order to submit these agreements for ap-
proval, preferably not later than during the second part of the
first session ofthe General Assembly '."

36. The situation as far as the League of Nations was concemed.
after establishment of the United Nations, was described in a League
publication as follows:
C.A., O.R.. FirslScss..Fourth Comm., 11th Plenary Meeting, 17 Jan.1946.
pp. 166-167.
Ibid..16th Plenary Meeting, iJan. 1946, p.251.
' Ibid.. 14th and 15th Plenary Meeting18 Jan.1946, pp 227, 233 and 238.
* U.N. Boc. A/64, p.13.44 SOUTH WEST AFRICA

"The ado~tion of the Charter of the United Nations bv a Con-
ference at ;hich the geat majority of the States hlembek of the
Leame were re~resented made the latter's ultimate disappearance
a fo;egone conciusion and from that time onwards tlie chiëi concem
of those responsible for its-destinies was to see that its activities
were terminated in a manner worthy of the part it bas played in
world affairs during the last quarter of a century '."

37. The Secretary-General of the League, in a communication dated
20 September 1945, drew the attention of League hfembers to the
task entrustcd at San Francisco to the United Nations Preparatory
Commission relative to "the possible transfer of certain fuiictions,
activities and assets of the League which it may be considered desirable
for the new Organization to take over on terms to be arrangedu=. The
communication contained a proposal that the Supervisory Commission
of the League be empowered to negotiate with representatives of the
United Nations in this regard and to draw up provisional terms of
transfer "subject to the final decision of the League Assembly",'. The

proposa1 was,accepted by the Members of the League, and negotiations
were entered into with the United Nations negotiating committee
established by its Preparatory Commission on 18 Decembg 19453.
By reason of the limited terms of reference of the United Nations com-
mittee3, the iiegotiations concerned assets only. The joint deliberations
were successful and resulted in the "common plan", which was approved
by the General Assembly of the United Nations in Part III of its Keso-
lution XIV of 12 February 1946 3.It still required the assent ofthe League
Assembly to become effective.
After referring to the United Nations resolutions relative to possible
assumption of League functions and powers', the authors of TheLeague
Hands Overstated:

"Thus by the time the Assembly met in its twenty-first session
it was in oss sessionof the United Nations' ~lans for takinr over
tlie l.eagi;e'j matcrial %sets nrid ,for z;irrYii;g "ri, eitlier d~rccti~
ur tliru~iglione of its rrlated agi.iicic.i;,Ilttit1.eaçuc's inu3t iriil~or-
tant fimctions and ;icti\.itics of a iiuii-~oliiir.~lcli;~r;icter.Its iiiaiii
business, therefore, was 'tomake provisconforbringing 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 cau be used to promote those high
purposes of international peace and CO-operation for which the
League itself was founded' "

38. The League Assembly met in its zrst, and last Session from 8
to 18 April 1946.
Its final resolution, adopted on 18 April 1946, provided at the com-
mencement of its operative part as follows:

' The League Hnnds Ovcr (1946). p. 6r.
Videpara. 33. supra.
' Vide para. 34 (c),supra.
' Vide para. 34,supra.
' At p. 63.The quotation -.as taken from the Rcporl of theFirslCommitfre 10lhe
Asscmbly inL. ofN.. O.J..Spec. Sup. No. igq. p.250. COUNTEI<-MEMORIAL OP SOUTH APKICA 45

"Dissolution of theLeagueof Nations

1. (1) With effect from the day following the close of the present
session of the Assembly, the League of Nations shaü cease to exist
escept for the sole purpose of the liquidation of its affairs as pro-
vided in the present resolution '."
The rest of the resolution related to practical arrangements con-
cerning liquidation. Thus in paragraph 2 provision was made for the
appointment of certain persons to form a "Board of Liquidation" which
was to "represent the Leagiie for the purpose of effecting its liquidation".

In the same paragraph the powers of the Board were circumscribed
as follows:
"Subject to the provisions of this resolution and other relevant
dec~ ~ ~s taken bv the Assembl~~at the nresent session. the Board
sh;ill lia\.,: fuj)o\vcr rupi\.,: ,ut:li dirdriun.;, maki sui11agrccinciiti
aii<I r;ikc.,il1iiiiliii1c:iiure.~s in iti (li.;crr.tionit ;t,nii<lrrs- -l)l)ru-
priate for this purpose."
Paragraph 5 of the resolution approved of the "Common Plan" for

transfer of assetsto the United Xations.
The final paragraph of the resolution provided as foilows:
"On the completion of its task, the Board shall make and publish
a report to the Governments of the Members of the League giving
a full account of the measures which it has taken, and shall declare
itself to be dissolved. On the dissolution of the Board, the liquida-
tion shall be deemed to be complete and no further claims against
the League shall he recognized."

The resolution contained no provisions with regard to Mandates or
functions in connection with hlandateç.
39. "The Assumption by the United Nations of Fnnctions and Powers
hitherto exercisedby the Leagueunder International Agreements"was the
heading of a separate resolution adopted earlier on 18 April 1946. It
read, in so far as is relevant, as follows:
"The Assembly of the League of Xations,
Having considered the resolution on the assumption by the
United Xations of functions and powers hitherto exercised by the

League of Nations under international agreements, wh-ich was
adopted bythe General Assembly ofthe United Nations on 14ebniary
16th, 1946~.
Adopts the following resolutions:

I. Custody of theOriginal Texts of International Agreements.
...................... ...

2. Funclions and Powers arising out of InternationalAgreementsof
a Technicaland Non-political Character.
The Assembly recommends the Governments of the Members
of the League to facilitate in every way the assumption withqut
interruption hy the United Nations, or by specialized agencles
brought into relationshi~ with that organization, of functions and

' C.A. I<csolulionXIVSu(i),iz Fcb. 1946, in U.N. Boc. A/64. p. 3546 SOUTH WEST AFRICA

vowers which have been entmsted to the Leame of Nations. under
international agreements of a technical and non-political character,
and which the United Nations is willing to maintain l."

40. "The Assumption by the United ~atious of Activities hitherto
fierformedby the League" waç the heading of a further separate reso-
lution of 18April 1946r, eading as foliows:
"The Assembly directs the Secretary-General of the League of
Nations to afford every facility for the assumption by the United
Nations of such non-political activities, hitherto performed by the
League, as the United Nations may decide to assume1."
41.Finaii "M, andates" was the heading of another important separ-
ate resolution of 18April 1946B .efore setting out its terms, regard is to
be had to certain events which preceded its adoption.
(a) The session was scheduled to last less than two weeks, and delegates
knew that it wonld not be possible to discuss the future of the
mandate system at any length in an appropriate Committee. In-
formal discussions were conseouentlv initiated between those Mem-
bers of the League most dire& co&erned, with a view to securing
the meatest vossible measure of ameement before the matter was
offic~allyconSidered in the Commiftee.
In pursuance of the said discussions, the representatives of Manda-
tory Powers, in addressing the Plenary Meeting of the Assembly,
made statements indicating the intentions of their governments
regarding their respective mandates. In the resolution nltimately
adopted the Assembly "'took note" of these statements.
(b) The following are relevant extracts from these statements of in-
tention by the various hfandatories:

(i) By therepresentatiueof the United Kingdom (on 9April 1946):
"The mandates administered by the United Kingdom were origi-
nally those for Iraq, Palestine, Transjordan,Tanganyika, part of the
Cameroons and part of Togoland. Two of thcse territories have
already become independent sovereign States, Iraq in 1923, and
Transjordan just the other day in 1946. As for Tanganyika and
Togoland under their mandate, and the Cameroons under their
mandate, His Majesty's Government in the United Kingdom have
already announced their intention of placing them under ,the
tmsteeshiv svstem of the United Nations. subiec, to neeotiations
oii s:iti;f;i>tor! ternis of tmstt:eîliip.
'Thefiiturcol I1.ilcstine~.:innotbcdccidediiiitil thc .Aiiglo-.Amcrican
Coniriiitte,:of I'niliiiry lia\v ren<lrrt<ltlizir report, Igutuntil the three
African territories lin\,r nctuallv heeii placcd undcr rru,tzeihip and
until fresh arrangenienrs Iin\.eheeii rt-nçhedin rcgard tu Palestine-
wh;ite\.er those arrangements nia!. be-it is the intention of His
3lajesty's Governmznt in the Linitecl Kiiigdom tu continiiz 10,ad-
minister ihcic tcrritoric~ in :iccor<l;iiiceivith-the general priiiciples
of the existing mandates2."
(ii) By therepresentativeofSouthAfrica (on 9April 1946):
"Since the last League meeting, new circumstances have arisen

L.ot IV.. J.. Spec. Sup. N194. p278.
Ibid.p. 28. COUNTER-MEMORIAL OF SOUTH AFRICA 47

obliging the mandatory Powers ta take into review the existing
arranzements for the administration of their mandates. As was fullv
explahvl at the rezent l;nite<l Sations Gcneral Assenibly in ~ondoi;,
tlie Union Ço\,crrimciit have dserned it iiicuriibeiit iipon tliern to
consult tliç ~ovles of Suuth-\Vesr f r liurooean and non-
European aiike, Îegarding the form which their ownfuture Govem-
ment should take. On the basis of those consultations, and having
regard ta the unique circumstances which so signally differentiate
South-West Africa-a territory contiguous with the Union-from
al1other mandates, it is the intention of the Union Government, at
the forthcoming session of the United Nations General Assembly in
New York, tu formulate its case for according South-West Africa
a status under which it would be internationally recognized as an
inte-.l uart of the Union. As the Assemblv will know. it is alreadv
adiiiiniitcrcd iiiid~tlictt-rriisuf tlic niuiid;t.,san intcjirlrl part of
tlic Cnion. In tlie ineantinic III<:Cnion \vil1continue to :idminister
tlie territurv ~criinuloiii;in nccordsncc \vitIl the oblientionj of the
mandate, for théadvancement and promotion of th: interests of
the inhabitants, as she has done during the past six years when
meetings of the Mandates Commission could not be held.
The disappearance of those organs of the League concernzd with
the supervision of mandates, primarily the Mandates Commission
and the Leaeue Council. will necessarilv ureclude com~lete com-
pliance with ï~ie litter ofthc nixndati:. 'fhe'vnion ~o\~ei;imciitwill
ne\~értlielessregar<l the di~iuliitioii of tlic I.,:nguo ;is in no\r;iv
dirninishine itiohlieatiuni undcr the in:ind:irc. whichit \vilcontinue
to dischar@ with thuefull and proper appreci$ion of its responsibili-
ties until such time asother arraneements are acr-ed upon concern-
ing the future status of the territGy '."

(iii) By therepresentaliveof France (on 10 April 1946) :
"The French Government intends to pursue the execution of the
mission entrusted toit by the League of Nations. It considers that it
is in accordance witb the spirit of the Charter that this mission
should henceforth be canied out under the regime of tmteeship
and it is ready to examine the terms of an agreement to define this
regime in the case of Togoland and the Cameroons2."

(iv) By therepresentative ofNew Zealand (on II April 1946) :
"New Zealand has always strongly supported the establishment of
the International Trusteeship System. and has already declared its
willingness to place the mandated territory of \Vestern Samoa under
trusteeship. ... 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 Western Samoa,therefore, the territory willcontinue
to be administered by New Zealand, in accordance with the terms of

' L.of N..O.J.S,PEC . UP.NO. 194. pp. 32-33.
Ibid.p. 34.48 SOUTH WEST AFKICA

the Mandate, for the promotion of the well-being and advancement
of the inhabitants'."
(v) By the Belgian refiresentatiue(on II April 1946):

"At the meeting of the General Assembly of the United Nations in
London on January 20th Iast, she declared her intention of entering
into negotiations with a view to placing the Territory of Ruanda-
Urundi under the new regime. In pursuance of this intention, the
Belgian Government has prepared a draft agreement settingout the
conditions under which it willadminister the territory in question.
In the course ofthe samedeclaration ofJanuary 20th. weexpressed
our confidence that the Trusteeship Council would soon come to
occupy in the United Nations Organization the important place
which it deserves. We can only repeat that hope bere and give an
assurance that, pending its realization, Belgium will remain fully
alive to al1 the obligations devolving on members of the United
Nations under article 80 of the Charter l."
(vi) By the Australian representatiue(on II April 1946):
"The trusteeship systein, strictly so called, \vil1applyonly to such
territories as are voluntarily brought within its scope by individual
trusteeship agreements. . . . After the dissolution of the League of
Nations and the consequent liquidation of the Permanent Mandates
Commission, it will be impossible to continue the mandates system
in its entirety.
Xotwithstandine this. the Government of Australia does not re-
fiard rht <Iijsoliitioii 01 the I.eakwc :~îIessening thc obligiitionj
imyojed upoii itfor tliçprotection ;iiid :idvancemcnt of the inhabit-
:irits of the m;inil:ite,dterritorirj. i~liIIrecurds as Iia\,inr still full
forcc :iiiccffect. .\ccordiiigly, until the coining iiito force;f appri>-
priaii: trustcciliip :<bTcciiientsiiiiiltr Chxpter iiof the charter. the
(;n\,c.riimcntof :\iitr;ili;i \\,<.<tiitiiito ;idiiiiiii;ter the i,rcicnt
mandated territories, in accordance with the provision 'of the
Rfandates. for the protection and advancement of the inhabitants.
In making plans for the dissolution ofthe League. the Assembly wiU
very properly wish to be assured as to the future of the mandated
territories, for the welfare of the peoples of which this League has
been responsible. So far as the Australian territories are concerned,
there is full assurance. In due course these territories will be brought
under the trusteeship system of the United Nations; until then, the
ground is covered not only by the ledge which the Government of
Australia has given to this Assembg to-day but also by the explicit
international obligations laid down in Chapter XI of the Charter,
to which 1have referred. There wiil be no gap,no interregnum, to be
provided forz."

In the earlier reference to Chapter XI of the Charter the Australian
representative had said:
zAmongst other things, each administering authority under that
chapter undertakes to supply to the United Xations information

L.01 A'.o./. s.es.sup. NO. i91. P.43
Ibid.p. 47. COUNTBR-MEMOR OIFLSOUTH AFRICA
49

concerning economic, social and educational conditions in its
dependent temtories '."
(vü) No statement was made concerning the future of the Pacific
Islands in respect of which a mandate had heen granted to Japan.
(c) After the above staternents by the representatives of the United
Kingdom aiid of Respondent had been made (on the moming of
9 April 1946), but bcfore the others could be delivered, and while
the informal discussions were stiii proceeding regarding the drafting
of a resolution, the representative of China, Dr. Liang, raised the
question of the future of Mandates in the First Committee on the
afternoon of 9 April 1946.

The Coinmittee was at the time considering the draft resolution
concerning assumption by the United Nations of League functions
and powers arising out ofinternational agreements01 a technical and
non-political charactcr (vide para. 33 above). Dr. Liang wished to
propose for discussion the following draft resolution, which
he read out:
"The Assembly,
Considering that the Trusteeship Council has not yet been consti-
tuted and that al1mandated territories under the Leame hav- not
II~:~tr:tiisferre~linru t<.rrit~ric~iiii<Icrtriistt:t:~hip;
C'oii~iJrrin~tlint tlic I.l~.i:we'ifuiiction of siipcrvisiiig iiinndated
terri tu riihoiild he truirrlrrrcd to the Cilit<-J S:itions.;IIur.lrr 10
auoid a fieriod O/ interreghum in the sz<pervisionof the mandatory
reginiein these territorieç. (Italics added.)
Recommendsthat the mandatory powers as weUas those adminis-
tering ex-enemy mandated territories shail continue to submit
aniiual reports to the United Nations and to submit to inspection
by the same until the Tmsteeship Council shall have been con-

stituted2."
l'lie Cli;<irinnii.ho\rcv<.r.mled ttiat tlic 1)roposlvas not rele\.nnt
to the itciii then under cnnsidcrntion by ilic (:oiiiniittee \\'kat tr.*iis-
pired is set fort11ns f~llo\\iiithe S~iriiriiarvI(ecords of the I.e-ctie:
"Dr. Lone Liang (China) referred to the position of territories
under mandate and to the position which would arise on the dissolu-
tion of the Leagile, 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 some time.The Chinese delegation wished to submit
a resolution recommending that the mandatory powers should
continue to submit annual reports on the mandated territones to the
United Nations and that they should agree to inspection by the
latter, pending the constitution of the trusteeship council.
The Chairman thought that the question raised by the .Chinese
dclegate could he discussed later, but for the moment they must
confine themselves ta examining the resolutions of the United
Nations in the order in wbich they appeared in document Al13.1946.

The General Assemhly of the United Nations had certainly not ha...

* VidefL.,of N., arst.Assembly, 1st,Comm., 2nd Meeting. provisional record.
An extract from tbis document was sent ta the Registrar ofthe Court by Res-
pondent's Agent under cover of a letterdatod 16 October 1962.50 SOUTH WEST AFRICA

the i~ucstioiiof the system of tni.itc~jliip in niinclirhitidrafted its
resolutioii ori fiiiictions aiid puiverj under international-ry,Teenicnts
of a technical and non-plitical character.
Dr. Lone Liang (China) accepted the Chairman's explanation '."
(d) Following this incident, the informa1 discussions mentioned above
were renewed, the Chinese delegation also participatiiig thereiu. The
final outcome was that when the question of mandates was reached
in the First Committee, on 12 April 1946, the Chinese delegate,
Dr. Liang, himself introduced a new draft of which Sir Hartley
Shawcross of the United Kingdom said, when seconding the pro-
posal, that it-
"had been settled in consultation and agreement by al1 countries
iuterested in mandates, and he thought it could,therefore, be passed
without discussion and with complete unanimity 2".
In proposing the new draft resolution Dr. Liang-

"recalled that hehad already drawn the attention of the Committee
ta the compiicated problems arising in regard to mandates from the
transfer of functions from the League ta the United Nations. The
system of tmsteeship based largely upnXII and Xthe principles of the
mandates system, but the functions of the League in that respect
were no&transferred automatically to the United Nations. The
Assembly should therefore take steps to secure the continued
application of the principles of the mandates system. As Professor
Uailey had pointed out to the Assembly on the previous day,the
League would wish to be ussured as ta the future of mandated
territones. The matter had also been referred to by Lord Cecil and
other delegates.
It was gratifyiflg.ta the Chinese delegation, as representing a
country which had always stood for the principle of trusteeship,
that al1 the Mandatorv Powers had arhnorcnced &kir intention to
administcr tlic territoGcs iinder tlieir control in accordancc \vit11
tlieir ul~lii.;itioriiuiidzr tlic inanilatei s\.steni u~rtilolherarr~riiee~~ienls
were agrcd ufion. It was to be hofiedihat the future arrangements
to bemade with regard to these temtories would apply, in full, the
firinciple of trusteeshifiunderlying the mandates system.
The Chinesedelegation had pleasure in presenting the draft resolu-
tion now before the Committee, sa that the question could be
discussed by the Assembly in a concrete form and the position of
the Leame clarified )." (Itaiics added.)
The resolutiun w;u supportcd b!. tlaFrcnch and Australian rcpre-
sentntives. The Fmncti rcl)rescnt:iti\.e, speakinl: in support.
".. . wished to stress once more the fait thatall territories under
the mandate of his Government would continue to be administered
in the spirit of the Covenant and of the Charter 2".(Italics added.)
The Australan representative:

".. . welcomed the initiative'of the Chinesedelegation in moving the

'L. 01N., O.J. ,pec No.
Ibid.,p. 79.
'Ihid., pp78-79. COUNTER-MEMORI OFLSOUTH XPRICA 51

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 terri-
tories in 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 had already 'assumed
as a Member of the United Nations and others wbich she would
assume in bringing the Territories under the internationaltrusteeship
system '."(Italics added.)
The Egyptian delegate "made al1 reservations on behalf of his
Government with regard to Palestine"'.

The draft resolution wasput to the vote and adopted unanimously
subject to drafting, the Egyptian delegate abstaining '.
(8) hé new draft contained what eventually became the Assembly's
resolution conceriiing mandates. The adoption of that resolution by
the Assembly on 18April1946, was without discussion, Savethat the
Egyptian delegate indicated that he would abstain from voting by
reason of a reservation of his Government in regard to the mandate
for Palestine. The essence of the reservation appears from the
following extracts from his statement:
"The opinion of my Government is that Palestine has intellectu-
ally, economically, and politically reached a stage where it should
no longer continue under mandate or trusteeship or whatever other
arrangements may be considered. . ..It is the view ofmy Govern-
ment that mandates have terminatedwith the dissolution otthe Leaztte
of Natzons, and that, in so far aç Palestine iç concirned, thëre
should be no auestion of ~uttine -hat countrv under trusteeship 2."
(Italics added.j
(t) Thereupoii the resolution was adopted (Egypt abstaining) 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
strenuous conditions of the modern world form a sacred trust of
civilizatioi:

I.Expresses its satisfactionwith the manncr in which the organs
of the League have performed the functions entrusted to them with
respect to the mandates system and in particular pays tribute to the
work accomplished by the Mandates Commission;
2. Recalls the role of the League in assisting Iraq to progress from
itsstatus under an 'A'mandate to a condition of complete independ-
ence, welcomesthe termination of the mandated status of Syria, the
Lebanon and Transjordan, which have, since the last session of the
Assembly, become independent members of the world community;
3. Recognizes that, on the termination of the League's existence,
its functions with respect to the mandated territories will come to

' L. ofiV,O.]. ,pec. Sup. No. 194p. 79
Ibid.pp. 58-59.52 * SOUTH WEST AFRICA

an end, but notes that Chapters XI, XII and XII1 of the Charter
of the United Nations emhody principles corresponding to those
declared in Article22 of the Covenant of the League;
4. Takes note of the expressed intentions of the members of the
League now administering territories under mandate to continue to
administer them for the weU-beingand development of the peoples
concerned in accordance with the obligations contained in the respec-
tive mandates until other arrangements have been agreed hetween
the United Nations and the respective mandatory powersl."

DI~SOLUTIO ONF THE PERMANENC TOURT OF INTERNATIONA JLSTICE

42. In pursuance of a resolution of the Preparatory Commission of
the United Nations regarding the dissolution of the Permanent Court,
the Assembly of the League of Nations on 18 April 1946, adopted a
resolution, the operative part of which read as foilows:
"Resolves :
That the Permanent Court of International Justice is for ail pur-
Dosesto be reearded as dissolved with effectfrom the dav followine
;II< ilu>cof tlirpr,-iznr sessionoftlir.Asi?n~hl\but \vithoiir pryu-
di<.to~,iich~iil~~~~r~unint;isur~juilitl~iid:~t~onsini:i! '~I>t~iiccrssary-.

The Penod1946-1949

43. Over the years of the Mandate's existence a growin desire had
developed amongst the inhabitants of South West Africa or closer as-
sociation with South Africa and for termination of the Mandate. This
desire found concrete expression in resolutions passed bythe South West
Africa Legislative Assembly as far back as 1934. Ou 14 May 1943 the
Legislative Assembly again asked for termination of the Mandate and
incorporation of the Territory in the Union of South Africa. A similar
resolution was passed on 8 illay 1946.
Since these resolutions emanated from a body wherein the non-White
sections of the population were not directly represented, Respondent
felt that they shonld be fully and directly consnlted as to tlieir wishes.
Respondent had made known on a number of occasions during 1945
and 1946,its intentions as to the future of South West Africa. This was
done first at the San Francisco Conference in May 194s3. In January
1946,at the First Part of its First Session, the United Kations General
Assembly was informed', and in April of that year also the League of
Nations Assembly at its final Session5, of Respondent's intention to
consult the iiihabitants of South West Africaregarding the future of the
Territory.
The consultations which were thereupon conducted, resulted in an

L. of N., O.J., Spec. Sup. No. 194,pp. 55,278-2j9.
Ibid.pp.55-56. 256-257.Al1the surviving memberç of the Court had already
on 31 January 1946,suhmitted their resignationç to the Secretary-General of the
League of Nations. (VideRosenne, S., The International CouofJustice (1957).
P.27.)
' Vide para. 31, supra.
' Videpara. 35.supra.
' Vide para.41(b) (ii), supra. COUNTER-MEMORIALOF SOUTH AFRICA 53

ovenvhelming majority of the non-White inhabitants of South West
Africa expressing themselves in favour of "ow country [becoming] part
of the Union .of South Africa"; 208,850 were in favour, 33,520 were
against; and 56,790 could not be consulted because of practical difficul-
ties.
The results and the manner of consultation, as well as a reaçoned
statement on the question of incorporation, were fully set out in a
"Memorandum on the administration of South West Africa and on the
wishes of its peoples as to the future status of the Territory", submit-
ted to the Secretary-General of thesUnited Nations by Respondent in
October 1946 '.
M. In November 1946 the South African representative (Field-
Marshal Smuts) further elaborated on the question of incorporation in
an address to the Fourth Committee of the United Nations General
Assembly.
He dealt, inter alia , ith the fundamental concepts of the mandate
system and stressed the importance of the wishes of the inhabitants of
mandated territories as to tlieir ultimate destiny. In emphasizing that
South West Africa was "uniquely different" from other mandated ter-
ritories, he referred to the statement by President Wilson at VersaillesZ
as to South \\'est Africa's future association with South Africa.
He advanced many reasons why incorporation would facilitate the
administration of the Territory and would also be in the best interests
of South West Africa and beneficial to its inhabitants. He referred to
the reservation made by Respondent ,at the San Francisco Conference
in May 1945, as to the future of the Territory', and concluded by
saying he was confident that the United Nations would recognize that,
'O give effect to the wishes of the population of South West Africa,
\\.ould be "the logicalapplication ofthe democratic principles of political
self-determination" and would also he-
"the inevitable fulfilment of a historical evolution which is in itself
designed to promote the best interests of the territory and confer
upon itthe benefits of the membership ofa larger cornmunity without
lossof those individual rights and responsibilities which the territory
enjoyed under the Alandate '".

Some days later Field-Marsha1 Smuts ils0 informed the Fourth
Committee that :
"It woiild not be possible for the Union Government,as aformer
mandatory to submit a trusteeship agreement in conflict with the
clearly expressed wishes of the inhabitants. The Assembly should
recognize that the implementation of the wishes of the population
was the course prescribed by the Charter and dictated by the inter-
ests of the inhabitants themselves. If, however. the Assembly did
not agree that the clear wishes of the inhabitants should be im-
plemented, the Union Government could take no other course than
. .
' U.N. DOC. AIi23. in C.A.O.R.. FirrSess.Second Part.Fourlh Comm.. l33 1.
PP. '99-235.
Quoted para. 7, supra.
Vide para.3,. supra.
' U.N. Doc. A/C.4/4r, in C.A..O.R., FirsfSess.,Second Part. Fourth Comm..
Part 1, p. 244.54 SOUTH WEST AFRICA

to abide by the declaration it had made to the last Assembly of
the League of Nations ta the effect that it would continue ta
administer the temtory as heretofore as an integral part of the
Union, and to do sa in the spirit of the principles laid down in the
mandate.
In particular the Union would, in accordance with Article 73,
paragraph (e), of the Charter, transmit regularly to the Secretary-
Generalof the United Nations 'for information purposes, subject ta
such limitations as security and constitutional regulations might
require, statistical and othei information of a technical nature
relating to economic, social and educational conditions' in South
West Africa. There was nothing in the relevant clauses of the
Charter, nor was it in the minds of those who drafted these clauses,
to support the contention that the Union Govemment could be
compeiied ta enter into a tmsteeship agreement even against its own
view or those of the people concerned '."
45. Apart from the expressed wisbes of the inhabitants, the numer-
ous other considerations relied on for incorporation, as set out in the
Memorandum' and elaborated on by Field-Marshal Smuts in his ad-
dresses, included the following (briefly stated):
(a) Expeiience had shown that the circumstances of South West
Africa did uot permit of entirely satisfactory administration under
the mandate system-or any analogous system.
(b) The geographical features and location of South West Africa, its
vast semi-desert areas, its climate and low rainfall, and its sparse
population rendered it incapable of a separate economic existence.

(c) security reasons South Africa and South West Africa should con-
stitute a single unit.
(d) The various peoples of South West Africa had a close ethnological
and national affinity with those of South Africa-a substantial num-
ber in fact being of South Airican origin and South African citizens.
(e) A large measure of integration of the administration of South West
Africa with that of South Africa-as sanctioned by Article 22 of the

integration was essential if the Territory were to share fully in the

advanced technical and administrative services South Africa could
. .provide.
(1) South West Africa was economically dependent on South Africa, not
only for financial assistance and the subsidization of its economic
life, but also as a freemarket for its agricultural produce.
(g) The uncertainty as to the political future of the Territoryinevitably
militated against racial tranquility and the optimum development
of the Territory.
46. In view of the above considerations Respondent considered that
the General Assembly ought to endorse the proposa1 for incorporation.
The General Assembly, however, rejected (in resolution 65 (1)) the
'proposal on the ground "that the African inhabitants of South West

G.A.,O.R. ,irrtSess.,Second Part, Fourlh Comm.,Part 1. 19thMeeting. 13
Nov. 1946. p.102.
UN. Doc. A/123. COUNTER-MEMOR IF SOUTH AFRICA 55

Af~ica have not yet secured political autonomy or reached a stage of
political development enabling them to express a considered opinion
which the Assembly could recognize on such an important question
as incorporation of their temtory", and recommended that South West
Africa be placed under the international trusteeship system of the United

Nations '.
In rejecting the roposal for incorporation on this ground the General
Assembly reflecte 8 on only one aspect of the factors favouring incor-
poration, namely the expressed wishes of the population, and remained
silent on all the others.
In Respondent's view the other factors, especially those relating to
the interests of the inhabitants, were of importance and should have
been given weight in the General Assembly's consideration of the pro-
posal, particularly if there were doubts as to the ability of the popula-
tion to express themselves.
From the fact that the General Assembly did not, in its resolution
65 (1), reflect on these factors at all, coupled with the nature of the
discussions in the Fourth Committee, Respondent felt justified in in-
ferring that there were other reasons which had motivated the approach
of at least some Members of the United Nations to the proposal for

incorporation.
The tone of the statements made in the Fourth Committee and the
Geiieral .\it nibly by soiiir d<:legations \\.as regardcil by I<rsponrlciir
ai a11~ii(lir;~tionthiit politi<xl niori\.atiun;, uiirclatcd aiid ,cwn dctri-
~ ~~ ~ - - ~~~~cinrr.rvsti<ifthe inh~bit,iiitjuf Suiitli \Vest ,\frica. \voiilJ
be an inherent element in any supervisory system under theUnited
Nations. This, in Respondent's view, would greatly hamper its task in
administering the Territory; and as Respondent had assumed a "sacred
trust" in respect of the inhabitants, it had in any event to be mindful
of their expressed wishes and their interests.
47. In response to the General Assembly's invitation to Respondent
"to propose for the consideration of the General Assembly a trustee-

ship agreement"', Respondent consequently replied by letter (of 23
July 1947 to the Secretary-General, inter alia, as foiiows:
"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 shaii be had to the wishes of the inhabitants
in the administration of the Territory. The wish clearly expressed
by the overwhelming majority of all the native races in South
West Africa and by unanimous vote on the part of the European
representatives of the Territory that South West Africa be incor-
porated in the Union therefore debars the Union Government from
acting in accordance with the resolution of the General Assembly,
and therebv floutine the wishes of those who under the Mandate

have beencommitGd to their charge. 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 Z."

G.A. Resolution65 (1)14 Dec. 1946. in U.N. Doc. A/64/Add.I,p. 123.(Quoted
in extenso i1,pp. 43-44.)
U.N. Doc. A/334. in C.A.,O.R., SecondSess..Fourth Comm., p. X35.56 SOUTH WEST AFRICA

In the same letter Respondent referred to a resolution adopted by
the House of Assembly of the Union Parliament, on II April 1947,
reading as foliows:

"Whereas in terms of the Treaty of Versailles full power of
legislation and administration was conferred on the Union of South
Africa in respect of the Territory of South West Africa, subject
onWhereas the League of Nations has since ceased to exist andd
was not empowered by the provisions of the Treaty of Versailles
or of the Covenant to transfer its riehts and Dowers in regard to
South West Africa to the United Ni'autionsrginization, orto any
other international orcanization or body, and did not in fact do so;
and
.Whereas the Union of South Africa has not by international
agreement consented to surrender the rights and powers so acquired,
and has not surrendered these by signing the Charter of the United
Nations Organization and'remains in full possession and exercise
thereof; and
Whereas the overwhelming majority of both the European and
non-European inhabitants of South West Africa have expressed
themselves in favour of the incorporation of South West Africa
with the Union of South Africa;
Therefore this House is of opinion that the Territory should be
represented in the Parliament of the Union as an integral portion
thereof, and',requests the Government to introduce legislation,
after consultation with the inhabitants of the Territory, providing
for its iepresentation in the Union Parliament, and that the Govern-
ment should continue to render reports to the United Nations
Organization as it has done heretofore under the Mandate'."
The letter also referred to the fact that "the Union Government have
already undertaken to submit reports on their administration for the
'information of the United h'ations" 2.
48. In cornpliance with an undertaking given by Respondent at the
First Session of the General Assembly in 1946, meetings were held
throughout South West Africa 'during 1947to acquaint the non-White
inhabitants with the General Assembly's resolution 65 (1). These meet-
ings showed that the overwhelming majority were still in- favour of
incorporation. Likewise, the South West Africa Legislative Assembly on
7 May 1947, unanimously adopted a further resolution urging incor-
po.ation.

, The wishes of the people of South West Africa were again commu-
nicated to the United Nations in a special report ',.and weie further
mittee on 25 September 1947Hfri.e intimated that Respondent:Fourth Com-

Would not proceed with the incorporationof South West Africa;
Would consider itself under no legal obligation to propos. . Trustee-
ship agreement for theTemtory; ..

U.N. Doc. A/334, op. cit., p. 134,
Vide para. 44, supra.
U.N. Doc.A/3jq/Add. r. inG.A.,O.R.,SecondSess.FourlhComm., pp. 136-138. COUNTER-MEMORIAL OF SOUTH AFRICA 57

Could not further ignore the wishes of the great majority of the in-
habitants of South West Africa who favoured incorporation. by placing
the Territory under tlie trusteeship system; and
Would continue to maintain the status quo, to administer the Terri-
tory in the spirit of the hlandate, and to transmit to the United Nations
for its information an annual report on the administration of the Terri-

tory of South West Africa.
At the thirty-third meeting of the Committee on 27 September 1947,
in response to :rrequest by the representative of Denmark for amplifica-
tion of Respondent's proposal regarding maintenance of the status quo.
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
Territory as is rcquired for Non-Self-Governing Territories under
Article 73 (e) of the Charter. It was the assumption of his Govern-
ment, he said, that the report would not be considered by the
Trusteeship Council and would not be dealt with as if a trusteeship
agreement had in fact been concluded. He fuither explained that,
since'the League of Xations had ceased to exist, the right to submit
petitions could no longer be exercised. since that rightpresup oses
a jurisdiction which would only exist where there is a right orcon-
trol or supervision, and in the view of the Union of South Africa
.no such jurisdiction is vested in the United Xations with regard
to South West Africa'."

49. In November 1947 the South African representative dealt in
the General Assembly with the question of an alleged moral obligation
to submit a tmsteeship agreement-a contention based, firstly, on the
fact that al1 other mandated territories had been placed under the
tmsteesliip system or had been offered independence, and secondly, on
resolutions of the General Assembly of g Februaryz and 14 December3
1946.He again stressed the many and material respects in which South
West Africa differed from other Mandated territories, and emphasized
that Respondent would be acting in defiance of the wishes of the vast
majority of the inhabitants ifa trusteesbip agreement were concluded.
He added that, whereas the resolution of y February 1946 conveyed
an invitation, and that of 14 December 1946 a recommendation.that a
trusteeship agreement be submitted in respect of South West Africa,
his Government had "conscientiously performed" its duty in giving
"most anxious consideration" to the recommendation, but could not
accede thereto 4.
At the same time he informed the General Assembly that-
"the Union of South Africa has expressed its readiness to submit
annual reports for the information of the United Xations. That
undertaking stands. Although these reports, if accepted, will be
rendered on the basis that the United Xations has no supervisory
jurisdictioii in reipect of this territory they will serve to keep the
United Nations informed in much the same way as they will-be

' U.N. Doc. A/422. in C.A.. O.R.. SecondSess., PIenAfeelirigVol. IIp. 1538.
* C.A. Rcsoluiion XI(1).in U.N. Doc. A/64,p. 13. .
C.A. Resolution 65 (1).
' C.A.. O.R.. Second Scsr., Vol.1,105thPlenary MeetingINov. ,947 pp. 632ff.5s SOUTH WEST AFRlCA

kept informed in relation to Non-Self-Governing Territories under
Article 73 (e) of the Charter1."
50. Despite the above, the General Assembly adopted a resolution
maintaining its previous recommendation that South West Africa be
placed under the trusteeship system and urging Respondent to propose
for the consideration of the General Assembly a trusteeship agreement
for the Territory, motivating its resolution in the following terms:

"Whereas it is a fact that al1other states administering temtories
previously held under mandate have placed these territories under
the Trusteeship system or offeredthem independenceZ."
At the Third Session of the General Assembly in 1948 the South
African representative formally reiterated-

"that the Union Government, after full consideration of aii the
aspects of the matter, had once again come to the conclusion that
it would be in the interests neither of the Territory of South West
Africa and its people, nor of the Union and its people, to place the
Territory under the authority of the Tmsteeship Council of the
United Nations, and that, in the circumstances, the Government
regretted not being able to comply with the request of the United
Nations Assembly to submit,voluntarily, a trnsteeshipagreement
51. In compliance with its earlier voluntary undertaking, Respondent
submitted in September 1947 a report on South West Africa for the
year 1946.
This report was submitted on the basis clearly stated in the said
undertaking, namely :

(a) that it would be for information pnrposes only, containing the
same type of information on the Territory as required for Non-
Self-Goveming Territories under Article 73 (e) of the Charter; and
(b) that Respondent did not recognize the United Nations as a super-
visory authority in respect of the Territory-the reports not being
intended for use by the United Xations as if the latter were the
supervisory authority or as if a trusteeship agreement had in fact
been entered into.
After receipt of this report, the General Assembly authorized-

"the Trusteeship Council in the meantime to examine the report on
South West Africa ... and to submit its observations thereon to
the General Assembly '".
Respondent declined an invitation hy the Trusteeship Council to
send a representative to attend its examination of the report since such
action would not have been consistent with its view that the Council
was not vested with supervisory functions in respect of South West
Africa.
Respondent, however, offered to transmit further information in
writing if requested to do so. In response to such a request, further

C.A.. OR., Second Seis.,op. cit.. p. 632.
* C.A. Resolt'tion 14(11).i Nov. 1947.in UN. Doc. A/g~g, p. 47.
GA., O.R., Third Sess.,Part 1, Fourth Comm., 76th Meeting, g Nov. 1948.
p.'2C.A. Resolution141 (II). COUNTER-MEMOK OlL SOUTH AFRICA 59

information was submitted; and in a covering letter of 31 May Respon-
dent, inter alia:
"re-iterate(d) that the transmission to the United Nations of
information on South West Africa, in the form of an annual report
or any other form, is on a voluntary basis and is for purposes of
information only. They have on several 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 ivith normal
democratic practice, they are willing and anxious to make available
to the world such facts and figuresas are readily at their disposal. ..
The Union Government 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 calls for 'statistical and other
information of a technical nature' and makes no reference to in-
formation on questions of policy.
In these circumstances the Union Government do not consider
thdt inforni;irioii oii 1ii:tttrr; of l~oliçy.p;irticul;irly ftipolit\..
sliuul<lbe iiiclii,lciin reporr (oriiiniiy supplciiiciit tu tlic report,
\\.liich is iiiteiided to ba factunl niid tatijtical accoiiiit uf the
administration of the Temtory over the period of a calendar year.
Xevertheless, the Union Government are anxious to be as helpful
andas co-o~erative as ~ossibleand have. therefore. on this occasion
replied in lu11to the'questions dealing with virions aspects of
policy. The Union Government do not, however, remrd this as
breaf'ing a precedent. Furthermore, the rendering oj replies on
policy should not be coustrued as a commitment as to future policy
or as implying any measure of accountability to the United Nations
on the Dart ofthe Union Government. In this connexion the Union
GoverRment have noted that their declared intention to administer
the Territory in the spirit of the mandate has been construed in
some quarteis as implying 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 1946, esplicitly refrained from transferring its functions in
respect of mandates to the IJnited Xations l."
When the Tmsteeship Council's observations on the report on South
West Africa2 came before the Fourth Committee in 1948, the South
African representative referred ta Respondent's earlier reservations, and
stated that, in view thereof:

"the Union could not admit the right of the Trusteeship Council to
use the report for ptirposes for urhich it had not been intended:
still less could the Trusteeship Council assume for itself the power
claimed in its resolution i.e. 'to determine whether the Union of
South Africa is adequately discharging its responsibilities under the
terms of the mandate. . ..' 1;urthermore. that Dowerwas claimed in
respect of a territory which was not a tkst tehtory and in respect
of which no trusteeship ak~eement existed. The South African
'
U.N. Doc. 'ïI175, June 1948,pp. ii-iii.
C.A., O.R. ,hird Sess.Sup. So. 9 (A16031, pp.42-4560 SOUTH WEST AFRICA

delegation considered that in so doing the Council had exceeded
its powers '."

The South African representative also observed that the Trusteeship
Council, in dealing with the report, apparently considered that it had
a supervisoryfunction in respect of SouthWest Africa and that Respond-
ent was accountable to it for the administration of the Territory-
which was not in accordance with the basis of the undertaking with
regard to reports 2.

52. Respondent does not deal here with the substance ofthe Tmstee-
ship Council's comments on the report3. What is relevant, however, is
th& those comments and the subieouexit discussions thereon did not
observe the reservations under whic6 the report had been submitted.
Moreover, manv of the conclusions contained in the Trusteeship
Council's observafions were a~narentlv based on misconce~tions as Co
conditions in the Territory, and the drscussions in the ~ou;th Commit-
tee made it clear to the South African dele~ation that similar miscon-
ce~tions existed also amonest some of the hïembers of that Committee.
l'he Soutli Alricnii rïl>rescntati\.c conseqiieiitly dcitlt at Icngtli with coii-
dition, IIIthe Tcrritor\.' in order to acquaint the Coiniiiittce \vit11the

rme facts. It \vas found. Iiosi:~1:1.tlint a rn:tioritv of \leml>~.rsdid not
pay regard to the information givén,and Som; coitinued with prepared
speeches based on the Trusteeship Council's observations and the mis-
conceutions involved therein-a ~a~ ~to~which~ ~ ~Sou~h African reure-
sentaiive drew attention5.
Representatives of certain States also used the occasion for attacking
Respondent's domestic policies in the Union. The South African repre-
sentative had occasion to point out that such attacks,. hased on un-
founded allegations, were unrelated to the welfare of the peoples of
South West Africa.
In a statement to the General Assembly on 26 Kovember 1948,
after explaining once more the reasons why South Africa could not
enter into a Trusteeship agreement, the South African representative
in conclusion recalled:

"that the League of Nations, at the last session of its Assembly, had
not referred to Tmsteeship Agreements and had simply stated
that territories should be administered as heretofore until other
arrangements could be made. The Unionwas anxious to make
arrangements which would be satisfactory to all concemed. Al1he
asked the General Assembly was that it should not make his
Government'stask more difficult and should believe in his country's
eood faith as the urevious Mandates Commission had done. The
u
Union was not likefy to do anything in connexion with the territory
of South West Africa which might earn the ill-will of,other nations.

'G.A.. O.R., Third Sess.,Part I, Fourth Comm., 76th Meeting. 9 Nov. 1948.
p. 288. '
'IVide para. r, supra.ioNov. rg48. p. 297.
'G.A.. O.R.. Third Scss., Par1 I. Fourth Comm.. 78th Aleeting, II Xov. 1948.
DD. 108 A.
..'-Ibid., 8rst Meeting16 Nov. 1948. pp. 343-344. COUNTER-MEMORIALOF SOUTH AFRICA 61

He asked the Assembly to keep the door open for other arrange-
ments '."
The majority in the General Assembly nevertheless siipported a reso-
lution maintainine its ~revious reauests that South West Africa be
yla~cil undcr tlicu~iiitt:J S.~tii,nj truiti:csliip .;y>térii..ilil <:slir<siiiig
rcgr<:rrliat I<i,~~oiitlzntIiad iiot ?et il<iiiesu. fliis rcsoliiri(227 (111))
dsu coiiraincd rhc folloiviiigreconiineiidarion:

"... Without prejudice to its resolutions of 14 December 1946,
and I November 1947,that the Union of South Africa, until agree-
ment is reached with the United Nations regarding the future of
South West Africa, coiitinue to supply annually information on
its administration of the Territory 2."
53. In a letter of II July 1949to the Secretary-General. Respondent
referred to the previous explanations for its inability to place South
West Africa under the United Nations tmsteeship systein and, in
referring to resolution 227 (III), stated, inter alia,

"The recommcndation of the General Assembly that the Union
should continue to siipply information on its administration of
South West Africa has been given most careful consideration.
It will be recalled, however, that the Union Government have
at no time recognized any legal obligations on their part to supply
information on South West Afnca to the United Nations, but in a
spirit of goodwill, CO-operationand helpfulness offered to provide
the United Nations with reports on the administration of South
West Africa, \rith 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 \Vest Africa. In this spirit a report was sub-
mitted in 1947. and in 1948 detailed replies were furnished to a
subsequent questionnaire, formulated by the Trusteeship Council. It
was emphasized üt the time that the forwarding of information ou
policy should not be regarded as creating a precedent, or construed
as a commitment for the future or as irnplying any measure,of
accountability to the United Nations on the part of the Union

Govemment. The Union Government also expressed their confi-
dence that the Trusteeship Council would approach its task in an
entirely objective manner and examine the report in the same
spirit of goodwill, CO-operationand helpfulness as had motivated
the Union inmaking the information available..
These hopes have not been realized. Instead the submission pf
information has provided an opportunity to utilize the Trusteeship
Council and the Trusteeshi Cornmittee as a fomm for unjustifted
criticism and censure of tfe Union Government's administration
not onlv in South West Africa but in the Union as well. Inferences
and de;luctirms have becn dra\rn from rht inforn1;itiuiisiiI~iliittt'~l
whicti arc.qiiite iricuiijisrciir with facti aiiil r,:~litiei Tli,: riiiiiiii~ler-
standings iiiiinccus:itioii~IO trhich tlie Iliiired S;itioiiî dis~u~sioiiS

' C.A..O.R. Third Sers., ParlI, FourthComm., 164th Flenary Meeting, 26 Nov.
'943,PP. 589-590.
' C.A. Resolufiot227 (III). 26 Nov.1948. in U.N. Doc. AI8io. pp. 89-9r.62 SOUTH WEST AFRICA

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 essential to successful administration. Further-
more, the very act of submitting a report has created in the minds
of a number of Members of the United Nations an impression that
the Trusteeship Council is competent to make recommendations
on matters of interna1 administration of South West Africa and
has fostered other misconceptions regarding the status of this
Territory.
In these circumstances 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 h'ations, and haveregret-
fully come to the coiiclusion that in the interests of efficientadmini-

stration no further reports should be fonvarded. In coming to this
decision the Union Government are in no way motivated by a
desire to withliold from the world factual and other information
regarding South West Africa published in accordance with the
customary practice of democratic 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 by the Administrator to the South West African Legislature,
blue books, and other governmental publications '."
At the Fourth Session of the General Assembly in Septembcr 1949
the South African representative (with reference to the aforesaid letter)
dealt fuUywith Respondent's decision to discontinue the submission of
reports Z.
54. In the premises aforestated the following statements by the
regarding the events over the years 1946 to 1949are
Applicants
unfounded :
(a) "The Union's announcement[tht submission O/reports wouldbe
disconlinzied1 sipnalledils repudiationof previousexfiLicic lommilmenls 3."
There waç nehe an ex~iicit commitment nor a're~udiation.
From the outset ~es~ohdent had made it clear th reports would
be submitted voluntarily, for information purposes only and not in
recognition of any supervisory functions vested in the United Nations.
This was Respondent's attitude throughout and explicitly re-
peated in statements to, and correspondence with, the United Rations
over the years under consideration. When tberefore, the General Assem-
bly failed to observe the reservations attached to Respondent's under-
taking, withdrawal thereof did not involve a repudiation of a commit-
ment '.
(b) "By Nouember,1948, the Union Gouernmenlwas openly ilenying

' U.N. floc. Ai~q,in C.A.O.R., Fourth Sess..FourthComm.. Annex. 1,7.
C.A.,O.R., Fourth Sess.. Fottrth Comm.128th Meeting. 18Sov. 1949. p.200.
' Vide 1,p.47.
' The General Assembly itself in this regard recorded that Respondent had "with-
drawn its previous undertaking" (C.A. Rcs. 337 (IV)) in preference to earlier
proposed warding objected to by Respondent to the effect that it had "repudiated
its previousassurance". Vide C.A., O.R.. Fourth Sess.,269th Plenary Xleeting.
6 De=. 1949. p. 535. COUNTER-~IEMORI.*L OF SOUTH AFRICA 63

its obligatio~tsunder the Ma~tdatealid insislingin contradiction ta its
statements of a year earlier-thut the Mandate had expired'."
In support of this contention Ap licants refer to a statement by Mr.
Eric Louw, the representative of $ outh Africa, in November 1948, in
which he referred to the "previous Mandate, since expired".
From the outset, and throughout the years under consideration, Res-
pondent had repeatedly stated its intention to observe the "sacred
tmst" which it had assumed, and to administer the 'ïerritory "in the
spirit of the Mandate".
In fact, the very statement of bfr. Louw, rderred to above, contained
also the followiiig:
"It is the firm intention of the South African Government to
administer the territory in the spirit of the mandate which was
originally conferred upon the Union, and that it will at al1 times
promote to the best of its ability the wellbeing of al1 sections of
the populatioti.
In making this statement, 1 am obliged to add that the words
'the spirit of the mandate' should not be interpreted as includirig
obligations other than that stated in the preceding sentence. It is
unfortunately necessary for me to state this proviso because of
the fact that the same phrase. when used bv the orevious rovern-
ment. \i.;~sI;iteriiit,:rprctiii in.iiiiier ivliizh!\.asiiiiaccoril:~nçt:
witli ttte itileritions of r11ii..o!.crnment '."
This attitude was repeated in the following statement of the South
.4frican representative to the General Assembly on 6 December 1949:

"My Government is fully conscious of that trust, and whatever
Our critics may Say, it has never deviated from the path along
which it is endeavouring to lead the peoples of South West Africa
to the achievement of that degree of development which is their
right and which it is my Government's duty to ensure to them 3."
On the other hand, Respondent had from the dissolution of the
League taken up the attitude that the Mandate in its original form,
and with the obligations imposed therein, particularly that of accoun-
tability to the League of h'ations, had not survived the League'.
Respondent, therefore, while denying that the United Nations was
vested with supervisory functions over South West Africa (an attitude
rnaintained throughout) at the same time intimated that it would ob-
serve the "sacrecl trust" assumed under the Mandate and would ad-
minister the Territory in the spirit of the Mandate (also an attitude
maintained throiighout).
(c) "It is apparent jrom the history summarized aboue that in the
9erzod 1946-1949, the Union's policy concerning the Mandateunderwent
a ma~ked change. At the beginning of the fieriod, the Union conceded
the exzsttenceof the Mandate and its obligationsthereunder.including that

Vide 1,p. 47.
Verbatim text. A summary appears &C.A., O.R., Tlsird Sess., Fourth Co>nrti..
76th Meeting, gSov. 1948, pp. 292.293.
' Verbatim text. A summary appears in C.A., O.R.,Fourlh Sess.269th Plenary
Meeting. 6 Dec. igig, para. 9. p. 524.
' Vide. e.gstatement by Field-Marshal Smuts of November ,glu, quoted in para.
4.1supra.and extract from letter of23July 1947. cited in para. 47, supra. SOUTH WEST AFRICA
64

of rendering reportsto the United Nations. By the end O/ the period, the
Union wasreferringtotheMandate as'the previousMandate, sinceexpired',
insisting that the administration of the Territory was a matter solely of
interna1 concern, and refusing to render reports ta the United Nations1."
Respondent's policy underwent no marked change over the period
1946-1949,particularly in that:
(i) At no time after the dissolution of the League,did Respondent
concede the existence of the Mandate in its original form and as
stiU encompassing its original obligations.
(ii) Respondent throughout denied that the United Nations was vested
with any supervisory functions in respect of South West Africa
and throughout denied that it was obliged to render reports to the
United Nations.
(üi) liespondent throughout maintained its expressed intention to ob-
serve the "sacred trust" which it had assumed and to administer
the Territory in the spirit of the Mandate.
55. The statement by the representative of Liberia quoted at 1,
page 47, to the effect that Respondent wished to have the annexation of
South M'est Africa accepted as a "fait accompli", was unfounded and
was. at the time, specificallydenied by the South African representative
who said, inter alia, the following:
"1 endeavoured to prove to the Committee that not only was the
closer association between the Union and the territorv, ... within
the authority conferred upon my Government by fhe mandate,
but also that it was not 'annexation'-the tcmtory having retained
its separate identity . . .
Yet my Government \vas accused of having unilaterally annexed
the territory and of having placed this organization before an ac-
complishcd fact. This criticism %vasmaintained throughout Our
debates-and that despite the facts of the case to which my delega-
tion repeatedly drew attention. Surely, argument ho~ver frank
and hoiiest. cannot ~revail under such circumstances2.
~~,
The General Assembly, in resolution 227 (III) of 26 Novembo 1948,
took note of Respondent's assurance that its contemplated legislation
for closer association "does not mean incorporation".
Respondent had previously made it clear that it did not intend pro-
ceeding with its proposal to incorporate South West Africa in the face
of the United Xations rejection of that proposal3.
56. The General Assembly in 1949 decided to ask the Court for an
Advisory Opinion. But it is somewhat misleading to suggest, as the
Applicants do, that this happened because-
"it was obvious that the Uiiion's concepts. of its legal obligations
under the Mandate were essential19 at variance with those of most
other United Nations Members . ..' ".
Indeed there was major disagreement between other United Nations
&lembers themselves as to certain aspects of the legal situation which

' Vide 1,p. 48.
Verbatirn text. A summary appevrs in C.A.,O.R., Fourth Sers.. 269th Plenary
Meeting, 6 Dec. 1949,paras. 13and 14.p.524.
' Vide.e.g.paras. 44and 47,supra.
' Vide 1,p. &. COUNTEK-MEMORIAL OF SOUTH AFRICA 65

had arisen. particularly with regard ta the question whether Respon-
dent was oblined-to submit a trusteeship agreem.nt .or South West
Africa '.
On the other hand, in view of Applicants' Submissions 2, 7 and 8 in
these proceedinns, concernin~ supervisory functions, reports and peti-

tions, it is of pirticular im@rtance to note that there was substantial
agTeement between Respondent and the other United Nations Members
to the effect that the supervisory powers of the League had not been
transferred to the United Xations in reswct of Mandates not converted
into trusteeships.
In order to facilitate an accurate review of the attitudes of United
Nations Memhers in this last-mentioned respect, Respondent attaches
an Annex, marked "A", the First Part of which comprises an i»dex to
statements made by the representatives of al1 the States which parti-
cipated in debates on South West Africa over the years 1947. 1948 and
1949, and the Second Part of which contains extracts from statements
made by representatives of certain States over the said yearsZ.
In the following paragraphs, Respondent indicates briefly what it
submits ta be significant aspects emerging irom the contents of Annex A.

57. (a) As reflected in the First Part of Annex A, the representatives
of 41 Member States addressed the various organs of the United Nations
-the Fourth Committee, the Tmsteeship Council and the General
Assembly-during the year 1947on the question of South West Africa '.
(b) The statements made by the South African re resentatives con-
veyed Respondent's attitude clearly and unam&uously, namely
that Respoiident was not obliged to conclude a trusteeship agree-

ment for South West Africa, and was not prepared to do so 4, and
that, in the absence of a trusteeshipagreement, the United Nations
had no supervisory jurisdiction over South West Africas. In this
attitude Respondent remained consistent throughout.
(c) With regard ta the other 40 States which participated in the debates
during 1947, one finds that they differed in their attitudes re-
garding varions as ects of the situation.
Some contende 8 that Respondent was legallyobliged toenter into
a trusteeship agreement concerning South West Africa; others
denied such an obligation 6.

' Vide summary of attitudes of Members as given in the IVritten Statement ofthe
United States of America in Internotional Sfatusof South-IVert Africa. Pleadtngs.
Oral Argumenls, Uocumenls, pp. 122-123, from which it appears that States which
toak part in debates on this particularquestion iveremore or less equally divideri.
Respondent's proposal regarding incorporation of South IYest Africa was
rejected by the resolution of theGeneral Assembly on rq December 1946. Debates
regarding Respondent's obligations under the Mandate. as a resultof the rejection
of the incorporationproposal, çtarted in 1947.
hlemherî.94Of the 51. 34 had been original &lembers of the Leaguehof Nations andal
32 had been hlembers of the League at the time of its dissolution.
' GA., O.R.. Firrf Sess.. Second Parl, Foirrlh Comm., Part 1. 19th hleeting. 13
Xov. 1946. pp. 10,-ioz. and C.A.. O.R., Sscond Sess., FoirrlhComm.. 3rst hleeting.
25 Sep. 1947;~~. 3-9.
' C.A.. OR.. Second Sess., Fourlh Com>n.,33rd Meeting, 27 Sep. r947, pp. 13-18.
and C.A.. O.R.. Seor~d Sers., 105th Plenary Meeting, I Sov. r947, pp. 626-638.
Vide para: 48 to 51, supra.
Vide footnote I,above.66 SOUTH WEST AFRICA

Some States contended for an obligation on the part of Respon-
dent to submit to the Secretary-General in tms of Article 73 (e)
of the Charter, statistical and other information of a technical
nature-a different and very much lesser obligation than that of
-reporting and accounting under the Mandate.
Other States again expressed the viewthat Respondent. in under-
taking to submit annual reports for the information of the United
Nations, had committed itself to the United Nations. This view
dent's voluntary undertaking, which was later withdrawn o'.espon-
There were alço States that contended that the Mandate had
kipsetl altogether. aiid others thnt coiiteiided iiot for Iqal obligations
on the part of Respondeiit. but for obligations which they terrnetl
"politicil" or "moral". .
But, whatever these differences, one thing is clear, and that is
that not a single State, in response ta Respondeut's attitude, either
alleged or suggested that there was at any time an agreement, ex-
press or implied, or any understanding, whereby the League's super-
visory powers over the Mandate became vested in the United Na-
tions, or whereby Respondent became obliged ta report and account
ta the United Nations regarding compliance with substantive
mandate obligations.
,(d) At least 14 of the 41 States which took part in the debates acknow-
ledged, either expressly or by clearimplication, that in the absence of
a tmsteeship agreement the United Nations would have no super-
visory owers in res ct of South West Africa. These States were
Austra la, China, Coombia, Cuba, France, India, Iraq, the Nether-
Union, the United States of America an8umguay.epublicExtracts from
the statements made by representatives of these 14 States are
quoted at pages 275 to 282 of the Second Part of Annex A.

cative of the tenor of the statements made:racts. The followingare indi-

Mr. Gerig,representativeoftheUnitedStatesofAmerica,in theTrustee-
ship Councdon rz December1947:
"It mas said here earlier this afternoon, and I did no1heurany
membn abject,that while we all hop-my delegation as much as
any delegation feels that way-that there will be a trusteeship
absenceof aortrusteeshifiagreement,have supervisory ftcnctionsove?e
this territorv. Therefore. 1 do not think we oueht to im~lv that we

MY.Kerncamp, representativeoftheNetherlandsin theGeneralAssem-
bly on INovember1947 :

a supervising authority, there is no longer a mandate system. The
voluntary transmission of information, merely for the sake of in-
formation, by the Union of South Africa to the Tmsteeship Council

' A matterdealtwith in paras44 and48 to 53,supra. COONTER-MEMOR IF SOUTH AFRICA
67

does not eive the Council the same iurisdiction as the Permanent
~ommissi& on Mandates had.
.. . we consider that the present situationconstitutes a step back-
ward, in so far as a territorj once under international snperv;sion is
nom mder no superintendence . .." (Italics added.)
Draft resolutionproposedby the representativeof India in theGeneral
Assembly on IOctober1947 (para. 5) :

"Whereas the temtorv of South West Africa, thou~h not self-
goveriiing, ts 111prt~se~2itotrts~lfthe contr<.la1t.SI~~P~L~E~VIIO/ th6
C'1iire1Yatro~is."(Itnlicsadded.,
The statements on behalf of ~akistan and China were equally expli-
cit, and those on behalf of Australia also very clear on the point. In
other cases the attitude emerged by necessary implication. Thus the
representatives of Colombia, Iraq, the Soviet Union and Uruguay, con-
sidered that the Mandate had lapsed altogether-from which would
foilow that there could be no duty of reporting and accounting with
regard to Mandate obligations. And in the cases of France, New Zea-
land, Cuba and the Philippine Republic the statements were to the
effect that the information in fact submitted by South Africa could be
examined for information purposes only, or not at all.

58. During the years 1948and 1949,in debates on South West'Africa,
similar views were expressed also on behalf of at least four other States.
They were Canada 1,Costa Rica 2,Greece 3,and the United Kingdom '.
With a view to curtailment of the record, the extract from the state-
ment made by the representative of the lastmentioned State only is
recited here.
Sir TerenceShone, in the Fourth Committee on 24 November 1949:
"It could not be said that the Government of the Union of South
Africa had repudiated its previous assurance [conceming rendering

of reports] since it had completeliberty to decide whether or not ta
transmit information." (Italicsadded.)
59. Also in respect of other mandated territories, similar views were
expressed from time to time up ta 1948 by representatives of Member
States.
(a) In a debate concerning a draft Tmsteeship Agreement for Western
Samoa in a sub-committee of the Fourth Committee on 22 Novem-
ber 1946,the representative of New Zealand stated as follows:

"New Zealand, although it would be most CO-operative,could not
be forced ta amend its draft agreement. The result 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-govem-
ment. In this euentt~ality,New Zealand wouldhave tocarryonwithout
theprivilegeofthesupervision bythe UnitedNations whichitdesired 4."
(Italics added.)

' Vide Annex A, Second Part, p. 2x5infvn.
Ibid.,p.282.
' Ibid.,p.286.
Nov.G1946.Rp.28.irs~Sess.,Second Parl, Fourlh Comm., Part II, 5th Meeting, 2268 SOUTH WEST AFRICA

(b) On 2 April 1947, during the 124th Aleetingof the Security Council,
there \vas a discussion of a draft trusteeship agreement for the
former Japanese hfandated Islands, more particularly with refer-
ence to a Polish amendment to insert in the preamhle the words:
"Whereas Japan has violated the terms of the abovemandate of the

Leagne of iVations and has thiis forfeited her mandate. .. . '"
Mr.Gromyko'sstatement, onbehalf ofthe SovietUnion,contained,
inter alia, the following:
"It seems to me that there is no need for such an amciidment.
There is no cofitinuity, eitherlegalor othemise, betweenthe mandatory
system of the Leagzceof Nations and the Trusteeship System laid down
in the United Nations Charter. There is therefore notliing which
might entitle the Security Council to discuss this question, let

alone take any decisions on it. Themandatory system of the League
ofXations is distinct from the Trusteeship System which the United
Xations is now trying to establish." (Italics added.)
After referring to "a difference in the fundamental priiiciples" of
the tmo systems, he proceeded:

"It seems to me. moreover. that in this conne~ ~n ~e ~hould~ ~t~
loji. >lgtlof tilïfilct1tl:lfSlnCctilere 1s il0 colitiiluil!. such 3s \!'oiiid
1>t.n111 xtiid justif!LIIC <Iii<:~~~~u ifi1111;.ltieition l>\ [lie Secnrity
C'oiint.il.rlic li~ft~rciiiii~ot~~~\.citil'rlttcSII~I,I,IIIof thc ~~ii~tt<:r.
For the reasons whicli 1 have );st stated, the Security Council is
not competent to decide to what extent Japan may have violatell the
conditions of the mandate system and the dulies involved in thead-
ministration of mandatedterritories 2." (Italics addcd.)

(c) The case of Palestine was investigated and reported upon by a
United Nations Special Committee, consisting of representatives
of the following II Alembers of the United Nations: Australia,
Canada, Czechoslo\~akia,Guatemala, India, Iran, the Xethcrlands,
Peru, Sweden, Uruguay and Yugoslavia.
The foilowing are estracts from the Committee's report dated 3
September 1947, al1 from portions unanimoirsly agreed to by the
Committee.

"Following the Second World \Var, the establishment of the
United Nations in 1045 andthe dissolution of the Leaeue of Nations
the following year Gëned a new phase in the history Of the manda-
tory régime. The mandatory Power, in the absence of the 1-eague
and its Permanent Mandates Commission, had no international
' authorityto whichit might submit reportsand generallyaccocbnf tor the
exercisc of its rcsponsibilitics in accordance with the terms of the
Mandate. Having this in mind, at the final session of the League
Assembly the United Kingdom representativedeclaredthat Palestine
wonld be administercd 'in accordancewith the generalprinciples' of
the existingMandate nntil 'fresharrangementshad beenreached' '."

(Italics added.)
After recommending unanimously that :"The Mandate forPalestine

' S.C.O,.R. ,ccond l'cor,So. 31. 124thMeeting. 2 Apr. ,947, pp. G4j-644.
Ibid., p.648.
C.A.,O.R. .econd Sess.,Sup. No. rr. Vol.1 (A/j64). pp. 26-27. COUXTEH-MEMOR IFLSOUTH AFRICA 69

shall be terminated at the earliest practicable date '", the Com-
mittee commented as follows:
"(d) It may be seriously questioned whether, in any event, the
Mandate would now be possible of execution. The essential feature
of the mandates system was that it gave an international status
to the mandated territories. This involved a positive element of
international responsibility for the mandated territories and an
international accountability to the Council of the League of Nations
on the part of each mandatory for the weU-beingand development
of the peoples of those territories. The Permanent Mandates Com-
mission was created for the specific purpose of assisting the Council
of the League in this function. But the League of Nations and the
Mandates Commission have been dissolved, and there is now no
means of discharging fully the international obligation with regard
to a mandated territoryother than by @lacingthe tervitory under the
International Trusteeshi@System of the United Nations.
(e) The International Trusteeship System, however, has not
automatically taken overthe functions of the mandates system with
regard to mandated territories. Territories can be placed under
Trusteeship only by means of individual Trusteeship Agreements
approved by a two-thirds majority of the General Assembly.
(f) The most the mandatory could now do, therefore,in the event
of the contilzuationof the Mandate, would be to carry out its adminis-
tration, in the s@iritof the Mandate, without being able to discharge
its international obligationsin accordancewith the intent of the man-
dates system. At the time of the termination of the Permanent
Mandates Commission in April 1946, the mandatory Power did, in
fact,declare its intention to carry on the administration of Palestine.
pending a new arrangement, in accordance with the general prin-
ciples of the Mandate. The mandatory Power has itself now referred
the matter to the United Nations 2." (Italics added.)
The report also contained a special note by Sir Abdur Rahman,
representative ofIndia, in whichnote the followingpassageoccurred:
"Moreover, the international machinery in the form of the Per-
manent Mandates Commission, which had heen created for the
purpose of scrutinizing the actions of the Mandatory Powers, and,to
which they were bouud to submit annual reports, has, along with
the League of Nations, ceased to exist. There are no means by which
the international obligationsirz regard tomandates can be discharged
by the United Naiations.
The Mandate has in any case become infructuous. and mut, in
my opinion,, go. Whether it could be superseded by any other
system within the present Charter is a different matter, and will
be dealt with when 1consider the solution of thepresent problem '."
(Italics added.)
.
(d) In a debate regarding Palestine in the Security Council on .I9
March 1948, the re~resentative of the United States of America
stated:

'C.A.,O.R.. SecondSess.,Sup.No. 11,Vol. 1 (A136.4p. 42.
Ibid.,p.43.
'Ibid. Vol.II (Ah6qIAdd. 1).p. 38.70 SOUTH WEST AFRICA

"The United Nations does not automatically fali heir to the
responsibilities either of the League of Nations or of the Mandatory
Power in res~ect of the Palestine Mandate. The record seems to
us entirely cl& that the United Nations did not Lakeove7the League
of Nations Mandate system '." (Italics added.)
6o.It was only as from the end of 1948 that certain States voiced
any contradiction at al1 to Respondent's above contention regarding
supervisory jnrisdiction in the absence of tmsteeship. This contradic-
tion came from five States: Belgium, Brazil, Cuba, India and Umguay.
The view expressed by the representative of Belgium was that Article
80 of the Charter preserved the benefits of international supervision for
the eople of South West Africa Z.
le rytatiue of Brazii took up the attitude that, inasmuch as
South \ est Africa had been placed under the mandate system of the
League of Nations, it was "under the supervision of thecommunityof
Nations, namely the General Assembly" '.
On behalf of Cuba, the view was put in 1949 that "the rights and
Nations for both organizations representedsame as the international com-
munity"'.
The representative of India contended in 1948 that:

existing rights of the people of South West Africa until a Tmstee-
ship Agreement had been concluded, had to be recognized. One of
these nghts, under the mandate system, had heen the examination,
hy the Permanent Mandates Commission, of annual reports ...
That right could not be extinguished merely because the Permanent
Mandates Commission had ceased to exist 5."
The argument advanced hy the representative of Uruguay in 1948
was that Article 80 of the Charter "safeguarded the rights of indigenous
populations and imposed on the administering authorities the duty of
reporting progress and of communicating to the international wmmu-
nity how they were fulfilling their obligations". The argument then
proceeded on the line that the United Nations had taken the place of
the League of Nations as the "CO-ordinating centre" of the "civiiized
and organized international coliectivity" with the result that it was
"through the organization [United Nations] that the Union of South
Africa should fulfil its obligations towards the international community
and give an acconnt of its administration"
In the cases of the lastmentioned three States, Cuba, India and
Uruguay, these contentions were in conflict'with the statements made,
or attitudes adopted, by them in 1947.
For the eariier statement by the representative of Cuba, see Annex
A. Second Part, page 276. infra.
Attention is also drawn to the report on Palestine, paragraph 59 sup(c).

' S.C., O.R.. Third Ycar. Nos.36-gr. qist Meeting. 19 Mar. 1948. p. 164.
Annex A.SecondPart. p. 282, infra.
' Ibid.. p. 2R5.
' Ibid., pp. 285.286.
' Ibid.. pp. 284-285. COUNTER-MEMORIAL OF SOUTH AFRICA 7I;

Advisory Proceedings, which contained the foilowing:dia in the 19jo

"It is respectfully submitted that the only respect in which the
position has changed [as a result of the dissolution of the League]
is that Article 6 of the Mandate and the first portion of Article 7
of the Mandate have become incapable of being complied with.
In other respects, the rights and obligations of the mandatory
are exactly the same as they were before. The result is that the
mandatory is not obliged to submit an annual report under Article
6 and that it cannot modify the tems of the Mandate at al1because
the procedure by which it could have modified the terms of the
Mandate has ceased to be applicable '."
And, in the case of Umguay, the statement made by its representative
in 1948 runs counter to the contention advanced on its behalf in 1947~
and to its attitude concerning the Mandate for Palestine'.

The Period 1~~0-q6o

61. A portion of Ap licants' Memonals with the same heading as
the above'contains a grief summary of events over the period 1950-
1960..The broad outlines of fact as presented therein are substantiaiiy
correct; but certain statements require comment with a view to proper
perspective.
(a) The importance of the "restrictive nature" of the Ad Hoc Com-
mittee's terms of reference willbe dealt with below in the year-by-
year chronology of events. There was, however, a further important
reason, also reverted to below, for the failure of the negotiations
between Respondent and this Committee. This was the insistence by
the majority of Members in the General AsÇembly that Respondent
should place South West Africa under United Nations tmsteeship
despite Respondent's objections and the Court's Opinion that it was
not obliged to do so.
(b) While the reports of the Committee on South West Afnca have
in fact "annually criticized the Union sharply for the manner in
which the Union administers the tqitory "6, the whether
the cnticism was justified is not canvassed in this part of the
Counter-Memorial7. Respondent on-many occasions protested that
the Committee's findings were based on unreliable information
and were unjuçtified.
(c) The statement that "the Union has refused to CO-operatewith
. the Committee"6 (on South West Africa) is an over-simplification.
posçibly derived from .the Committee's own inter.,eta.ion of the

' InternalionaStotus 01South-West A trica. Pleadi~ieOral Arpbments. Docu-72 SOUTN \%ST AFRlCA

situation. The statement is correct in sa far as it signifies that
Respondent was not prepared to accept su rvision by the Com-
mittee of the administration of South \Et Africa. Failure of
negotiations, however, was again due mainly to the restrictive terms
of reference on which the Committee was to negotiate, as will be
dealt with later
(d) The account of negotiations between Respondent and the Good
OfficesCommittee ' makes no mention of the fact that there was, as
between Respondent and that Committee, agreement as to the
possibility of an approach which merited investigation, but that the
Committee's recommendation in that regard was rejected by the
majority in the General Aesemhly-a matter more fully dealt with
later. Moreover, the words "existing rights of the United Nations ta
supervise the administration of the Mandate"' beg the question
in respect of one of the vital issues requiring negotiation. For
reasons to be dealt witli later, Respondent was unable to acccpt the
1950 Advisory Opinion of the majority of the honourablc Court
with regard to sunervision. on which Ouinion the refercncc to
"existing rights" iç'apparently based.
(e) The statement that "repeated debates and resolutions have failed
to brine about the Union's com~liance with the Mandate" also
involves an assumption consis&ntly disputed by Respondent.
Respondent maintains that it faithfully honours the spirit of the
Mandate in the administration of the Territory (a matter not
canvassed herein ))and that it owes no accountability to the United
Nations in respect thereof, a matter fully dealt with later.

62. Applicants' summary of the Court's three Advisory Opinions aç
set out in the Memorials' does not require comment save that wvith
regard ta the Advisory Opinion of II July 19j0, Respondent desires
to draw attention to the followine-
(a) The following quotation from the Opinion of the majority, namely
that Respondent's obligations under the Mandate-
"represent the very essence of the sacred tmst of civilization.
Their raiso dn'êtrand original obiect remain. Since their fulfilment
did not de end on the eiistencé of the League of Nations, they
could not g e brought to an end merely because this supervisory
organ ceased ta exist. Nor could the right of the population ta have
the Territory administered in accordance with these mles depend
thereon",
was clearly intended ta apply only to the obligations relating to
the administration of the Territory, and not ta the obligations
relating ta the machinery for implementation, Le.,the obligations ta
accept international supervision and to submit reports 5. The last-

'Vide 1, p.50.
VVide para.r.supro.
' Vide 1,pp. 51-54,
' IntcrnntionolSfotuofSouth-West AfricaAduiroryOpinion, I.C.J. Repor1950,
P. '33. COUNTER-MEMOR IAFLSOUTH AFRICA 73

mentioned obligations were stated by the majonty of the Judges
to be "an important part of the mandates system" '.
(b) Applicants' siatemenf that-
"The Court affirmed the Union's international obligations under
Article 22 of the Covenant and under the Mandate, including the
duty to render annual reports and to transmit petitions from in-
habitants of the Territory, and confirmed as well the power of the
United Nations to exercise supervisory functions and to receive
the annual reports and petitions
reflects the majority opinion only. Two Judges (McNair and Read)
dissented, expressing the view that the supervisory powers of
the League had not passed to the United Nations, and that Re-
spondent was not obliged to submit reports and transmit petitions
to the United Nations.
Respondent will not deal here with the reasons advanced by the
Court for its conclusions, but will do so in stating Respondent's legal
contentions in Chapters III to V below.

YEAR-BY-YEAC RHRONOLOGY OF RELEVANE TVENTS:1950-1960

1950
63. When the Fourth Committee considered the Court's Advisory
Opinion of II July 1950 the South African representative stated at
the outset that Respondent's attitude to the Opinion was "a matter
in which his Government would have to define its position at a later
moment" in the light of the debate in, and any resolution which might
eventually emanate from, the General Assembly. He assured the Fourth
Committee that Respondent did not wish to close the door to a friendly
solution of a question which had been in dispute for so long and hoped
that the United Nations would not do so either. He pointed out that
while the Court's Opinion was entitled to the greatest respect, it w~
not automatically binding on the parties concerned, as would be a
judgment.
Furthermore, since the Court had given its Opinion, important facts
had come to light bearing directly on the reasoning and conclusions
of the Court with regard to certain material points. He contended that
if these facts had been placed before the Court it would probably not
have come to the conclusion reached (in the majonty opinion) with
regard to transfer to the United Nations of the League's supervisory
functions.
As to the additional facts which had come to light he dealt at length
with the circuinstances surrounding, and the developments leading up
to, the adoption by the League of its resolution of 18 April 1946, with
special reference to the first Chinese draft resoluti3.
He stated that the additional information had to be carefully weighed
and considered by his Government together with:
(a) the fact that several widely varying interpretations of the Court's
Opinion had been put forward in the Fourth Committee; and

' International Status of South-West Africa, op.136... p.
Vide1, p. 52.
' Vide para41,supra. SOUTH WEST AFRICA
74

(b) the attitude of the United Nations in regard to the international
osition of South West Africa as expressed in any resolution by the
general Assembly.
He concluded his statement as foiiows:
"It would be premature to expect me ta Say or do anything
which could possibly he interpreted as biuding my Govemment in
any way until it has had every opportunity of considering fdy
and carefully the whole problem in al1its aspects '."
With regard to this explanation by Respondent's representative to
the Fourth Committee.Applicants at 1, page 55. quote from a statement
made in response by the representative of China (Mr. Liu) who said,
inter alia,

"The resolution finally adopted by the League did not, it was
true, contain any specific provision for the transfer of supervisory
functions, but neither did it forbid such transfer 2."
The relevance of the fact that transfer was not forbidden in an
enquiry whether in fact there was a transfer, is not understood. In any
event this statement by the representative of China in 1950 strikes a
significant contrat with his attitude in 1948 when he contended as
followsin the Fourth Committee:
"It was true that, as no tmsteeship agreement had been concluded
for South West Africa, the United Nations could not intervene or
exercise its power of supervision in regard tothat Territory '."
64. While it was evident that the majority of Memberç of the United
Nations were prepared to accept the Advisory Opinion, there was a
difference of view in regard to the manner in which the Opinion was
to be implemented. Some Members favoured an immediate decision to
set up an ad hocbody to deal with annual reports and petitions, while
others felt that a hasty decision would prove ineffective, that the
Fourth Committee acting unilaterally had no right to set up and impose
supervisory machineryand that Respondent's CO-operationwas essen-
tial. This resulted in the eventual adoption of a compromise resolution
(419 A (V)) accepting the Court's Advisory Opinion and, inter alia,
establishing an Ad Hoc Committee,

(a) to confer with Respondent on the "procedural measures necessary
for the implementation of the Advisory Opinion"; and
(b) to examine reports and petitions '.
65. Respondent could not support the adoption of this resolution,
and ex lained to the General Assembly that, in its view, the resolution,
inter ala,
(a) took no account of the additional facts referred ta in paragraph
63 above;
(b) established unilaterally, despite Respondent's protests, machinery
forthe examination of reports and petitions;

'Verbatim text. Asummary appears in C.A., O.R., FifSess.. Fourth Comm.,
196th Meeting, 4 Dec. 1950, par52, p. 36+.(Vide also paras. 41-5,p. 362-364)
Vide 1,p. 432.
' Annex A, Second Part, p. 282. infra.: '
' G.A. Resolution 449A (V), 13Dec. 1950, in GA., O.R., FiftSeas.Sup. NO. 20
(AI1775).PP. 55-56. COUNTER-bLEMOR OIALSOUTH AFRICA 75

(c) assigned these supervisory functions to the very body created for
the purpose of conferring with Respondent on the implementation
of tlïe Court's Opinion; and
(d) restricted the terms of reference in a way which held out little
hope of fruitful discussions '.
66. Although resolution 49 A (V) created machinery for negotia-
tion, the General Assembly on the very same date adopted resolution
49 B (V),again urging Respondent to place South West Africa under
the United Nations tmsteeship system.
The inconsistency of on the one hand offering "negotiations" with
a view to amicable settlement of a dispute, while on the other hand
making what in effect amounted to an extreme demand relative to
that dispute, namely United Xations tnisteeship for South West Africa,
was to become a regularly recurring feature in the history of this matter.
67. Applicants' statements that "The Union. however,made it clear
very early that it would not act in accordwith theAdvisory Opinion . .." 2,

and "The Union's rejeclionof the Court'srulings in ils Advisory Op?nion
was.made manifest /rom the outset 3," are incorrect, particularly in so
played in the 1950debates ofthe General Assembly. Indeed, Kespondent

made it clear at the outset that it would be able to define its position
with regard to the Court's Opinion only after careful consideration
had been given to the debates and to any resolutions which might be
adopted. (Vide para. 63 above.)
1951

68. Respondent, despite its opposition to resolution 49 A (V) and
its expressed views regarding the profitahility of the proffered negotia-
tions, agreed to confer with the Ad Hoc Committee on South West
Africa in an effort to arrive at a definite settlement of the South West
Africa question '.
69. In the course of the discussions which ensued, the South African
representative emphasized that the Court's Opinion was advisory and
thu not binding eitber upon the United Nations or upon Respondent.
He explained fully the reasons why Respondent could not accept the
Court's Opinion relating to accountability to the United Nations as a
supervisory authority in succession to the League. Nevertheles, lus
Govemment realized that negotiation would be impossible if it were to
maintain its standpoint rigidly '.
70. Respondent accordingly expressed its preparedness, in deference
to the wishe of the General Assembly, to negotiate a new international
instmment emhodying those obligations of the Mandate which, in the
view of the Court, related directly to the "sacred trust" (Art. z to 5
of theMandate), and, if considered necessary, also an obligation, simi-
lar to that of Article 7 of the Mandate, to submit to the jurisdiction of
the International Court of Justice. Therehy the difference of view as to

' C.A.,OR.. Fifth Sess..Vol. 1y2nd Plenary Meeting, 13 Dec. 1950.p.629.
Vide 1. p51.
Ibid..
' Vidc U.N. Doc.A/AC.qq/SR.z. pp. 2-4
' Vidc U.N. Docs.A/AC.4q/SR.3 and 7.76 SOUTH WEST AFRICA

whether the Mandate had la~sed or not would be rendered a matter
of no further practical imjmrt'ance.
The new international instrument would be concluded with the three
remaining Principal Allied and Associated Powers of the First World
War (France, the United Kingdom and the United States of America)
as principals and not as agents of the United Nations. These three
Powers were historically associated ulth the Mandate, were Permanent
Members of the Security Council of the United Nations and had a re-
cognized position in international affairs '.

71. The Committee felt that Respondent's proposals "did not give
the United Nations a sufficient r~le"~. The South African representa-
tive accordingly indicated that, after further consideration, his Govem-
ment was prepared to accept a compromise whereby the idea of a
fresh agreement with the three Powers should be sanctioned by the
United Nations prior to the negotiation of such an agreement.
This still did not satisfy the Committee, and after further considera-
tion Respondent intimated its willingness to have the actual agreement
submitted to the United Nations for confirmation.
The South African representative further indicated that if the Com-
mittee considered Respondent's proposal as falling outside its terms of
reference, he would be glad ta submit to his Government any sugges-
tion from the Committee indicating how the proposal could be brought
within the Committee's competence '.
72. Despite the concessions offered by Respondent, the Committee
found the proposal unacceptable "because it did not allow for a full
implementation of the advisory opinion" and "could not therefore be
considered as within [its] terms of reference" 4.
The Committee in turn proposed a draft agreement embodying the
terms of the Mandate in a modified form, and providing, interalia,for
new supervisory machiuery under the United Nations

73. Respondent's representative explained to the Committee the
reasons why Respondent could not accept the principle of account-
ability to the United Nations embodied in the Committee's proposal.
He emphasized that it would be virtually impossible to come to any
arrangement involving such accountability without extending the obli-
gations which Respondent had assumed under the Mandate. This was
evident from the broader membership, and the fundamentally different
structure, of the United Nations as compared with the League, of
ta voting procedure, in that the League rule of unanimity did not,apply
in the United Nations. This was of particular significance in view of
the basic ideological differences existing within the United Nations '.

74. In a letter to the Ad Hoc Committee on 20 Septe,mber Iq5I
Respondeiit reiterated the basic elements of the concessions which

' U.N. Doc. A/~gor, in G..O.R., Sidh Sesr., Annexes (Agenda item 38).2-1 1.
Ibid.. para. 25 (d), p. 5.
3 Ibid., para. 25.
' Ibid., paras. 26 an27,pp. 5-6.
' Ibid., para. 27.pp. 5-6.
U.hi. DOC.A/AC.~~/SR.II, p. 7. ÇOUSTER-hlEIIORIhL OF SOUTH AFRlCA 77

it was prepared to make in an effort to achieve a settlement which would
"satisfy the major desires" of the United Nations and of Respondent,
and expressed regret that the Committee hai-l felt that the proposal
would not I>e:lcceptable to the General Assembly. On the other Iiancl,
the Committee's proposal did not provide for certain requiremeiits
considered by Respondeiit to be basically essential. If these were recog-
nized, Respondent would not be unwilling to concede certain basic
requirements of tlie United Sations, such as the principle of inter-
national accountability and provision for United Xations approval
for any change in the international status of the Territory.
Respondent also reiterated the difficulties experienced in thesubmis-

sion of reDorts to tlie United Xations. and uointed out that. while it
\vas not Gepared to submit reports, informaiion on the Territory from
official sources was "alwavs available" '.
75. The Ad Hoc Committee. however. intimated that Kesvondent's
pr6posal was "iiot within its'terms ofreference", and exGessed its
willinaness to continue neaotiations on the brrsis of itsown counter-pro-
posalr. -

76. Respondent remained desirous to seek a mutually satisfactory
solution. Before negotiations could, however. be resumed, the Fourth
Committee on 16 November rgjr, at the Sixth Session of the General
Assembly, granted oral hearings to petitioners on South \Best AIrica3.
This decision was taken despite Kespondent's repeated intimations
that it did not accept accountability to the United Xations, and in
spite of the fact that implementation of the Court's Advisory Opinion,
including the question of petitions, was a matter on which negotiations

were still in progress; this seriously hampered negotiations '.

1952
77. The Sixth Session of the General Assembly on 19 January 1952
adopted resolution 570 A (VI) reconstituting tlieAd Hoc Committee
for the purpose of "conferring" with South Africa "concerning means
of implementing the Advisory Opinion". At the same time, however,
and despite liespondent's protests, the Committee \\,as authorized to
examine reports and petitions with regard to South \%"estAfrica.
The Assembly also reiterated its prerious resolutions pressing, for
South West Africa to be placed under United Nations TnisteeShip5.

78. Respondent had doubts as to the likelihood of fruitful results
flowing from further negotiations with the Ad Hoc Committee. These
doubts were foundecl upon the following considerations, poiuted out t0
the United Nations on various occasions:

(a) The divergence in the views held by Respondent and the majority
in the United Nations. Respondent, while carrying out the spirit of
the "sacred trust" which it had assumed under the Mandate, did

' U.V. Doc Aligor. para.jz.pp. 7-8.
Ibid.p,ara. 33p. 8.
U.N. Doc AlC.41190.inG.A.,O.R.,SixfhScrr.Anliexes [Agendaitem 38).P. 17.
' Vide C.A.. O.H., Sixlh Sesr.Fovrlh Comm., 204th Aleeting, 16 Nov. i951,
PP. 17-19.
' C.A. Reroltllion 5ii(VI), 19Jan. 1952.in C.A..O.I<,Si~fhSes$.Sup. NO. 20
(Al211s).p. 64.78 SOUTH WEST AFRICA

not rewgnize accountability to the United Nations in respect of
its administration of South West Africa, whereas the majority in
the General Assembly held the view that Respondent was obliged
to account to the United Nations and in fact continued to press
for a trusteeship agreement for the Territory.
(b) The manner in which the South West Africa issue had been dealt
with in the United Nations, particularly the acrimony displayed by
some Members in the dehates. marred obiective consideration and
negotiations.
e restrictive nature of the Committee's terms of reference,
which left Little hoDe for a com~romise inasmuch as it reouired
Respondent to accept acc~unta'bilit~ (in acwrdance wit6 the
mai.rity--pinion of 1q..- .s the only basis for ne~otiation.
Respondent was. however, desirous of amving at an amicable
arrangement and was therefore prepared to explore ali avenues. On
being assured by the Ad Hoc Committee in 1952 that its "terms of
reference were such as to allow it to discuss any reasonable proposal",
negotiations were resnmed in September 1952 '.

79. In the circumstanceà Kespondcnt hopcd that itsproposaluf 1951
\vould bc recoiisidcrcd uii ils merits. In re-huhniittinl: tliat propusal the
South African re~resentative contended that amëement hid been
reached in principk xvith regard to the revival 07 the clauses of the
Mandate dealing with the "sacred trust". Moreover, Respondent had
agreed on the fundamental principles which the Committee regarded
as essential, the only exception being the handling of annual reports
and petitions. In this last respect his Government. depending on satis-
factory progress of the negotiâtions. would be prepared to go-somewhat
further: it would make available information on its administration to
those with whom a new instrument wouId be concluded.
While the new instrument would be negotiated with the three Principal
Allied and Associated Powers as principals, its general principles would
have to be approved bythe United Nations, and if foundacceptable, the
United Nations would ascertain whether the three Powers were ~re~ared
to act as the second party3. Before the neiv instrument could comêinto
force the United Nations would have to approve it, thus having a -ouble
opportunity of examining the instrumenf '.
80. The Committee enquired whether Respondent would make avail-
able annual reports as complete as those furnished to the League. The
South African represeutative replied that under its proposal, his Govem-
ment would supply annualiy to the three Powers information on South
West Africa as complete as that furnished to the League of Xations on
the basis of the Permanent Mandates Commission questionnaire.
Upon a further enquiry from the Committee, Whether Respondent
would recognize the principle of international supervision uiider a pro-

p.'2..N. Doc.A/zzG~,para. 7,inG.A.,O.R., EighlhSess.. Annexes (Agendaitem36),
Vide para.70 etse*..supra.
' The repres~ntativ~ofthe United States of hmeiica-the only one of the three
Polvers represented on the.4d Hoc Cornmittee-had indicated his Cnvcrnmcnt's
willingiiesinprinciplto actas amemlwr of the second party if the United Nations
ag'eed. Vide U.N. Doc. A/AC.qglSR.4. p. 3.
Vide U.I\'Doc. A1226r. paras. rr-13. pp. 2-3. COUNTER-MEMOR IF SOUTH AFRlCA 79

cedwe as nearly as possible analogous to that under the League, the
representative stated that Respondent's attitude would depend on the
progress of the negotiations on al1the other points.
He therefore again pressed the Committee for its views on the merits
of Respondent's proposal, stating that to facilitate agreement, Respon-
dent had made considerable concessions and had indicated its readiness,
under certain conditions, to make further proposals '.
81. Whiie the Committee expressed its a preciation of the efforts
made by Respondent and noted that Respon ent had extended its 1951
proposal, the Committee insisted on accountability to and supervision
by the United Nations bec;iuse it felt that its terms of reference so
required ?.

82. Despite the fact that the negotiations were not conclusive, by
the end of 1952 the Committee was able to record that there was amee- -
ment in priiGple on the following points:
(a) That a new instrument, replacing the former Mandate for South
West Africa, should be concluded;
(b) That the uew instmment should revive the "sacred trust" con-
tained in Articles 2 to 5 of the Mandate, with minor modifications
whichwould not affectin any way the principle of the "sacred trust";
(c) That, under certain conditions, Respondent would make available
information on its administration of South West Africa;
(d) That such information would be as full as that once supplied
under the mandates system; and
(e) That there should he some form of supervision of the administra-
tion of South West Africa '.
83. The points of difference, as also recorded by the Committee,
were to the following effect:

(a) How supervision of the administration of South West Africa
should be carried out:
'flii: Coniniittee iiisist,:(l on I:nite<l S\'Rtionjsupervision"cvcn
thoiigli it =lioiildiiot ~scr.~dtliat \\.hich s plicd under thc inaiiclatc-.
s\.;triii". 011thc uther h;l~ll~R~;~orid~~nttatl cornL.to the conclusion
that any obligation which wouid cany with it supervision by the
United Nations, would be more onerous and would go beyond
the obligations undertaken under the mandates system.
(b) The second p. .y . .the proposed instrument:
Itt*jpondent coiild iiot coiitciiipl:~teconcluding an agreement dircctly
\r.ith tlie L'iiitt:tl Nations. :ilthougli th,: ajirrernïntivhicli it \vs%
j>rcpart'11IO iiv~otiatc an~lCO~CIII<\Iv o.illd hâvc to be ayl)rui.e(lh!.
tlie Ci11ti.dSstions 011 the uther hniid th< Cornrnittee considered that
the apreenit:nt shoiil(l I>econclii~leil\\?th the IJiiited Sarions or\i.itli
an a@ncy appointed by it '.

84. From the above it is clear that, far from Respondent fmstratiug
the Ad Hoc Committee's efforts at negotiation-as is allegcd at1, page
58-the substantial masure of agreement which had by the end of
1g5zactually been reached betweeu Kespondent and the Committee
U.N. Doc. Aizz6r.paras. 1jand iG, pp. 3-1.
lbid.para. 20.p. 4.
' lbid., para.23p. j.
' U.N. Doc. A/zz61,parn. 24,p. j.80 SOUTH IT'EST .+FRICA

was due to the fact that Respondent \vas prepared to make proposals
and concessions in regard thereto. Whatever frustration there was,
resulted, in fact, from the Committee's restrictive terms of reference.

1953

65. The inconclusive negotiations of 1952 were resumed in June
1953 when the South African representative again requested that the
Cornmittee, as awhole,state its viewswithregard to theessential elements
of Respondent's proposal.
The Committee intimated, that inasmucli as Respondent wished the
three Powers to act as principals and not as agents of the United
Nations, the proposal did not provide means for implementing the
Advisory Opinion, and that the Committee was therefore unable to
accept the proposa1 as a bais for detailed discussion.
86. The South African representative referred again to Respondent's

view that it would be weU-nigh impossible to devise any arrangement
whereby Respondent would be accountable to the United Xations for
its administration of South West Africa without extending the degree
of supervision and, therefore, Respondent's obligations. And he en-
quired how the Cornmittee proposed to cope with the difficulties in this
regard, especially the absence of the unanimity rule in the United
Nations voting procedure.
The Comrnittee was, however, not prepared to enter into that enquiry
until Kespondent had accepted the priiiciple of United Nations super-
vision. This Kespondent could not do without the assurance that its
obligations would not be extended. Iiespondent reiteratcd its willing-
ness to consider proposals which would not involve such extension.
The Cornmittee, however, did not attempt to show how United Nations
supervision could be devised \vithout extending Kespondent's obliga-
tions '.
The negotiations conseqiiently did not lead to positive results.

87. At its Eighth Session the General Assembly, on 28 Xovember
1953, rejected Iiespondent's proposal to the Ad Hoc Committee and
established the Committee on South West Africa with functions as
set out in resolution 749 A (VIII) 2.
These functions in essence amounted to-
(a) exercising supervision over the admiiiistration of the Territory, and,

(b) negotiating with Respondent for the full implementation of the
Advisorv .pin.on.
'l'tiSuiitli ,\fricnii répr~seiit;iti\.,:t-xplaiiiecltu the I:oiirtli (:uiiimiitcc
th:it ltt:>p<>ncléc ituld not support tliis rt:svlutioiia; itreiliiircclI<i.spoii-
dent to stibmit to Lnited S:itioiis siii>er\isiuii ris ;Lb;&iî for CO-ciner;i-
tion with the Committee, left the ~ohrnittee no scope for negotiation
beyond that basis, and combined a supervisory function with that
of so-called "negotiations" 3.

' U.N. Doc AIz475, paras. 8-15, in G.A..O.R.. Eiglilh Sess., Anttexcr (Agenda
it'mC.A. Hesolulio>r 749 A (VIII) 28 Sov. 1953.in C.A., O.R.. Eighlh Sess.Sup.
NO. 17 (A/2630).pp. 26-27. (Vide also 1,pp. 59-61.]
' G.A., O.H. ,ciqhth Sess., Faurth Comm., 3h3rdMeetiiig,12Sov. 1953. para. 32,
p. 306. COUNTER-I~IEMOR OIASOUTH AFRICA 81

In the circumstances, those who supported the adoption of resolu-
tion 749 A (VIII) were aware that no CO-operationwith such a com-
mittee could be expected from Respondent; and the must therefore,
have realized that the Committee's supervision wouldibe on;-sided and
thus defective.

88. Furthemore, the proffered "negotiations" were again coupled
with a resolution urging the conclusion of a United Nations tmsteeship
agreement '.

'954
89. When the Committee on South West Afriw invited Respondent
to confer with it, Respondent repiied that it was-
"doubtful whether there is any hope that new negotiations within
the scope of your Committee's terms of reference will lead to any
positive results".

This reply was communicated to 'the Chaiman of the Committee
in a letter dated 25 March 1954 ,herein Respondent's reasons for its
view were set forth in fullZ. The letter is quoted at 1, pages 62 to 64.
The Committee coufirmed Respondent's douhts by replying that it
could not "enter into discussion of proposais which are not designed
to implement fully the Advisory Opinion" '.
Inasmuch as this reply signihed that negotiations could only take
place on the basis of acceptance by Respondent of United Nations
supervision, Respondent had no alternative but to decline the Com-
mittee's invitation.

go. As regards the supervisory functions contemplated for the Com-
mittee on South West Africa, resolution 749 A (VIII) directed that the
practices and procedures which had applied to supervision of Mandates
by the organs of the League of Nations should be observed as far as
possible '.
It was, however, inevitable that supervision in pursuance of the said
resolution would differ substantially from that which had applied under
the League of Nations, particularly in the following respects:
(a) Unlike the Permanent Mandates Commission, which was "a com-
mission of experts.. . of high standing and independent of Govern-
ment^"^, the Committee on South West Africa was composed of
political representatives of member States, the selection of.individ-
uals being left to the discretion of the States elected to serve O?
the Committee. The blembers of the Committee, in exercising their
supervisory functions, thus did not stand apart from the political
views of their govemments.
(b) In the League the ultimate supervisory body was the Council,
the voting procedure of which was suhject to the unanimi<y rule.
The corresponding supervisory organ in the United Nations, as

' C.A.,O.R., .Vinth Sess.. StNo. 14 (A/?GGG).Annex 1 (c). pp. 6-8. 27-28.
Ibid.. Annex1 (d), pp. 7-8.
' Vide sub-paras.(a),(b),(c) and(d)of para. izof C.A. R~solution749 A (VIII).
J Voting Procedureon Qz'estions relatiftg to Reports and Petilio*ls concerning th8
TerritoryofSoz~thTVastAfriha, Advisory Opiwion, I.C.J. Repor1955,p. 95. Vide
alsopara.20. supra82 SOUTH \VEST AFRlCA

contemplated by resolution 749 A (VIII), was the General Assembly,
in the votingprocedure of which the unanimity rule did not apply-
Article18 of the Charter providing only for decisions by a majority,
or in the case of certain matters, by a two-thirds majority.

The combined effect of the differences mentioned in (a) and (b)
above would inevitably render supervision in pursuance of'resolution
749A (VIII) more onerous for Respondent than that which had applied
under the League.
gr. When the Committee on South West Africa requested Respon-
dent to submit reports1, this request was declined for reasons fully
stated in Respondent's letter of25 March 19j4~ w,hich is quoted at
1, pages 62 to 64. Respondent's osition in this regard was further
explained to the General ~ssembf~ at its Hinth Session, where the
South African representative pointed out that the Committee had been
established despite Respondent's objections and tbat Respondent was
then invited to CO-operate on a bais unilaterally determined by a
majority in the General Assembly. His Government could obviously
not accept an arrangement which had beeii decided on against its wishes
and which failed to take into account its essential requirements. It \vas,
therefore, unable to recognize the Committee or the legitimacy of the
report which the Committee had drawn up j.
With regard to petitions, Respondent's attitude was also clearly
stated in the letter ozj Afarch 1954 ;nd, in fact, Respondent declined
to participate in any United Nations proceedings concerning petitions.

92. In the absence of reports from Respondent. the Committee com-
piled its own report, relying ou information from various officia1and
unofficial sources. This report contained many inaccuracies and omis-
sions ofa serious nature, as well as erroneous conclusions.
The aiiegations contained in the extracts from the report, quoted
in Applicants' Memorials 4,wiUnot be dealt with here
Respondent did reply, in the Fourth Committee, to certain allega-
tions in order to indicate that some of the information on which the
report was based was unreliable and that the report reflected serious
miswnceptions as to conditions in South West Africa6.
93.In 1954 the General Assembly once more adopted a resolution
urging Respondent to place South West Africa under United Nations
Trusteeship '.
94. The statement in the Memorials alleged to have been made by

Dr. Malan (then South African Prime Minister) on 24 August 1954
was in fact issued by a political party in South West Africa-the
National Party for South West Africa. It was not made by the Prime
Minister, although, as National Leader of the said party, he had ap

Zbid.. Anne1 (c),pp. 6-7.ex 1(a),p.6.
G.A., O.K.. NivSess..Fourth Comm.,407th Meeting,ij Oct. ,954para.36,
D.66.
* 1...D. .4-65
Vide para.1.supra.
Videe.g.G.A., O.H.Niiafb SsssFourfh Comm.,,qo7th'~eetin~. pp. 67-70.
' C.A.Resolutio852 (IX1,23 Nov. 1954.inG.A.. O.R., NinthSess., Sup. 21. COUNTER-MEMORIAL OF SOUTH AFRICA 83

proved thereof. The statement answered a claim of an opposition party
to the effect that the Territory had acquired a status independent of
South Africa.

95. The General Assembly in 1954 also ado ted resolution 904 (IX),
in which it asked the International Court oPJustice for an advisory
opinion as to whether Special Rule F was a correct interpretation of
the Court's 1950 Advisory Opinion '.This mle concerned voting proce-
dure in the General Assembly on questions relating to reports and
petitions regarding South West Africa. Respondent did not support
this request for an advisory opinion for the reason that it had not
accepted the 1950 Opinion, especially with regard to supervisory func-

tions on thepart of the United Nations. As Respondent had throughout
clenied that the General Assembly had any supervisory powers or func-
tions in respect of the administration of South West Africa, Respon-
dent was not concerned with the voting procedure adopted by the General
iissembly in the exercise of the supervisory powers it had assumed in
respect of the Territory and, consequently, Respondent did not partici-
pate in the proceedings before the Court in 1955 2.
As the correctness or otberwise of the 1955 Advisory Opinion does
riot arise for decision in the present proceedings, Respondent refrains
from commenting on the reasoning of the Court or its conclusions in
that Opinion.

1955
96. In 1955 the Committee on South West Africa again invited
liespondent-

(a) to confer with it on the implementation of the Court's 1950Opinion;
and
(b) to assist the Committee in its supervisory task; in particular to
send a report 3.
In response, Respondent referred to its letter of 25 March 1954' and
stated that as there had heen no material change in the position out-
lined therein, Respondent could not see that negotiations on the basis

of the Committee's restrictive terms of reference would lead to positive
results
The Committee, in its reply of IO June 1955, stated that it could
only conclude that Respondent "is unwilling even to enter into negotia-
tions in order to implement fully the Advisory Opinion6".
While this was a correct conclusion, so far as it went, Respondent
was not unwilling to negotiate with the United Nations on a basis
which did not as a prerequisite place impossible demands on Respon-
dent-an attitude fully explained to the Eourth Committee by Respon-
dent on 31 October 1955 7.
-

' G.A. Resoluliongo4(IX), 23 Sov. 1954,in U.N. Doc. Alz8go.pp. 55-56,
VideC.A., O.R.,Tenth Sess.FourlhComm., 4.~st Meeting, 31Oct. 1955,para.9.
p.130.
' C.A.,O.K. ,enthScss.,Sup. No. 12 (A/z913) ,nneu 1 (a), p.6.
' Vide para.89,supra.
UN. Dac. A/2913.Annex 1 (c)p. 7.
Ibid.A,nnex 1 (d),p. 7.
' Vide C.A., O.R., Tenth SesrFourlh Comm., q91çt Meeting,pp.134-136.84 SOLiI'HWEST AFRICA

97. The 1955 report of the Committee (referred to at 1,page 69).
suffered from the same defects and short-comings as that of 1954 The
South African representative, however, did not-

"attempt to explain where the Committee had erred in its con-
clusions, since the experience of the previons year had shown that
to do so would produce no fruitful result. Nor would he comment
on the inaccuracies and even nntmths contained in the petitions
considered bv the South West Africa Committee. [The ~revious
year,] witlioui prejiirliic ro IiisGo\.eriiiii~iit'sitaiirll>uii;toiiI;ctitions,
hc litid eiidcn\,i~urcilto arnusc rlie Fuiirth Corniiiirtct-torlic 'criou,
iiii~~licaiiniinvolvid in rlie ;i<lul>tioiif tlic ~c~uliitionon ycritioiij
sug:eit~,d by rhr Soutli \\'ï,t ;\fric;i Coiiiiiiittcv. )li~r:tr~ii~c!~~t,
ho\r.cvcr, had iior bçeii discuii~~lar .,II: tlic ~lr,ift r~~olutioni had
simply been voted on without any examination of their contents
and referred to the General Assembly '."
The aiiegations contained in the extract from the report, quoted at
1- A ue 60,.are not dealt with herez.
98. In regard to the admission of oral hearings to petitioners on
South West Africa, Respondent's views were stated as follows:

"In the first place, the Union of South Africa did not recognize
the cornpetence of the United Nations to consider petitions, whether
written or oral. In the second place, the system established by the
Charter made no provision for oral petitions except in the case of
Trust Territones. Lastly, there had nndoubtedly been no provision
for hearings in the procedure alplied by the League of Nations,
and the Permanent Mandates ommission in particular had not
granted any hearings properly so-called J."
Therewas,in the initial stages of the discussions at the Ninth Session
of the General Assembly, a fairly general view in the Fourth Committee
that to grant oral hearings to petitioners would not be in accordance
with the procedure of the former mandate system and therefore not
admissible in the Cornmittee on South West Africa.
A draft resolution to this effect was, however, withdrawn and, in-
stead, the Court was requested for an advisory opinion as to whether
it would be consistent with the Court's 1950 Opinion for the Committee
on South West Africa to grant oral hearings to petitioners '.
In view of Respondent's attitude regarding the 1950Advisory O inion,

and asto accountabilitv to the United Nations. Remondent &d not
sup ort the *equest fo; an advisory opinion on theAadmissihility. of
orarhearincs, inasmuch as the request \vas confined to an interpretation
of the 1950-0~inion.
99. During the Tenth Session of the General Assembly, a further
resolution was adopted urging Respondent to place South West Africa
nnder United Nations Trusteeship

' ' C.A., O.R., Tenth Sess.O$. cil.p.ara.48,p.135.
Vide para. I,supra.
C.A.. O.R., Tenth Sess.. FourtComm., 500thMeeting, 8 Nov. 1955, para. 42.
p.182.
' G.A. Rcsolulion 942 (X), 3 Dec.1955, inC.A., O.R., Tenth Sess., Su$. No. 19
(Al3116) p..24.
' G.A. Resolution 940(X). j Dec. 1955,inU.N. Doc. A/31r6, p. 23. COUNTER-MEMOR IFLSOUTH AFRICA 85

1956
IOO. In reply to a further invitation to Respondent by the Com-
inittee on South West Africa, to negotiate and to submit reports,
Respondent again referred to its eariier replies in 1gg4,and 1955 (vide
paras. 89 and 96, supra) and stated, inter alia, "as there has in the
xneantime been no material change in the position outlined in my
11reviouscommunications theattitude of the Union Govemment remains
iinchanged" '.
101. Applicants quote extensively, at 1, pages 60-61. from the report
of the Committce on South West Africa for the year 1956. While
denying that it failed in any way to observe the spirit of the Mandate,
Respondent will not deal here with the allegations contained in the
report '.The same applies to the extracts from petitions contained in
Chapter VI of the Memorials and referred to at the top of I! page 73
thereof.
102. For a proper understanding of the extract from the statement
of the South African Prime Minister which is quoted at 1,page 72, it
should be read in the fulier context given hereafter, namely:
"The hon. Senator Cowley suggested that in order to avoid
troubles in future in sn far as South West Africa is concerned, we
should forthwith proceed to annex South West Africa ...
May 1 say to him that the attitude of Our Government and of
the previous government, the Smuts Government, was that as a
result of the disappearance of the old League of Nations both the
Smuts Govcrnment and the present Government have taken up
the attitude that there is no other body that has anything to say
in so far as South West Africa is concerned except South Africa
itself and that therefore it is well within our power and fuliy within
our power to incorporate South West Africa as part of the Union.
Up to now we have declared unto the world that legally and other-
wise that is the position, but that in the meantime we are prepared,
although we do not for one moment recognize the rights of the
United Nations Organization, even should we one day incorporate
South West Africa. to govem South West Africa in the spirit of the
old mandate. So. whether we will proceed at a later stage to carry
out and put into effect what we regard aç our rights over which
nobody has anything to Say, that will depend on how circumstances
develop in the future '."
This matter is again raised at 1,page 186, and is deait with fuliy
elsewhere in the Counter-Memorial.
103. With regard to the extracts from the 1956 Advisory Opinion,
which are quoted at 1, page 72, Respondent refers to paragraph 98
above and will not deal with the reasons advanced by the Court for
its conclusion.

r957
104. At the 11th Session of the General Assembly an attempt W.
made by some delegations in the Fourth Cornmittee to find a new bas

' G.A.,O.R.,EIcvenlhScsr.Sup.No. 12(A/3151). Annex 1(b)p.q.
Vide para.i.supra.
' U. of S.A.. PnrDcb.,SenateVol. III (1956). Cols.3631-3632.66 SOUTH WEST AFRICA

for negotiations; but as this attempt did not result in a concrete pro-
posai, resolution 1059 (XI) was adopted, requesting the Secretary-
General "ta explore ways and means of solving satisfactorily the ques-

tion of South West Africa" '.
At the same time, the Liberian representative introduced the usual
resolution urging the lacing of SouthWest Africa under United Nations
trusteesh+eventuah adopted by the General Assembly as resolution
1055 (XI) '.
10s. Also at that session a further steD was taken in an attem~t to

-
question:

"What legal action is O en ta the organs of the United Nations,
or to the Members of the 8nited Nations, or to the former Members
of the League of Nations, acting either individually or jointly, ta
ensure that the Union of South Africa fulfilsthe obligations assumed
by it under the Mandate, pending the placing of the Territory of
South West Africa under the International Trusteeship System?
In Respondent's view this task could hardly be consonant with the
functions of negotiation and supervision already entrusted ta the Com-
mittee.

106. At the 12th Session of the General Assembly, in October 1957,
a number of delegations appealed for a new approach on the South
West Africa question aimed at the resumption of negotiations between
South Africa and the United Nations. This culminated in the estab-
lishment of the Good OfficesCommittee (United States, United King-
dom and Brazil) to "discuss with the Government of the Union of
South Africa a basis for an agreement which would continue to accord
to the Territory of South West Africa an international status" (resolu-
tion 1143 (XII)) 4.
107. The wider terms of reference of this Committee extended the

possibility of fruitful negotiations. The prospective negotiations were,
however, greatly jeopardized by the concurrent adoption of other reso-
lutions sponsored, interalia, by the Applicants. These included a further
resolution calling for United Nations tmsteeship forSouthWest Africa
and a resolution calling for further study of legal action on the South
West Africa question 6.
The inherent conflict between the act of "good offices" and the adop
tion of these and other resolutions were pointed out by a number of
delegations, but attempts ta suspend action on them failed.
The attitude of Liberia is illustrated hy the fact that, although sup-
porting the establishment of the Good OfficesCommittee, the Liberian

' C.A. Resolution 10% (YI). 26 Reb. 1957, in G.A.. O.R., ElcuewthSass., SIL~.
No. 17 iAI3572). P.30.
' Of 26 Feb. 195:. in U.N. Doc. A/3572, pp. 28-29.
%.A. Resolution 1060 (XI),para. I.26 Feb. 1957. in U.N. Doc. b.13572,p. 30.
* C.A. Her<ilution"43 (XII),25 Oct 1957, in G.A.,OR., Twelfth Sess.,Su*.
No' C.A.AResoliuti3n1141 (XII), 25 Oct. 1957,in U.N. Doc. Ai3805, pp. ?q-25
' C.A. Resolution 1142 (XII), 25 Oct. 1957,in UN. Dos. Ai3805, p. 25. COUNTER-MEMOR OFALSOUTH AFRICA 87

representative nevertheless "urged the members of the Committee to
consider the possibility of compulsory jurisdiction of the Court" '.
The Ethiopian representative sponsored the resolution on legal action
and did not support the resolution establishing the Good OfficesCom-
mittee.
108. Respondent nevertheless, in pursuance of its desire to arrive at
an amicable arrangement, accepted the invitation of the Good Offices
Corninittee to participate in discussions with it. The negotiations with
the Good Offices Committee took place in 1958 and will be dealt with
below under that year.
109. Regarding the contents of the report of the Committee on

SouthWest Africa, referred to at 1, pages 73 and 74, and the statement
of the representative of Liberia quoted at page 75, Respondent, while
denying any violation on its part of the spirit of the Mandate, will for
the reasons previously stated not here deal with the factual questions
involved therein 2.

1958
110. In March 1958, the Good Offices Committee invited Respon-
dent to enter into discussions with it in terms of resolution 1143 (XII).
Respondent indicated that, while it could not reconcile the 1957 resolu-
tions relating to legal action and urging a trusteeship agreement with
the act of "good offices", it was nevertheless im ressed by the presence
of a more conciiiatory spirit, and invited the lood Offices Committee
to come to South Africa for discussions. This the Committee did, and
at the conclusion of the discussions in South Africa, the Members of
the Committee were invited by Respondent to visit South West Africa
in their private capacities-which two of the Members did. In the re-
cord of the discussions the Good OfficesCommittee paid tribute to the
"spirit of frankness, friendliness and desire to find a mutually acceptable
basis for agreement which animated the [South African] Government's
participation in the discussions" 4.

III. In the discussions Respondent expressed its preparedness to
enter into an agreement concerning South West Africa which would
specify that the Territory possessed an "international character", and
that this character could be modified only with the conse?t of both
parties to the agreement-the agreement to contain provisions along
the lines of Articles z to 5 of the Mandate, as well as the obligation
to provide information on the administration of the Temtory.
Respondent was, however, for the reasons already stated, not pre-
pared to accept the United Nations as the second party to such an
agreement. The Good Offices Committee, on the other band, felt itself
precluded from considering any party other than the United Nations as
the second party to an agreement

' C.A.,O.R., Tmelfth Sess.. Fourth Comm..hggth Meeting,2 Oct. 1937,para. 14.
P. 3Vide para. 1,supra.
' G.A. Resoiulions1141 (XII) and 1142 (XII).
' U.N. Doc. Ai3goo. in C.A., O.R., Thivteenfh Sess., Annerer (Agenda ite391,
para. 10.p.3.
1J.N. Doc.AI3goo.88 SOUTH WEST AFRICA

112. After discussing other possibilities the Good OfficesCommittee
mentioned, inter dia,"a suggestion that the partitioning ofthe Territory
might provide the basis for a solution" l.Respondent intimated that it

would be prepared to investigate the practicability ofpartitioning as en-
visaged and, if found feasible, Respondent would submit proposals to
the United Nations.
In itçreport to the General Assembly, the Good Offices Committee
exuressed:
"the o~inion that some form of partition under which a uart of the
l'errito'r!. \vuiilJ bç pl~ceiiiiil<a;truit<:i.;liip ~~~çcrncirwitlr tlic
Ciiitc~lSalions and ~11~remaiiidcr \\.u111b1c anncxed to rlie L.nl011.
might provide a basis for an agreement";
and
"the hope that the General Assembly will therefore encourage the

Government of the Union of South Africa to carry out an investiga-
tion of the practicability of partition, on the understanding that
if the investigation proves this approach to be practicable it will
be prepared to submit to the United Nations proposals for the
partitioning of the Territory" 2.
Respondent stressed, to the Good OfficesComrnittee and the General
Assembly at its 13th Session, that the envisagea investigation would
have to be directed, inter alia, at ascertaining the view of al1the inhab-
itants 3.And Respondent explained that its willingness to contemplate,
in this context, the United Nations as the second party to an agree-
ment wasdue to Respondent's desire to find a compromise, and the fact
that it was inherent in the suggestion that the area which would be
laced under United Nations Trusteeship, would probably contain
gantu peoples only, thus eliminating the major dificulties which had
prevented Respondent in the past from accepting United Nations
accountability '.

113. When the report of the Good offices Committee came before
the Fourth Committee at the 13th Session of the General Assembly,
Respondent appealed for discussion thereof separately from the other
aspects such as suggested legal action and the report of the Committee
on South West Africa, so as to avoid acrimonious debate which would
not be conducive to constructive negotiation. Themajority in the Fourth
Committee, including both Applicants, however opposed a separate dis-
cussion, and moreover acceded to a request from petitioners for oral
hearings specifically on the subject. of the negotiations, despite the
protests of Respondent and others.
It was in such circumstances that the South African represeutative
stated:
"Even before the vote it had been apparent from the procedural
debate that a numher of delegations had come to the Assembly
determined to wreck the work of the Good OfficesCommittee. That
course of events confirmed his Government's contention that the

U.N. Doc. A/3900,para. 47,p.8.
Ihid., para.52(6)and (7) .. IO.
G.A.. O.R. ,hirteenthSesa., FourtComm.,745th Meeting, zg Sep. 1958. Paras.
20-23.p.15.
' UN. Doc. A/?900.para. 50, p. 8. COUNTER-MEMORIAL OF SOUTH APRICA 89

forum of the United Nations was being used for the purpose of
waging ropaganda and ideological warfare against a member
State. TE Un^ion Government had not expected those develop-
ments when it had ab~eedto enter into discussions with the Good
Offices Committee; on the contrary it had expected that its pro-
posais would be considered seriously and without prejudice'."
114. A resolution was adopted (resolution 1243 (XIII)) rejecting the
Good Offices Committee's suggestion that the partition idea be in-
vestigated and requesting it to renew discussions with Respondent to

find a basis for an agreement which would continue to accord to "South
West Africa as a wholean international status and which would be in
conformity with the purposes and principles of the United Nations",
bearing "in mind the discussions at the 13th Session of the General
Assembly" 2. (Italics added.)
1x5. Again respondent refrains from dealing here with the extracts
from the report of the Committee on South West Africa referred to at
1, pages 65 and 66 3.
116. At the same Session, the General Assembly adopted a nsolu-
tion, which had by now become standard, calling for SouthWest Africa
to be placed under United Nations Trusteeship '.

1959

117. In its reply to an invitation by the Good OfficesCommittee to
renew discussions, Respondent referred to the unfortunate develop
ments at the 13th Sessionof the General Assemblywhich,in Respondent's
view, showed that the essential elements of conciliation and goodwill
on the part of the majority of Members in the General Assembly were
absent. Respondent was nevertheless still prepared to act in accordance
with the spirit which animated the resolution establishing the Good
OfficesCommittee, and to collaborate with the Committee on the basis
of the terms of reference contained in that resolution. It was difficult to
see, however, what useful purpose could be served by renewing, under
the Committee's new and more restricted terms of reference, the dis-
cussions which had been initiated in the previous year in such com-
pletely different circumstances 5.
When. however, the Good Offices Committee6replied that its terms
of reference were "not essentially different from those under the 195.7
resolution"'. Respondent indicated that, while it did not agree with this
interpretation, it would meet with the Committee8.

118. The ensuing discussions showed. however, that the Good Offices
Committee felt itself bound to consider only proposais which would

' G.A.. OR., ThirternlSers.,Fourlh Comm., 747thMeeting, 30 Sep.1953.para.
27.P. 25.
G.A. Resolution,243(XIII),30 Oct. 1958,in C.A., OR.. Thirtccnlh Sesr., SuP.
Nu. 18 (AI4ogo). p30.
Vide para.1,supra.
G.A. Rcrolution1246(XIII),30 Oct. 1958,in.U.N. Doc.A/qoqo, p.31.
' VideU.N. Doc. A/4224, Annex 11, in G.A., O.H., Fourleenth S~sr., Annsxes
(AgeIn its lettof 19 Junp,959.
' U.iN.Doc. A14zz.1. Annex11l.p. 5.
Ibid.Annex IV. p. 5. SOUTH WEST AFRICA
90

involve acceptance by Respondent of accountability to the United
Nations in respect of the Territory as a whole,and it proposed a for-
mula in the following terms:
"It is agreed that further talks might be concentrated on the
negotiation of some form of agreement to which the United Nations
must be a party for the supervision of the administration of South
West Africa in a manner which would not impose pater responsi-
bilities on the Union Government or impair the rights enjoyed
by it under the Mandate '."
Respondent could not accept this formula because of its conviction
that it would be impossible to devise, within the framework of account-
ability to the United Nations, a procedure which would not impose on
Respondent obligations greater than those which had existed under the
League.
In an effort to meet the view of the Good OfficesCommittee, Respond-
ent in turn proposed the following formula as a basis for further dis-
cussion:

"It is agreed that further talks with the Union Government
should be concentrated on negotiation with the United Nations,
through its Good Offices Committee, of some form of settlement
regarding South West Africa, which would not impose greater
(or more onerous) responsibilities on the Union Government or
impair any of the rights conferred upon it by the Mandate in 1920,
it being understood that such discussions will be without prejudice
to the juridical position taken up by the Union in the past 2."
The Good OfficesCommittee felt that this proposal did not improve
the position, and reported to the General Assembly that "it has not
succeeded in finding a bais for an agreement rrrrderits lerms of rejer-
ence" 3.(Italics added.)
Thus negotiations were once more frustrated by the restrictive terms
of reference of the negotiating agency.
119. When the report of the Good OfficesCornmittee4 was discussed
at the 14th Session of the General Assembly, the South African repre:
sentative expressed his Government's "real regret" that it had not been

possible to find a basis for agreement, and informed the Fourth Com-
mittee that:
(a) The South African delegation would at the next session, as
it had done at the 14th Session, again participate in the discussion
of the report of the Committee on South West Africa.
(b) The South African Government would make available to the
United Nations blue books (officialreports) and other reports issued
bythe South West Africa Administration, Hansards (Parliamentary
Proceedings) of both the South African Parliament and the Legis-
lative Assembly of South West Africa; and other documents con-
cerning the administration of the Territory which are required,to
be laid before the South African Parliament and the Legislative
Assemblv.

' U.N. Doc. Ai4224. Annex IV, para.10, p. 3
Ibid.Anncx III. para.14,p.3.
Ibid.paru. r6.p.4.
' U.N. Doc. A1422q. COUNTER-MEMORIAL OF SOUTH AFRICA gr

(c) The South Afriwn Government remained ready to enter into
discussions with an appropriate United Xations ad hc body that
might be appointed after prior consultation with the South African
Government and which would have a full opportunity to approach
itstask constructively, providing for fullest discussion of al1possi-
bilitie'.

In giving these undertakings the South African representative empha-
sized that Respondent could only carry them out within a framework
of CO-operationand he espressed the hope that further developments
would not force Respondent to re-assess its attitude '.
120. The atmosphere was unfortunately marred by subsequent devel-
opments including the following:

(a) Resolution 1360 (XIV) 2 (sponsored, inter nlia, by Ethiopia) was
adopted which, although apparently designed to create machinery
for negotiation, contained paragraphs condemnatory of Respondent.
On the "negotiation" aspect Kespondent was invited to-
"... enter into negotiations with the United Xations through the
Committee on South West Africa, which is authorized under its
terms of reference to continue negotiations with the Union, or
through any other committee which the General Assembly may
appoint, with a view to placing the Mandated Territory under the
International Trusteeship Syçtem";
and requested to-

"... formulate forthe consideration of the General Assernbly. at its
fifteenth session,proposals which willenable the nfandated Territory
of South West Africa to be administered in accordance with.the
principles and purposes of the Mandate, the supervisory functions
being esercised by the United Xations according to the terms and
intent ofthe Charter '".
The South African re~resentative ~ointed out to the Committee
that Hespondent could h;rdl!. he~~sp~cic< tulent, r iiito iicgotiatiuiis
\rthen tlic rcsolutioii also conr;iiiir.dparagrltplis cciisuring tlit: Suiitli
.Afric:liiGu\~~~riinieiit.:urtlicrniore the rcrm; of refereiiceI:tic(loiin
for the negotiations implied only trusteeship. He continued,

"... the Committee was well aware of the Union's attitude towards
a possible trusteeshipagreement; even the Court's opinion. adopted
by the General Assembly, indicated that the Union was not obhged
to enter into a trusteéship agreement. There was therefore. no
question of the Union considering a trusteeship agreement. As
operative paragraph 3 envisaged su ervision according to the terms
and principles of the Charter, it alo aimed at supervision by ,the
Trusteeship Council. Moreover, the terms of reference of the Untted
Nations body which was to be eotrusted with those negotiations

' C.A.. O.R., Fourlrsnfh Sess., Fourfh Camm., 924th hleeting. 26 Oct. 1959.
para. 2,p. 221.
GA. Rcsoltrfion1360 (XIV). 17 Nov. 1959, inG.A., O.R..FotirleenfSess..Si'P..
Xo. 16 (A/4354). pp. 28-29.
' Ibid.. paras2 and 3.p. 29. SOUTH WEST AFRICA
92

seemed much too restrictive, more restrictive in fact than the
present terms ofreference of the Good OfficesCornmittee. The South
African delegation would therefore . ..vote against the draft
resolution as a whole l."
(b) Together with others, both Applicants also sponsored a resolution
designed to encourage Member States to institute legal action
against Respondent. This resolution, inter alia, drew-
". .. the attention of Member States to the conclusions of the special
report of the Committee on South West Africa covering the legal
action open to Member States to refer any dispute with the Union
of South Africa concerning the interpretation or application of the
Mandate for South West Africa to the International Court of
Justice for adjudication in accordance with Article 7 of the Mandate
read in conjunction with Article 37 of the Statute of the Court2".
The South African delegation had pointed out in vain that this resolu-
tion was not consonant with a conciliatory s irit necessary for success-
ful negotiation ).Other delegations also fearet'that this resolution would
have a deleterious effect and a formal proposa1 was made to postpone
consideration thereof until the 15th Session; but after an appeal to the
sponsors by the representative of Liberia, the proposa1 to postpone
cousideration was withdrawn '.

Izr. The General Assembly also adopted the annual resolution
(sponsored, inter alia, by Liberia) calling for the Territory to be placed
under United Nations trusteeship5. Of particular significance in this
respect is the attitude adopted by the representative of Ethiopia.
Speaking as a hlember of the Committee on South West Africa in the
Fourth Committee on 19October 1959h .e said, inter alia:
". .. The General Assembly had been entirely right to oppose, at
its thirteenth session, hoth the Territory's partition and any
solution which offered less than the full trusteeship regime as it
was applied in al1 the other Temtories administered by Member
States of the United Nations."
And later:
". .. the Ethiopian delegation was bbliged to state that the on!y
legally acceptable status for the Territory would be trusteeship
status. Nothing less would be in accordance with the Charter and
the advisory opinion of the International Court of Justice6".
122. With regard to the extracts £rom the report of the Committee
on South West Africa referred to at 1,page 79, it is desired merely to
record here that, without prejudice to its juridical osition, Respondent
did at the 14th Session of the General Assemb fy' deal with certain
allegations and information contained in the report. This was done to
draw attention to the misçtaternents and the unjustified conclusions
in the report, as well as to show that Respondent's refusal to supply

' C.A..O.K.,Fourleent Scss.,FourthComm.. gjist Meeting. zgOct ,959, para.
48.P. 254.
C.A.Resolution 1361 (XIV). r7 Nov. 195%inU.N. Doc. A14354. p. 29.
j G.A..O.R..Fourfeenf Sesa.,FourfhComm.. g3ist Meeting. para50, p.254.
* Jbid.gjznd Meeting, 30 Oct. ,959. para1.p.259.
' GA. Resolutio ,3n59 IXIV),17 Nov. 1g5g, in 1J.N. Doc. Al43p. 28.
C.A..O.R.,Fourfe~nf Shess.FourlhComm.,gi4thMecting. 1g0ct. 1959. p164. COUNTER-MEMOR IAFSOUTH AFRICA 93

information was due to its inability to accept United Nations account-
ability and not to a desire to hide the facts '.
The Applicants allege at 1,page 81,that the South African represent-
ative "made no real attenipt to deal with the practice of apartheid.
h'or did the Union dispute the existence of an interlocking senes of
legislation which the Committee deemed oppressive". Respondent did
not intend or attempt to deal fuiiy with the various allegations and
conclusions in the report of the Committee on South West Africa,
inasmuch as Respondent did not recognize supervisory authority as
vested in the United Kations, and was not accounting to the United
Nations in that sense.
Respondent uill not deal here with the aUegations in the said report 2.
1960
123. When the Committee on South West Africainvited Respondent
to negotiate with it in terms of resolution 1360 (XIV)' Respondent on
zg July 1960. replied:
"The Union Government have repeatedly expressed their desire
to find a solution which would be acce~tabie to al1 the ~arties
cnnccriicd. To tliis end tlic Cniuii Goveri<niviithlve, uver ;i'pcriod
of !.c:1r;. iiiadc concrtitc royus:ili and c\-1irt:ssrlirir !rilliiigiir.is
to ~.xnniiiiL-thcrs. '1-IIL:Pniuii(;o\.ernriieiit cuntii~t~ctu dtsire tli;it
this matter be settled and in addition to making certain helpful
offers to the Eourtli Committee last year, recorded once more the
Union's readiness to enter into discussions with an appropriate
United Xations ad hoc body that may be appointed after prior
consultation with the Union Government, and with terms ofreference
which u.ould allow the fullest discussion and exploration of al1
possibililies.
This offer did not, however, find a positive response and the
Assembly instead adopted resolution 1360 (XIV) which laid down
terms of reference for negotiation with the Union which were most
restrictive. The Union's representative pointed out, before the
adoption of the resolution, that the terms of reference were far more
restrictive than those of the Good OfficesCommittee and he voted
against the ado tion of the resolution. l'ou will therefore under-
stand that the Enion Government could not see any possibility of
fruitful results flowing from negotiations which required the Union
to place 'SouthWest Africa under the International Trusteeship Sys-
tem'-terms ofreference which rescribed the end result in advance.
The Union Government stif; believe that negotiations on the
basis proposed would not lead to any positive results.
The Union Government would. however. wish to reiterate their
rc;<din~.ssto enter into <lissussion with ;iiispprupriat~ United
A'i'ntiorsd hocbod!. that niay be apyoiiited alter prior coniiilthtion
\rith the Union Govcrnnicnt and whizh n.uiild hdvc a fulO portunitv
tp appruach ttieir t;isk constmcti\~cly. providiiig for fulcjt disciis-
jion ;ilid explorntioii of;il1pos,il>ilitics-oii the uiidcrstnnding of
coiirse. that this is \i,ithou. n,eiiidicr: to the liiiioii's consijtentlv
' C.A.. O.R., FourtccnthSess..@. cil.,8831d. 914th. 915th, 916th and 918th
Meetings.
Vzde para. r. supra.
Vide para. rzo(a), supra.94 SOUTH WEST AFRICA

held stand on the judicial [juridical] aspect of the issue1." (Itaiics
added.)
124. Respondent had intended reiterating the above offer at the
15th Sessionof the General Assemblv whichwas to meet someweekslater.
A-request by Respondent for eariy consideration of the South West
Africa question was, however, not acceded to by the Fourth Committee
and by the time it did come up for discussion, Applicants had instituted
these proceedings.
In the light of this event the South African representative informed
the Fourth Committee that, since the Committee's discussion on South
West Africa was likely to traverse the same field as that covered by
the proceedings instituted by Applicants, the matter was, in Respon-
dent's view, sub jicdicand should, therefore, not he discussed by the
Committee. The South African representative argued his contention at
some length, pointing out that discussion, and adoption of resolutions,
might have a prejudicial effect on the judicial proceedings and could
be construed as an attempt to usurp the functions of the Court. The
Committee rejected Respondent's proposa1 for an adjournment of the
debate pending the conclusion of the judicial proceedings-the Appli-
cants voting against the proposai for adjournment
The South African representative then informed the Committee that
his delegation could not be a party to discussion of amatter which was
the subject of a judicial action pending in the Court, sincein doingso it
would itself be violating the subiudicemle Z.
In view of these events it \vas not possible for Respondent to deal
further ivith its offer to explore "al1possibiiities".
125. At 1, age 82, Applicants give an account of certain erents at
the "Second fonference of Independent African States" at Addis Ababa
in June 1960. The relevance of these events to the proceedings before
the Court is not apparent, Save that the Liberian representative's
reference to the detemination of his Government "on behalf of al1
African States to pursue further action to get this territory placed under
the trusteeship provisions of the Charter", appears to confirm that in
the so-called negotiations with Respondent over the years, there had
been but oneob'ective on the part of Appiicants, namely United Nations
trusteeship for South West Africa.
126. A plicants also refer a1,page 84. toGenera1 Assemblyresolution
1565 (~4 '.This resolution was adopted after the filing with the Court
of the Applications in these proceedings. Respondent therefore does
not intend dealing with the contents thereoff, Save to state its strongest
objection to the reliance which Applicants, in referring to this resolution,
apparently place on the conclusion of the majority in the General
Assembly that "the dispute which has arisen between Ethiopia, Liberia
and other Member States on the one hand. and the Union of South
Africa on the other, relating to the interprétation and application of
the Mandate has not been and cannot be settled by negotiation".

127. Respondent refrains from dealing in this part of the Counter-

' C.A.. O.R.Fiffeen lhss.Sup. No.12 (A/qq6q!, Annex IC, p. 58.
Ibid.F.ourthCotnm..io.lgth Meeting, iq Nov. 1960. paras. 39-66, pp. 296-299.
01 18Dec. 1960, in G.A., O.FiftcerSrets.. Sup. No. 16 (A14684). pp. 31-32, COONTER-MEMOR IFLSOUTH AFRlCA 95

hlemorial with the extracts from the report of the Committee on South
West Africa as quoted at 1,pages 83 and 84 '.

Summary

128. Kespondent's submissions with regard to the facts dealt with in
this Chapter are stated in Chapters III to V below, in each case to
the extent relevant to the matter considered in such Chapter.
There remains, however, to be dealt with the following statements
by the Applicants in a summary at the end of Chapter II of their
hlemorials:

(a) "Upon the dissolution of the League of iVdions the Union did
not concealils desireto annex the Territory 2."
In paragraphs I to g above, Respondent indicated that the Mandate
for South West Africa gave effect to a compromise arrangement which
involved, inter alia, that C Mandates were, in their practical effect. not
far removed from annexation. Respondent has further shown in this
Cliapter that it considered closer association between South Africa and
the Territory to be a natural development and that it never made a
secret of its conviction that the interests of the inhabitants would best
be served tbereby. At the time of establishment of the United Nations
and even before the dissolution of the League, Respondent clearly an-
nounced its view that the Mandate should be terminated and the Ter-
ritory incorporated in the Union. Kespondent's proposal to that effect,
supported by the wishes of the inhabitants, was however rejected by
the United Nations in 1946.

(b)"Instead, shortly after the United Nations refusal to permit in-
cor@orationof the Territory, the Union contended that the United
Nations had no rights of supervision, or otherpowers, with respect to
the Territory3."
Respondent's contention was in conformity with a general under-
standing to that effect amongst Members of the League and of the
United Nations, and given expression to before and alter dissolution
of the League '.

(c) "The Opinion of the Court being uitsatisfactor)~to the Union,
the latterenouncedthe Opinion as beingin mror, and proclaimedils
intention not to comply therewith3."
Respondent did not "denounce" the Opinion, nor did it "proclaim"
an "intention not to comply" therewith.
Respondent advanced reasons why it could not accept certain of the
conclusions in the Opinion, the most important rcason being that cer-
tain vital information was not before the Court when tlie Opinion was
given. Although Respondent could not accept the Opinion in toto, it
nevertheless made concrete proposals and considered counterproposals
in an endeavour to find an acceptable arrangement.

' Vide para. .supra.
Vidc 1, p. 85.
Ibid.. p86.
' As will be further dealt withChap.IV. paras.38-42. infra96 SOUTH WEST AFRICA

(d) "There followcd years of patient, though unauailing eforts on
the part of the General Assembly to obtain implementation of the
Opinion, by means of negotiationand appeal l."
and.
"Hauing concludedafter fourteen years of fruitless efforts to obtaila
compliance on the part of the Union with the Mandate, that its
dispute with the Union has not been and cannot be settled by nego-
tiation. . .2"

As regards the implication contained in the lastmentioned statement,
to the effect that there has not been compliance with the Mandate on
the part of Respondent, reference is made to subparagraph (e) below.
The allegations concerning "unavailing efforts"and "fruitless efforts",
and the conclusion that there is a dispute which cannot be settled by
negotiation were dealt with fully in Chapters V and VI of Respon-
dent's Preliminasy Objections. Inasmuch as the issues now before the
Court do not require a decision as to whether there is a "dispute"
which "cannot be settled by negotiation" the submissions made in the
Preliminary Objections in that regard are, save as dealt with where
relevant in Chapters III to V below, not repeated in the Counter-
Memorial.
(e)"The Cornmittee'srepeatedfindings of Ultion violations of the
Mandate and recommendations thereonhave been as unavailing as
the Cornrnittee'sefforts to negotiate", and othe~&ga!ions nt page
57' concerningallegedviolations of the Mandate.
Respondent denies that its administration of the Territory has not
been in conforrriity with the provisions of the Mandate. For the reasons
stated in paragraph I above, Respondent refrains from dealing in this
part of the Counter-Memorial with the substance of the Applicants'
allegations in this regard.

' Vide1, p.86.
Ibid., p87. CHAPTER III

FOUNDATIONSOF RESPONDENT'SLEGAL ARGUMENT

A. General Outline

I. The legal argument presented in this and succeeding Chapters
constitutes a reply to the issues raised by Applicants' Submissions 1,2.
7 and 8, viz., whether the Mandate for South West Africa still exists,
and, if sa, whether the supervisory functions of the League of Nations
have passed to the United Nations1.

z. It may be convenient at this stage briefly to summarize the argu-
ment which Respondent proposes to submit to the Court. It may be
stated in the foUowingpropositions:
(a) The provisions for supervision of Mandatory administration by
organs of the League were dependent for their operation on the
existence of the League of Xations.
(b) Upon the dissolution of the League of Nations, the aforementioned
provisions were not modified into or replaced by others serving
the same or similar purposes, and consequently lapsed.
(c) Whether the Mandate continues in force at all, thus depends on
whether it is, in accordance with the intentions of its founders,
capable of existence without the said provisions.
(d) On the basis of the criterion stated in (c), Respondent submits
that the Mandate as a whole haç lapsed.
(e) In thealternative to (d), if the Mandate continues in force, Respon-
dent, for the reasons stated in (a) and (b), submits that it does
so only in respect of aspects which were not by their own.terms
dependent upon the League of Xations, and thus, in particular,
without any obligation on Respondent's part to submit to super-
vision by any international organization or body.

As appears from the above, Respondent's argument will faU,ipto two
main parts. dealing firstly with the disappearance of the provisions re-
lating to the supervision of the League in respect of mnndates (i.e..
Art. 6 of the mandate instrument and attendant provisions in the man-
date system) and secondlv with the lapse of the Mandate as,a whole.
The first partis dealt with in Chapter IV belowand the second in Chapte
V. In regard to the latter part, questions of asubsidiary natiiremay arise
regarding the comprornissory clause in Article 7 of the Mandate: these
are considered in Chapter V, more particularly in Part B and the con-
cluding portion of Part A thereof.
3. In the present Chapter, Respondent will consider a number of
topics of a general or introductory nature.

' Vide Chap. 1,para.1.supra, forthe text of the Submissions.g8 SOUTH WEST AFRICA

B. Effect of the Previous Advisory Opinion

4. In making their Submissions Nos. I and z', Ap licants in theu
Mernorials rely solely on the Advisory Opinion of t s Court of XI
July 1950, on the International Statu of South West Africa, and ask
that that Opinion be reaffirmed 2.Inasmuch as certain submissions ad-
vanced by Respondent in these proceedings are not in accord with con-
cluions amved at, or views expressed, hy the Court or some of its
members in the Advisory Opinion of 1950. a question anses regarding
the approach of the Court to a previous advisory opinion where the
same issues anse in subsequent contentious proceedings. This ques-
tion is dealt with in the next succeeding paragraphs.
5. Respondent submits that two general pnnciples govern the ap
proach in contentious proceedings towards a previous advisory opinion
which dealt with the same subject-matter.
Firstly. although an advisory opinion will always command great
respect and prima facie authoritative weight as an expression of the
views of an eminent tribunal, the Court will never refuse to reconsider
conclusions reached in a previous advisory opinion, Save perhaps where
a request for such reconsideration is frivolous or vexatious.
Manley O. Hudson States this principle as follows:

"Nor is the Court itself bound to adhere to conclusions reached in
an advisory opinion. if the question upon which an opinion is given
is later submitted to the Court for judgrnent, the matter is not res
judicata; and though an opinion ma!. be cited as a precedent, the
Court isnot bound to abide by the concldsionsstated intheopinion l."
In the Peace Treatiescase, Judge IViuiarski said:

"Opinions are mot formally binding on States nor on the organ
which requests them,they do not have the authority of resjudicata;
but the Court must. in view of its high mission, attribute to them
great legal value and a moral authonty '."
6. Respondent's second proposition follows logically £rom the first.
It is that ,where sound reasons are established, the Court will depart .
from a previous advisory opinion. This proposition is supported by
implication in the Judgment in the Upper Silesia case5, referred to by
A plicants, where the Court affirmed a view previously expressed in an

atvisory opinion because-"Nothing has been advanced in the course
of,the present proceedings calculated to alter the Court's opinion on
this point %"Clearly, the Court did not intend to formulate any generd
mle of ractice, such as suggested by Applicants in their Memorials,
where t I?y use the words-

QiiotedinChap. 1,para. i.supra.
Vide1. pp. 9:-ro3-paiticularlyp. 103.
' Hudson, M. O., The Permnncnt Court of Intarnational Just1920-1912 (1943).
p.5i2.
' InterpretaliaO/ Peace Tre<ities witButgoria,Hungary and Romania, I:irsl
Phase. Advisory Opinion, I.C.J. Reports rg5o.65.at p. gr.
P.C.I.J.SeriesA, No. 7.esta in PoliUwer Silerio, .hierifr.Judgment No. 7, 1926.
Ibid., p31. COUNTER-MEMORIAL OF SOUTH AFRICA 99

"... the practice of the Permanent Court in U$perSilesia wherein
the Permanent Court stated that it had alreadv ded uDonan issue
in an aJ\.ijury I~~uceediraiid ttien reaffirriieddtliatruiiRg when tlie
sarne ijiue aroseinthe contentious ~roçeediri- '".
The Court, in Respondent's submission. merely stated its finding and
its decision in that particular case. The statement implies that, where
good reasons are estabiished, the Court will depart from a previous
advisory opinion.
Objections in the present matter, adopted the same approach when itry
stated the following:

continuing effect of Article 7 of the Mandate, continues toreflectthe
Court's opinion today. Nothing has since occurred which would
warrant the Court reconsidering it. AUimportant facts were stated
or referred to in the proceedings before the Court in50Z." (Itaùcs
added.)
In Res ondent's submission the itaiicized words express the essence
of the Aurt's attitude. and imply that, had the Court's opinion
changed, it would not have hesitated to give effect to such change in
its Judgment.
7. Respondent does not wish to suggest any general and comprehen-
sive rules as to when the Court wiU consider that there are soue
reasons justifying a departure from a previous advisory opinion,. This
is essentially a matter that would depend on the particular circum-
stances of each case. The presentation of new or additional facts,
deemed by the Court to be important, or the happening of subsequent
events having an influence on the issues raised in the proceedings, are
a previous advisory opinion, and were by implication recognizedfrom -
such in the passage quoted above from the Judgment on the Prelimi-
nary Objections. But even in the absence of such factors the Court
will. in Respondent's submission, depart from a previous advisory
opinion if satisfied that justice requires it.
8. Applicants in their Memorials suggest the existence of a so-called
"principle" or "doctrine of Eastern Carelia", namely "that an advisofy
opinion as to a dispute is 'substantialiy equivalent to deciding the dis-
pute' "3.
In Res ndent's submission, no such general principle or doctrine
was laid gwn in the Status of EasternCarelia4.In that case the Council
of the League of Nations requested an advisory opinion from the Court
as to whether a treaty entered into between Russia and Finland and
a Declaration made by Russia at the same time, constituted engage-
gation to Finland. Finland contended that the Declaration was partbh-of
the agreement with Russia. Russia maintained that the Declaration did

'S0uLh WeslAfrica. Pre1iminav.v ObjedJudgmenf.I.C.J.RePorfsrq62, 3.9.
atp. 334.
Vide 1, p. 98.
*Slalu~ of Eastern Carelin, Advirory Ofiinion. 1983. SeriesB. No.S.,100 SOUTH WEST APRICA

not amount to a contract, but was only declaratory of an existing
situation and made merely for information.
The Court found that an advisory opinion on the question asked
by the Councilof the League of Nations would have to embody a finding
on facts which were in dispute between Finland and Kussial. Kussia,
which was not a Member of the League of Nations at the time, refused
to take part in tlie advisory proceedings 2.
In the circumstances, the Court declared that it would be at a very
great disadvantage at an enquiry into the disputed facts. The Court
said :
"lt appears now to be very doubtful whether there would be
available to the Court materials sufficient to enable it to arrive at
any judicial conclusionupon the question of fact: What did the
parties agree to? 'SheCourt does not Say that there is an absolute
rule that the request for an advisory opinion may not involve some
enquiry as to facts, but, under ordinary circumstances. it is cer-
tainly ex dient that the facts upon which the opinion of the Court
is desireghould not be in controversy, and it should not be left
to the Court itself to ascertain what they are.
The Court is aware of the fact that it is not requested to decide
a dispute, but to give an advisory opinion. This circumstance,
however, does not essentially modify the above considerations. The
question put 10 the Cozirt is not one of abstracl law, but concerns
directly themain point of thecontroversybetweenFinland and Rz~ssia.
and can only be decided byan inuesligationinto the factstrnderlying
tlie case.Answering the yi~estionwozrldbe substantially equivalentto
deciding the dispute betweenthe parlies. The Court, being a Court of
Justice, cannot. even in giving advisory opinions, depart from the
essential rules guiding their activity as a Court3." (Italics added.)
.The Opinion as a whole indicates that the passage "Answering the
question would be substantially equivalent to deciding the dispute" was
intended to refer to the particular case and waç not intended to lay
down any general rule. or to fornulate a general principle or doctrine.
Furthermore, it related purely to the Court's "activity" as a judicial
tribunal in investigating the matter with a view to coming to a "judi-
cial conclusion upon the question of fact". Nothing was said or implied
regarding the ureight to be attached to such conclusions in possible
later contentious proceedings.
In any event it is not clear what effect Applicants intend should be
given in the present proceedings to the expression "substantially equiva-
lent to deciding the dispute". In stating their appreciation of the effect
of the so-calleddoctrine laid down in Certain GermanIttteresls in U$$er
Silesia, Applicants, inler alia, propound the following proposition:
',... advisory opinions are not enforceable and do not have the
force of res judicata; nevertheless, they state what the law on a
given question is. and ivhen that question concerns an actual
dispute, the advisory opinion, especially if rendered after full

' Slaiusof EasternCar~lin. op.cit.p. zR
Ihid.,pp.27-28.
' lbid.. pp. 28-29, ÇOUNTER-MEMURIA OFL SOUTH AFRICA 101

hearing of the disputants' submissions is 'substantially equivalent,
to deciding the dispute;' " '.
Do Applicants hereby suggest that in the circumstances postulated, the
Court would never depart from a previous advisory opinion, even if
completely satisfied that it was wrong? If so, such a suggestion is clearly
untenable. Or do they merely suggest that in the circumstances postu-
lated, the advisory O inion will command great respect and prima facie
authoritative weight. If no more than the latter is meant, the contents
of the so-called doctrine accords with Respondent's submission.

g. In the Memorials Applicants nlso state that in the Peace Treaties
case:
"Majority and dissenting opinions alike recognized implicitly or
explicitly the principle of Eastern Carelia,namely that an advisory
opinion as to a dispute is 'substantially equivalent to deciding the
dispute' 2."
In Respondent's submission, there is no justification for this statement.
Although some of the minority judges in the Peace Treaties case
may have held the view that çome general rule was formulated in the
Stalus of Eastern Carelia to the effect of or weight to be attached to
advisory opinions in subseqnent contentious proceedings, that was not
the view of the majority.
The majority opinion in the Peace Treaties case merely distinguished
the two cases, holding that Statzrs of Eastern Carelia was profoundly
different for two reasons-firstly because the question put to the Court
in that case-

". . . was directlv related to the main oint of a disuute actuallv
pending between two States, so that a&wering the qÛestion wouÏd
be substantially.equi-alent to deciding the.dispute betweeu the
parties . ..";
and secondly,because-

". .. at the same time it raised a question of fact which could not be
elucidated without hearing both parties'".
There is nothing in the Opinion of the majority in the I'eaceTreaties
case which justifies a conclusion that the majority judges interpreted
the Status of Eastern Carelia case as laying down any general mle,
principle or doctrine regarding the effect or weight of advisory opinions,
or which justifies a conclusion that tliey gave recognition to any such
general rule, principle or doctrine. In effect, the majority opinion in the
Peace Treaties case refutes the very existence of any such general rule,
principle or doctrinc. That iswhy writers who interpret the Status of
Eastern Carelia case as laying down such a mle, principle or doctrine,
consider that case to have been overruled by the Peace Treaties case.
In this respect, reference may be made to Lauterpacht, The Deuelop-
ment of International Law by the International Court, where the learned
author States that the Advisory Opinion in the Status of Eastern Carelia

' Vide 1,p.97.
Ibid.. p98.
'I~nter$relalionO/Pence Trentias with Bulgnrin, Hunpory and Rotnanio. First
Phase, Advirory Opinion. I.C.1.~eports r950, p.72.102 SOUTH WEST AFRICA

case "... can no longer be regarded as a precedent of authority" ',and
that the case ".. . was not followed, in fact, in the Advisory Opinion
on the Interfiretation ofPenceTreaties" 2.

C. Effect of the Judgment and Opinions on the Preliminary Objections

IO. Respondent wiUat a later stage deal with some of the findings
of the members of the Court in the Judgment and Opinions on the
Preliminary Objections in this matter. In some instances Respondent's
argument derives a measure of support from such findings. Thus, as
far as the question of the survival or otherwise of the provisions re-

of the Court held that such provisions had lapsed on the dissolution

of the League, and although the other II members left the question
open, seven adopted reasoning which was to a greater or lesser extent
inconsistent with the survival of these provisions 3.
On the otber hand, as will appear hereafter, certain findings were
made which are contrary to submissions which Respondent wdi advance
regarding the question whether the Mandate as a whole has lapsed'.
It is necessary therefore to consider the correct approach which
shonld, in Respondent's snbmission, be adopted at the merits stage to
such findings.
II. The basic consideration is that a preliminary objection is not
meant to, and is not able to, give rise to a judgment that is binding
in regard to the issues on the merits of the dispute between the parties.
This consideration was recognized by the Permanent Court of Inter-
national Justice. Thus, in the Maurommatis case the Permanent Court
~fnphasized that a decision on the preliminary objections was given
... without, however, in so doing, in any way prejudging the final
outcome of such argument . .."5 (i.e., the argument on the merits).
12. Even where a decision on the preliminary objections has involved
a consideration of certain arguments relating also to the merits of the
dispute, this does not give rise to any principle of res judicata. This
issue was considered by the Permanent Court in the Polish Upper
Silesia case, where the matter was formulated as follows:
".. . the @urt cannot in its decision on this objection in any way
prejudge its future decision on the merits. On the other hand, how-
ever, the Court cannot on this ground alone declare itself incom-
petent; for, were it to do so, it would becomepossible for a Party to
make an objection to the jurisdiction-which could not be dealt
with witbout recouse to arguments taken from the merits-have
the effect of precluding further proceedings simply by raising it in
limine litis; this would be quite inadmissible.
The Court, therefore, .. . considers that it must proceed to the
enquiry above referred to, even if this enquiry involves touching

' Lauterpacht, H., TheDcveloPm~nl O/I~rfertlotionalLnwby the InternationolCourt
(1958) P. 248.
Ibid.~..--8.
' Vide Chap. IV. para. 55,infra.
' Vide in particular Chap. V, Part B, hereafter.
' Mourommalis Palestine Concessions.judgment No. 2,~p+, P.C.I.J., Series A.
No. 2. p. ,o. COUNTER-MEMOR IALSOUTH AFRICA 103

upon subjects belonging to the merits of the case; it is, however,
to be clearly understood that nothing which the Court says in the
present judgment can be regardedas restricting its entire freedom to
estimatetheualneof any argumentsadvancedby eitherside on thesane
subjects during the proceedingson the merits l." (Italics added.)
Findings made in a judgment on preliminary objections would
naturally carry great weight where the subject-matter of the hdings
is in issue on the merits. Nevertheless the Court would always enter-
tain arguments directed towards persuading it to depart from its pre-
vious judgment, and would come to a different conclusion where sound
reasons exist therefor.

D. Origin and Contents of the Mandate

13.By Article zz of the Covenant of the League of Nations, the
signatory Powers agreed that what came to be known as the "mandate
system" was to be applied to certain colonies and possessions,including
South West Africa.
As was indicated above2, the agreement as eventually set forth in
Article zz was a compromise amved at after much travail at the Paris
Peace Conference of 1919 .he history of the Article explains also why
its provisions were in certain respects vague and lacking in legal preci-
sion. Nevertheless the broad trends of what was intended, as distinct
from certain questions of detail, seem reasonably clear.
The Article commenced with setting out the signatories' agreement
that to the colonies and territories in question ". .. there should be
applied the principle that the well-being and development of ... [the
inhabitants] form a sacred trust of civilization...".It further recorded
their agreement that "securities for the performance of this trust"
should be embodied in the Covenant.
The second paragraph of the Article stated that "the best method of
giving practical effect to this principle" would be to "entrust" theute-
lage" of the "peoples" concerned to suitable "advanced nations", will-
ing to accept it. who would "exercise" it "as Mandatories on behalf of
théLeagueT'.
The wording of the Article as a whole, as well as its historical back-
ground, suggest strongly that the references to "trust", "tutelage" and
"Mandatories" were not intended to bear technical legal meanings, by
exact or close analogy to municipal law institutions of trust, tutelageand
mandatum. So, for instance, the English word "tnist", which is capable
of a technical legal meaning as well as of a more general ordinary
meaning, depending on context, was rendered in the French version by
the word mission, meaning in this context "task" or "undertaking",
intended. The conception, also, of the "tutelage" of a backward people
or community by an "advanced nation" could at most have been in-
tended ina broad, metaphorical sense. It is significant that in the actual
mandate instruments which came into existence subsequently, the words
"trust" and "tutelage" did not appear at all. Even in the case of the

Certain GermnnInterests PolishUpper Silesia. JurisdidiJudgmcnt No. 6,
r9a5,P.C.I.J.SerierA, No.6, p. 15.
Chap.II. paras. 2-9.104 SOUTH WEST AFRICA

words "Mandatory" and "Mandate", which were retained in the man-
date instruments themselves, the analogy, if any, with a private law
mandatum was probably intended to be of the broadest and most general
nature on-,. The more detailed and technical aspects of the private
law institution could bardly have been known to the Peace Conference
as a whole-as distinct possibly from certain of its members-and
cannot therefore fairly be presumed to have been intended to he incor-
porated in its covenants. It was probably by reason of considerations
such as these that the majority of the Court in the 1950 Advisory
Opinion expressed the view that it was ". .. not possible to draw any
conclusion by analogy from the notions of mandate in national law or
from any other legal conception of that law" '.
It seems then, that what was said in the opening paragraphs of
Article 22 concerning a "sacred trust" and "tutelage", must be regarded
as being descriptive of the idealistic or humanitarian objectives involved
in the mandate system, and that the reference to "Mandatories on be-
half of the Leame" is to he understood as affordina a hro-d indication
uf tlic iiic111u\\.titral,y ~Iiujeul,ji.cti 3\vould Iw juii~litrii lia ;ittnint:J.
II is, thercfore. ti>tlie nior,: dct.,iled pro<-iiiuiii:\rticlc 22 for 'seciiri-
tics iur rlie i~crforni;,nceof rliis rrii;rrli;ircc~rd niiijt I,,h;i<lin urrlir
to dcterniioc the juridical coiitt:iit <iftlie nixnil.iriq! stc111 <.iivi;~tgc~l
IN tlfisigii.<roriciro ttie Co\.cii;inr.
14.orianalysis the following "securities" are found embodied in the
further provisions of Article 22:
(a) Although the Mandatories were to have authority and control in
respect of the territories concerned (Art. 22 (a)) n other words (at
anyrate in the case of B and CMandates) title or power of govern-
ment and administration (Art. 22 (5) and (6)), this would Vary
according to circumstances (Art. 22 (3) and (8))and would he sub-
ject to conditions (Art. 22 (5)and (6)).
(b) The said conditions would be directed towards a two-fold purpose,
namely,

(i) toprovide certain "safeguards in the interests of the indigenous
population", and
(ii) to secure certain interests or benefits for Members of the League
and their nationals (Art. 22 (5)and (6)).
(c) More particularly, the conditions mentioned in regard to B and C
Mandates as directed towards safeguarding the interests of the
indigenous population were:
. '<... conditions which will guarantee freedom of conscience and re-
ligion, subject only to the maintenance of public order and morals,
the prohibition of abuses such as the slave trade, the arms traffic
and the liquor traffic, and 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 defence of
territory ...".
(Art. 22 (5)read with (6)).
(d) Specifically directed towards the interests or benefit of illembers
of the League and their nationals, would be conditions to "secure

'Intevnational SfalusofSouth-West Atvica, Advisovy OpinionI.C.J. Repo~IsIqso,
p. 128, atp 132. COUNTER-MEMORIAL OF SOUTH AFRICA 105

equal opportunities for the trade and commerce of otlier Rlcmbers
of the League" (Art. 22 (5)). This so-called "open door" clause
\i.ould not, however, apply in regard to CMandates. (Videlimitative
words at the end of Art. 22 (6).) It is further evident that certain
of the conditions mentioned in (c) above as directed towards
indigenous interests, could in addition serve the interests of League
Members (e.g., the restrictionsupon trafic in armsand aminiiuition
and upon fortification and armament).
(8) 'The Mandatory was to be nnder an obligation to render to the
Council of the League "an annual report in reference to the territory
committed to its charge" (Art. 22 (7)). A Permanent Mandates
Commission would receive and examine the reports and advise the
Council "on al1matters relating to the observance of the mandates"
(Art.22 (9)).
(1) ?lie "degree of authority, control, or administration" to be exer-
cised hy the Mandatory was to be "explicitly defined" in each case:
hy agreement hetween Members of the League or hy the Council
(Art. 22 (8)).

15. It will be observed that Article 22 did not itself purport to,put
the mandate system into operation. It set forth the agreed idealistic
objectives of the system, agreed methods whereby it would be put into
O eration and agreed features which would be incorporated therein.
de provisions of Article 22 clearly envisaged that concrete steps would
have to be taken for the complete constitution of the system, namely
towards entrusting the "tutelage" of the inhabitants of particular ter-
ritories to particular "advanced nations . . .wiiling to accept it" (Art.
22 (2)).constituting those "nations" as "Mandatories on behalf of the
League" (Art. 22 (z)), and explicitly defining the degree of authority,
control or administration to be exercised by them (Art. 22 (8)); and
those provisions prescribed conditions which were in this process to pe
imposed as obligations upon the Rfandatories, szrbstantivelyin the tu-
terests of the mandatcd peoples and hlernbers of the League (utde
Art. 22 (5) and (6) and para. 14.supra), and procedurally with a v?ew
to international supervision of the "observance of the mandates", 1.e..
of the exercise of the substantive powers and compliance with the sub-
stantive obligations (Art. 22 (7)and (9)).
In other words, Article 22 was an agreement between Members pf
the League as such, regarding a mandate system to be constitzctedln
pursuance thereof. The system itself, however, wvouldbegin to O erate
only upon the conferment on the respective Mandatories as sucl (not
necessarily Members of the League) of s$ecific Mandates in respect of
particular territories, and upon the specific definition of the Manda-
tories' rights and obligationsin connection therewith.
16.The concrete steps envisaged by Article 22 wereduly taken, in the
following order:

(a) The Principal Allied and Associated Powers (in whose faveur
Germany was to renounce her overseas possessions by Arts. 118
and 119 of the Treaty) allocated the various territories to different
Mandatories, and, inter alia, decided on 7 May 1919that the
Mandate for South West Africa should be held by Xespondent.
(b) Draft mandate instruments were considered by the Principal
Allied and Associated Powers ancl, alter agreement amongst them- 106 SOUTH WEST AFRICA

selves and with the designated Mandatories as to the terms thereof
submitted to the Council of the Lea~ue. In the case of South West
Africa the Mandatory's agreement appears from the second and
third paragraphs of the preamble of the draft submitted to the
Council and of the instrument as finally approved '.
(c) The Council of the Leagiie conhed the Mandatesz, thereby
constituting the designated hlandatones as "Mandatories on behalf
of the League".
Id) The Council further, in Dursuance of Article 22 (8).defined the
terms of the ~andatbs inthe manner set out in th; &struments of
Mandate '.This was generally in accordance with the drafts sub-
mitted, subject to certain altérations '.
17. The provisions of the Mandate for German South West Africa,
as defined by the Council on 17 December 1920, were typical of C
Mandates. They cm, for convenience, be grouped as follows:

(a) Mandatory's Title: The Preamble set out that there was con-
ferred and conhrmed, in accordance with Article 22 of the Covenant
"a Mandate ... to administer the territory aforementioned", which
the Mandatory had undertaken "to exercise . .. on behalf of the
League" 5.Article 2 provided that "the Mandatory shall have full
power of administration and legislation over the Territory ... 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".
(b) Mandatory's Substantive Obligations:These were set out in Articles
2 to 5. Article 2 imposed the general obligation to "promote to
the utmost the material and moral well-being and the socialprogress
of the inhabitants". Articles 3, 4 and 5 imposed conditions as con-
templated in the portion of Article 22 (5)of the Covenant cited in
of abuses such as the slave trade, the arms traffic and the liquorition

military trainingArtof natives other than for police and defenceand
purposes; and those in Article 5. to freedom of conscience and reli-
gion. Article 5 was worded with reference not only to freedom of
conscience and worship on the part of the inhabitants, but also to
allowing al1missionaries who were "nationals of any State Member
of the League of Xations" to enter into, travel and reside in the
Territory for the purpose of prosecuting their calling. \nile al1
rhe obligations imposed by Articles 2 to 5 were "safeguards ...
in the interests of the indigenons population", certain of the pro-
visions (e.g., those of Article 5 relating to missionaries) appear
to have been intended to secure and serve in addition the interests
of Members of the League and their nationals.
(c) Mandatory's Procedz~ralObligations: Article 6 imposed the obliga-

at pp.84-94,and Chap.1II,para.,15,sr'prn.a150 Prearnbles toother C Alandates
* End of Preamble of Mandate for South \\'est Africa and alsoofother C Man-
dates.
' VideendofI'reamble.
' VideChap. II. para.15,supra
' Paras.2 and 3 ofPreamblr. COUNTER-MEMORIAL OF SOUTH AFRICA 107

tion to render to the Council of the League, to its satisfaction,
an annual report "containing fuU information with regard to the
territory, and indicating the measures taken to carry out the
obligations assumed under Articles 2, 3, 4 and 5".
(d) Amendn~entof Mandate Prouisions: Article 7 provided that the
consent of the Council of the Leaeue was reauired for anv modifica-
tion of the terms of the Mandater
(e) Compulsory Jurisdiction for Adjudication of Disputes: Article 7
also set out the hlandatorv's aereement to the submission to the
Permanent Court of internation austice of disputes between itself
and another Member of the League of Nations, in so far as they
related to the interpretation or ap lication of the provisions of the
Mandate and could not be settled gy negotiation l.
18. With reference to the origin and content of the Mandate, Res-
pondent wishes to emphasize two points:
(a) The Mandate required,and arase out of, the consent of a number
of parties, inctuding the Mandatory.
During the hearing of the Preliminary Objections, Respondent sub-
mitted that the Mandate never was a "treaty or convention in force"
within the meaning of Article 37 of the Statute of the CourtZ. For the
purposes of this submission, it was necessary to consider not merely
whether the Mandate gave rise to international obligations. but the
character of the act or instrument that gave these obligations their
legal force.
The majority of the Court held that the Mandate derived its legal
force from international agreement to which the Mandatory was a
party 3, On the basis of this finding, it is obvious that the existence and
terms of the Mandate required the consent of the Mandatory.
But the same result follows from the contrary view, expressed, inter
alia, by Judge Basdevant and by Judges Spender and Fitzmaurice :.
They held that the Mandate had derived its legal force from a quasi-
legislative exercise by the Council of the League of its powers in terms of
Article 22 (8) of the Covenant to define the degree of authority, con-
trol or administration to be exercised by the Mandatory. However.
this conclusion would also not deroeate from the fact that the Manda-
tory's consent to the conferment and terms of the Mandate was required
and obtained. Thus the basic terms of the C Mandates were laid down
in the Covenant, which incorporated the compromise agreement to
which Respondent had consented. When the Covenant was drafted, it
was clear that the Mandate for South West Africa would be granted
to Respondent. In fact the conferment of the Mandate pre-dated the
signature and coming into force of the Treaty of Versailies, of which the

' Vide Chap. II. paras. 11-16. supfor the history ofthis clause.
' Soulh Wcst Africa, Preliminory Obj&lionr. Oral Procccdings(2 to 22 Oct.
1962).P. 365.
' Vidc South West Africa. Pre1imi~:nryObjrctionr, Judgmenl, I.C.J. Rcporls 1962.
P. 331; the separate opinion of Judge Bustamante. pp. 358.361; the separate
LouisoMbanefo,epp. 440-442. 398.401; and the separate opinion of Judge Sir
' Ibid., pp. 460-462.
' Ibid., pp. 474-404; vide ako Judge Spiropaulos at pp. 347-348 and Judge van
Wyk at p. 598.108 SOUTH WEST AFRICA

Covenant formed a part '. The mandate instrument could not depart
from the lines laid down by Article 22 of the Covenant without the
express consent of the Mandatory 2. In fact, Save for the addition of a
compromissory clause, the mandate instrument for South West Africa
clearly adhered to the principlcs which had been agreed to by the authors
of Article 22. Of particular importance for present purposes is the fact
that the provisions regarding League supervision contained in Article 6
of the Mandate consisted basically of a repetition of the contents of
Article 22 (7) of the Covenant. And the compromissory clause, which
added a new element not provided for in Article 22, recorded that the
Mandatory's consent thereto had been obtained ("The Mandatory

agrees . .").
Whether or not the Mandate ever was a "treaty or convention" does
not therefore affect the basic consideration that the Mandate required
for its creation and validity the consent of a number of parties, in-
cluding the Mandatory.
@) Regard beinghad tothe contents of Article 22 of the Covariantand
of the Mandate instrument, the terms of the Mandate could not be
applied fully in the absenceof the League of Nations.

As has been noted above, Article 22 of the Covenant and the Mandate
instrument contained various references to the League of Nations and
to its Members.
Thus Article 22 (7) of the Covenant and Article 6 of the Mandate
both provided for the rendering of aunual reports to the Council of
the League, and Article 22 (9)of the Covenant provided for the creation
of a Permanent Mandates Commission to receive and examine these
reports and to advise the Council thereon.
Although of lesser importance for present purposes, the provisions of
Articles 5 and 7 of the Mandate contained similar features. Article 7
required the consent of the Council for modification of the terms of
the Mandate, and provided for compulsory jurisdiction solely with
reference to disputes between the Mandatory and another Member of

the League of Nations. Article 5 required special facilities for mis-
sionaries who were nationals or any State Rlember of the League of
Nations.
At present Respondent wishes to emphasize only that these various
provisions can no longer be applied in accordance with their express
terms. For purposes of Respondent's argument3 this is of particular
importance as regards the provisions concerning administrative super-
vision'. During the lifetime of the League of Nations there was no
difficulty about submitting annual reports to the Permanent Mandates
Commission and the Council of the League of Nations exactly in accord-
ance with the provisions of the Mandate and the Covenant +.The disso-
lution of the League brought about a radical change in this respect.
As pointed out by Judge Read in his minority opinion in the 1950
Advisory Proceedings, the dissolution of the League gave rise to a

Vide Chap. II, para.IO,supra.
Vide report of M. Hyrnans, adopted on 5 Aug. ~po, in 1.. ofM.,O.]., 1920
ISo. 6).P. 337.
' Vide broad exposition in para.2.supra.
' Article22 (7) and (g) othe Covenantand Article 6 ofthe Mandate. COUNTER-MEMORIAL OF SOUTH AFRICA log

situation wherein "it waç no longer possible for the Union to send
reports to a non-existent Council, or to be accountable to, or supervised
by. a non-existent Permanent Mandates Commission" '.

E. General Pnnuples Applicable in Determining Whether

Particular Provisions of the Mandate Still Exist

ICI.The situation indicated at the conclusion of the ~revious para-
graph necessarily raises questions regarding the continuêdexistence or
otherwise of the provisions in question, and particularly those con-
cerned with administrative suuervision. Inasmnëh as thev Ean no lonrer
be applied in accordance withAtheirexpress terms-assu~ing. of course,
that those terms are to be understood as bearing thcir apparently
obvious meaning-it follows prima facie that these provisions lapsed
on dissolution of the League. If they did not lapse, they can today be
applied only in a manner different from that laid down by their express
terms (understood as aforesaid) and from that applied in practice during
the lifetime of the League of Xations. The question is therefore how
such a situation could possibly have arisen. Excluding possibilities that
are wholly far-fetched, it seems thatit could have arisen on one or more
pf four broad bases only, viz.:

(a) If the express terrns of the provisions in question are a a matter
of interpretation to be understood in a sense which, contrary to
their apparently obvious meaning, would enable the provisions
to operate despite dissolution of the League.
(b) If the Mandate was ab initio subject to an implied provision providing
for its adaptation in the event of the dissolution of the League.
(c) If an agreement, express or implied, making such provision, was
entered into dnring the period of the foundation of the United
Nations Organization and the dissolution of the League, or there-
after.
(d) If some legal princi le, operating independently of the intent, of
those concerned, e fPcted some change in the Mandate enabhng
the provisions in question to operate after the dissolution of the
League Z.
These four potential bases involve three separate legal concepts, viz. :
(i) lnterpretation of the express terms of an instrument.
(ii) The implication of a term or agreement not expressed in the
instrument.
(iii) Legal rules affecting relationships between States and operating
independently of their consent, express or implied.

It will be convenient at this stage to set out briefly the legal prin-
ciples which are, in Kespondent's submission, applicable to these three
concepts. For convenience (ii)will be considered in conjunction with (1).

' I>lternotional StaofSouth-West Africa. AdvjsoyyOpinion,I.C.J.Hepo~ls 1950.
p. 166.
* If it werto becorne nccessarto consider the survivor otherwise of the Corn-
prornissory clausinArticle 7of the Xandate, the ramebases would be applicable.II0 SOUTH WEST AFRICA

II. PRINCIPLES OF INTERPRETATIO ANND IMPLICATION

20. The major questions of interpretation which will be dealtwith at
this stage of the proceedings relate to the provisions of Article22 of the
Covenant and of the mandate instrument. The Covenant was of course
a convention among hfembers of the League, and as such the ordinary
principles of treaty interpretation would apply ta it. And the mandate
instmment, whether or not it was a treaty in the ordinary sense of the
word, in any event embodied the concord of willsof a number of partie,
including the Mandatory'. In principle and logic the same mles of
interpretation would therefore be applied to the mandate instrument-
whatever its tme juridical nature may have been-as to a document
embodying an international agreement.
For convenience Respondent will, in the following exposition, employ
terminology which is appropriate specificdly to international agree-
ments. It must be borne in mind, however, that, for the reasons stated,
the principles set out therein are equally applicable to the Mandate
instrument, whether or not it could be regarded as ever having been a
"treaty or convention".

21. Certain principles applicable to the interpretation of international
agreements are set out in detail, with reference to authority, in the Oral
Proceedings relating to the Preliminary ObjectionsZ. Kespondent does
not propose reviewing the authorities in full again, but will merely refer
ta the major principles which are, in its submission, relevant to these
proceedings.
22. CommonIntent Z.
Treaties and conventions, being international agreements, owe their
effect in law to the ioint or common consent of the ~arties thereto.
Consequently al1questions concerning either the existencêor the measure

reference t6 the common intekt of the ~arties.swered basically with

Tlie bsic ai111of treaty interpretatio~.CU of interpretation of contracts
in municipal Isw, is tlierefore to amvc at and ~ivceffcct to the common
intent ofthe parties. as that common intent ëxisted at the time when
the agreement was reached. To this aim aii the mles and principles of
interpretation must be subservient-they are intended merely to be of
assistance for the purpose of arriving at the common intent of the
parties.
23. Actuality, Natural MeaningandContemporaneity 2.
In,seeking ta ascertain the common intent of the parties, a tribunal
will in the first instance have regard ta the principles of actuality,
natural meaning and contemporaneity. This means that prima facie:
(a) the text of the treaty as it stands should be regarded as fully and
accurately expressing the common intent of the parties (principle
of actuality)21 -
(6)the language of the text is to be given its normal, naturd and

unstrained meaning in its context (principle of natural meaning) ';
(c) the text should be appraised in the light of concepts and linguistic

' Vidapara. 18 (a),suprn.
Oral Proceedinp,3 Oct. ,962(rnorning). COUNTER-MEMORIAL OF SOUTH AFRICA III

usage current at the time of its execution (principle of contem-
poraneity) '.
In applying these principles, it is. of course, necessary ta look at
and consider the instmment as a whole before any conclusion is reached
about the meaning or effect of any part thereof 2.
Where the application of these principles gives rise to a clear, un-
ambiguous and coherent result, it is only in exceptional circumstances
that a Court would depart therefrom, ta find, e.g.-
(i) that the text mut be regarded as being amplified by something
not ex ressed therein; or
(ii) that f : text is to be understood in some sense other than the
ordinary and natural one 1.

Implication of Tacit Agreement '
24. The principle of actuality referred to above involves that the
parties mut prima facie he 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 with-
out giving expression ta such agreement.
Courts in al1legal systems guard themselves against assenting to such
a proposed implication on any but the most cogent grounds, realizing
that lmplication on a basis of speculation, or of what the parties ought
reasonably to have done, would amount to the making of a new bar-
gain or compact for the parties, as distinct from the Court's tme func-
tion of giving effect ta the bargain or compact actually agreed ta hy
the parties themselves. Consequently the requirement is stressed that
an implication of sucb tacit consensusmust arise necessarilyor inevilably
from the relevant facts, in the sense that all other reisonable inferences
are excluded.
25. Two further corollaries arise from the principles stated above:
(a) The term sought ta be implied must be capable of formulation
in substantially one way only. If the content of the term sought
to he implied is doubtful, then one cannot conclude that the parties
tacitly agreed on anything at ail'.
(b) Where the written document makes express provision for any
eventuality, there is increased difficulty about finding that there
mut in addition be an implied term covering substantially the
same ground as such express provision 3.
26. Travaux Prifiaratoires, Contemporanea Expositio and Subsecutn
Observatio3.
Travaux Préparatoires,ContemporaneaExpositio and Subsecuta Ob-
serva!~~are al1 recognized as legitimate aids ta interpretation whoe
required. But their degree of usefulness must necessarily Vary with tir-
curnstances. Thus:

(a) Wto the text of an instrument, their potential utilitynwould decrease

' Oral Proceeding3s .ct.1962(moming).
' oral Proceeding3sO.ct. ,962(afternoon).112 SOUTH WEST AFRICA

. or increase in accordance with the extent to which the text in
the particular respect is itself clear, on the one hand, or obscure
or ambiguous on the other.
(b) \\'here the purpose is to ascertain whether the parties were tacitly
agreed upon something not expressed in the instrument, the ques-
tion of textual clarity does not arise, but such extraneous facts,
in so far as they are relevant, could form an important part of the
data for the drawing of inferences concerning consensusor the ab-
sence thereof in the particular respect.

Efectiveness (Ut res magis valeadquampereat) '
27. This ~rinciole takes account of the obiects and Duruoses of the
insLment 'to beLinterpreted. and presumes 'that the p'arges intended
for particular provisions the maximum effectiveness, consistent with the
texf, towards achievement of such objects and purposes.
The degree to which this principle could assist interpretation also
depends on circurnstances. Thus it could be a factor-
(a) in choosing between alternative possible meanings of an ambig-
uous or obscure text, or
(b) in deciding whether an inference of tacit agreement does or does
not arise necessarily in a particular respect l.
28. To some extent different considerations aiise in the operation of
the principle of effectiveness in these two different applications thereof.
There are, however, certain basic propositions that are common to
both, viz.:
(a) The principle of effectiveness is only an aid towards arriving at
the intention of the parties. It cannot operate to give a higher
degree of eficacy totheinstrument than the partiesintended. Italso
cannot act as a substitute for a non-existent common intention'.
(b) The objects and purposes, to which effect is sought to be given,
must themselves be ascertained by interpretation. The principle
of effectiveness cannot operate to ascribe to the parties a loftier
purpose than the one they actiially had in mind '.
29. In its application as an nid to textual interpretation, the principle
of effectiveness cannot override the clear meaning of the text. It can at
most assist the Court in deciding which of two or more possible mean-
ings of an expression is, in case of doubt. to be prefened. It wnnot
justify a "meaning" which the language cannot bearl.
30. In ils operatioii relative to implied terms, the principle of effect-
iveness also has a relatively limited application. Basically it only medns
that, for the purpose of deciding whether a term is to be implied 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 object 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 aU
cases the ordinary rules relating to implied terms would still apply.
Thus it would not be sumcient to have regard merely to the purpose
or object of the parties. The purpose or object would be only one of
the circumstances to be considered, although in some cases it might

' Oral Proceeding 3~O.ct.rgGz(afternoon). COUNTEK-MEMOR IA LOUTH AFRICA 1x3

be a very important one.. It urould, however, always be necessary to
examine al1 the relevant facts and circumstances, giving due weight
to each one'. Furtliermore, the ordinary rnle appiies that an implied
term cannot override the express terms of the instrument, or operate
to regulate some aspect for which express provision is made in the
instrument. Thus a finding that the parties had a certain purpose or
object in mind, would not justify a radical amendment of the instrument
inorder ta give effect ta such purpose or object. In this regard, particular
reference may be made ta the foiiowingpassage from TheLaw ofTrealies,
by Lord McXair:

"The rule of effectiveness must mean something more than the
duty of a tribunal ta give effectta a treaty: that is the obvious 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 1 submit to
you to be correct. this treaty will fail in its object.' But that is a
pelitio pri~icipii. because, as bas 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 thelight of theszirroundingcarcumsLa~~cMes.any treaties fail-and
richtlv fail-in their obiect bv reason of the words used. and
tr';buials are properly reiuctanf to stcp in and modify or sipple-
ment the language of the treatyz."

III. LEGALRULES AFFECTING RELATIONSHIP BETWEEN STATES AND
OPERATING INDEPENDENTL OYF THEIR CONSENTE ,XPRESS OR IMPLIED

31. Article 38 (1)of the Statute of the Court provides as follows:
"'llizCoiirt, u.lioie fuiiction is ta decide in accordancc with
intçriintioiial In\vsuch ~liq,iitc.i:is arc subinitted to ir. stinll apply:

(a, inrcrn.rtion:il cuiiv,.iiiiuns, \vlictlier gcner:il or y:irticul;ir. estab-
II-liiiig riilc; ~.s~ir,:.;sl!.r~-<:ognizcdhy t1,r ~urit~iring St:itcs;
(6) inrt.riiatiuiinl ciiit;Ievidencc of a gciii~ralpr.îctiw acceptecl
as law;
(c) the general principles of law recognized by civiiized nations:
(d) subject ta the provisions of Article 59,judicial deusions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of
Iilw"
Subparagraph (cl)clearly is not a source of laiv which is to be recog-
nized by the Court, but merely a method which the Court may adopt
in ascertaining what the legal principles are. Rosenne puts it as follows:
"Heads (a), (b) and (c) [of Article 38 (I)]describe the various
types of rules, from the point of view of legal theory, of which to-
gether international law iscomposed. Head (d) refers to an entirely
different aspect. namely subsidiary means for the determination
of rules of law, i.e., of the niles falling into one or other of heads

(a). (6) and (c) 3.""4 SOUTH WEST AFRlCA

Apart, therefore, from treaty, rules of law affecting the relationships
between the parties in the present casecan arise only from international
custom or the general principles of law recognized by civilized nations. CHAPTER IV

THE MANDATORY'SPROCEDURAL OBLIGATIONS

A. Introductory

I. The main aspect of the Man'dateto be examined, is that concern-

ing the Mandatory's procedural obligations, in other words. those obli-
gations relating to administrative supervision of Mandatory administra-
tion by organs of the League of Nations. The purpose of the enquiry
is to ascertain-
(a) whether on a correct interpretation of the express provisions of
the Mandate instrument and the Covenant. this aspect was capable
of surviving the dissolution of the League of Nations; and, if not,

(6)whether an implied term in the Mandate itself provided the neces-
sary adaptation to an existence after dissolution of the League
of Nations; and, if not,
(c) whethei an agreement, express or implied, malcing such provision,
was entered into during the period of the foundation of the United
Nations Organization and the dissolution of the League, or there-
after: and. if not,
(d) whether some objective legal principle eiïected some change ,in the
Mandate enabling this aspect to operate after the dissolution of
the League.

B. History, Nature and Meaning of Mandatory's Procedural Obligations

z.Although, as submitted ahove', the authors of the Covenant did
not intend any close or technical analogy with municipal law institu-
tions of trust, tutelage and mandatum, the mandate system did provide
certain features of broad resemblance to those institutions. The resem-
blance to trust and tutelage lay in the vesting in the Mandatories of
title and powers of administration, subject to conditions which involved
obligations to utilize the powers for the benefit and progress of under-

developed peoples. The resemblance to mandalum was supplied by the
notion that the Ilandatories would, in the exercise of these civilizing
functions, act "as hlandatones on behalf of the League", and more
specifically by the provision requiring them to report to the Council of
the League relative to observance of their obligations in that regard.
3. In the history of the government and development of backward
countnes and their inhabitants, this element of Leame supervision

~rovided for i~ ~ ~ ~ ~ ~ ~~~vstern-2a-~-~--nn~~-t~on cenërallv re-"
Cognizedto be of great importance.
The application of the "sacred tmt" and "tutelaae" concepts in this
sphere vas nothing new. Following on views egpressed by earlier
writersZ, the colonial policies of western powers were,as from the 18th

' Vida Chap. III. para. i3.
Vide Chawdhuri. R. N., InterrralionaMandates and Trusleerhi~SyslLrnr (1955)~
pp. 16-18.116 SOUTH WEST AFRICA

century, described by various statesmen as civilizing missions involving
dnties of truste es hi^ and eu..dianshi~ towards the colonies and their
inhabitants '.
These declarations were generaliy recognized to be of a moral charac-
ter and as involving no consequencesin international law. P. T. Furukaki
expressed the position thus:

"Heretofore certain powerful States of superior civilization have
attributed to themselves a civiliziirg mission among backward
peoples. France, for example, admits and practices the theory of
the colonization-tutelage. But this is a purely moral duty, volun-
tarily accepted by the colonizing state as a politic means of justi-
fying in the name of civilization the conquest and the administra-
tion of colonial territories difficult to justify from the democratic
point of view.This duty has been envisaged as the conseqrienceofthe
suzerainty over the colony. It allows sovereignty in its full integrity
to remain in the colonizing government which has to render account
to no one for its action 2."
4. Towards the end of the 19th century, during the period of the so-
called "scramble for Africa" on the part of colonial owers. various
international conventions were entered into between t em in relation
to, inter alia, the welfare of native peoples. The General Act of the
Berlin African Conference of 188j provided in Article 9 thereof that
the slave trade waç "forbidden" by "the principles of international law
as recognized by the signatory Po~ers"~: and in regard to the area
known as the Conventional Basin of the Congo the powers undertook
towards each other not only to apply the "open door" principle but
also-

".. . to watch over the preservation of the native tribes and to
care for the improvement of the conditions of their moral and
material well-being, and to help in suppressing slavery, and espe-
cially the slave trade'".
Later international conferences, mainly at Berlin and Brussels, in
the years 1890. 1899, 1900, 1906, 1907 and 1912, resulted in the recoy-
nition as between the signatory powers of principles and rules relating
to abolition of slavery and the slave trade and to regulation of the
importation of arms and trade spirits into Africa
Although it is in a sense correct to Say that by these conventions
the welfare of backward peoples was rendered "a matter of international
conceni"_ there were as yet no sanctions to the conventions. As Bent-
wich puts it:

' Choxudhuri, op. cif.. pp. 18-22. Vide also Toussaint, C. E.. The Trusleeship
System O/the UnileriNalions (1956). pp.5-8: Hall,H. D.. Mandafcs, Dependancies
an2 Furukaki.ip1'. T., "Naturejuridique des mandats internationauxsfde la SociCt.4
des Nations", Bib. Un. (July-Dec. 1926). p. 385.as cited by Wright, op. ci;.. pp.
536-537.
Hall. op. cil..104.
' Article 6, General Act of the Berlin African Conference. Referred to in Hall,
op.cif.. p104.
VideHall. op. cif., pp102-104j Toussaint, op. cil., pp. 8-9; Chowdhuri, op. cil..
pp. zo-zz:Bentwich. op.cil.. p. 5.
Toussaint, op.ci;.p.9. COUNTER-MEMOR IAFLSOUTH AFRICA II7

"The signatory ,Powers had no defined means of intervening if
things were done contrary to the convention; and, in fact, they
did not interfere'."
According to commentators this weakness led to evasion and inade-
quate observance of the conventions2. Moreover, it gave rise to un-
certainty as to the exact manner in which certain aspects of the con-
ventions were to be viewed-more particularly whether, in providing
for native welfare in covenants as between civilized States, the con-
ventions were to be regarded asgiving rise to legal obli ations in inter-
national law or whether they resorted in the sphere Of morality only.
5. The mandate system, whilst also containing provisions in accord-
ance with the "sacred trust" and "tutelage" ideals. sought to overcome
this weakness and uncertainty by the introduction, in accordance with
the mandatzrm concept. of international accountability in the form of
League supervision. And thus it was that Wright commented:

"The distinctivefeature of the system isundoubtedly the League's
supervisioii. The principles of trusteeship and tutelage have often
been avowed before and sometiines practised but only as self-limita-
tions 3."
And commentators generally are agreed that it was through the pro-
vision for League supervision that the hfandatories' obligations in re-
spect of the welfare of the mandated communities became "juristically
sanctioned" '.
6. Although commentators frequently employ the broad descriptive
terms "Leaye supervision" and "supervisory functions of the Leaye",
such phraseology did not occur in the relevant provisions of Article
zz of the Covenant or of the hfandate instruments. These provisions
were as follows:
(a) Article22 (7) of the Covenant:

"In every case of mandate, the Mandatory shall render to the
Council an annual report in reference to the territory committed to
its charge."
(b)Article 22 (9) of the Covenant:
"A permanent Coinmission shaU be constituted to receive and
examine the annual reports of the Mandatories and to advise th;
Council on al1matters relating to the observance of the mandates.
(c)Article 6 of the Mandate for South West Africa (and correspond-
ing provisions in other Mandate instruments) :

"The hfandatory shall make to the Council of the League of
Xations an annual report to the satisfaction of the Counc!, con-
taining full information with regard to the territory, and indicating
the mensiires taken to carry out the obligations assumed under
Articlesz, 3,4 and 5."
These specificprovisions are further to be read in the light of:
(i) the provision in Articlezz (2) that the "tutelage" should be exer-

'
Rcntwich, op. citp. 5.
VideHull , p.cil.pp.104-105.
'WVidee.g..Furukaki.as cited by Wrightop.cil., p. 53Bentwich. op.cilP.5.118 SOUTH WEST AFRICA

cised by advanced nations "as Alandatories on behalf of the League",
and
(ii) the Mandataries' undertakings (asrecorded in the preamble of the
Mandate instruments) to exercise their Mandates "on behalf of the
League of Nations".

7. The "supervisory functions of the League" spoken of by com-
mentators \vas a concept in essence derived from the obligation, im-
posed upon the Mandatories by the above provisions, to report with
reference to the respective territories and to the meaures taken to carry
out the substantive obligations. The reports would (by implication)
regularly be considered by the Permanent Mandates Commission and
the Council of the League with a view to achieving aiid maintaining
observance of the Mandates, if necessary by Councilresolutionsdirected
to that end.
Moreover the Council, without exuress urovision to that effect in the
Ci,\.criniit or tlie inand:ite iiisrr~iniciits,ricccprédtliat tlie ~.oiiiiili:r.~tioii
uf lwtitions regnrtling :illcge<ljiricv.iiiic;il~i>iol~.:cr\.;iiiof tliu1I;iii-
11.ttc.jIIYthe ll:~nilator~é;\vo~~l.flor11i,;irof its Oirit:ii<~iS rlic>!ilx:r-
visory &an. And it laid down in thât regard the rules of procedure
already referred to above '. Briefly these involved that petitions from
inhabitants ivere to be forwarded through the respective Afandatories.
who could then at the same time furnish their comments, and that
petitions from other sources were to he addressed to the Chairman
of the Permanent Mandates Commission, wlio was to decide whether
they merited attention and, if so, to forward them to the Mandatory
concemed for comment.
Thus the regular consideration of reports and of petitions and the
AIandatories' comments thereon, \+<tha view to securing observance of
the Mandates, constituted League supervision correlative to the Man-
datories' oblieation to rc~ort aiid account to the Council. Without the
imposition ofYthis oblig<tion on the Mandatories, there would be no
justificatiori for an inference that the League Council was intended to
ëxercise a "supervisory function", or for sbeaking of any obligation to
submit to such supervision.
So, by contrat, Article 23 (b) of the Covenant of the League im-
posed upon League hIembers the obligatioii "ta secure just treatment of
the native inhabitants of territories under their control". But, in the
absence of any additional provisions requiring the Members affected by
Article 23 (b) ta act in tliis respect as Mandatories on behalf of the
League, and to render reports to the League indicating the measures
taken ta comply with the obligation undertaken in tliat sub-article,
nobody has ever suggested that the League was given a supervisory
functionwithreference ta that ohligation or that the Members in question
were obliged to submit to any such supervision.
It is evident, therefore, that the essence of League supervision or
the sufiervisorylzinctio~rsO/the Leape was the Mandatories' oblicationto
re4ort and account to the Council of the League in respect of com-
pliance with the substantive obligations pertaining to administiation
of the territories.and protection and development of the inhabitants.
The further obligation or function ofthe Mandatories relative ta super-
vision, viz., the forwarding of petitions, wns purely subsidiary and de-
'
Vide Chnp. II,para. 20,supra. COUNTER-MEMORIAL OF SOUTH AFRICA Irg

pendent on the fact that the Council was the supervisory organ-which
fact inturn depended on the obligation to report and account.
8.Uy its content the obligation required the Mandatories to report
and account to a specificsupervisory body,constituted and functioning
under the provisions of a particular international convention. It was
not an obligation to submit generally to "international supervision"
or to surervision by the "international community" or "the Family of
Nations , or "the civilized nations of the world" or the like. It was an
obligation to report and account to a specificorgan of a specik organ-
ization of certain of the nations of the wodd, viz.. the Council of the
League of Nations.
The implications of this feature are of major importance. The League
was constituted by a Covenant, the provisions of which were known to
the Mandatories, and to which al1 hlandatories were, initidy, signa-
tories. The Constitution of the Counci1,and the manner in which it was
to function were laid down in the Covenant. As has been net. above',
the provisions of the Covenant in that regard required, znter alia,
unanimity, as a general rule, for Council decisions (Art. s), and au
invitation to any Member of the League not represented on the Coun-
cil to be represented at any meeting during the consideration of matters
specially affecting the interests of that hfember (Art. 4). The Council
\vould in regard to Mandates be assisted and advised by a permanent
Commission (Art. 22 (9)). It was to supervision through machinery
governed, inter alia, by these provisions of the Covenant, and to no
other, that the Mandatories consented to submit.
g. The practical importance of the fact that the obligation related to
specificsupervisory machinery, is illustrated by certain statements made
by delegates at the Paris Peace Conference. It will be recalledZ that
on 30 January 1919, when the compromise arrangement regarding
the mandate system was arrived at, the South African Prime Minister,
General Louis Botha, stated that:
"Personally he felt very strongly about the question of German
South-West Africa. He thought that it differedentirely 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
bresent there that dav. who understood the bosition and who would
kot make it impossibiefor any mandatorytoRovernthe country. That
was why he said he would accept it3." (Italics added.)
To this exilanation by General Botha, added significance is lent by
earlier statements of the British Prime Minister, hlr. Lloyd George,
and President Wilson of the United States of America, in the Council
of Ten on 28 January 19x9 as follows:

"hfr. Lloyd George said that he agreed with M. Clemenceau that
governing, and charged with functions which it would be unable tof

' Vida Chap. IIpnrn. 18.
lbid., par6.
' Po?.R~elUS. :The Paris PenceCon/erenccrgrg, Vol. III, pp. 801-802120 SOUTH "EST AFRICA

perform, it would be destroyed from the begirining. But he had not so
interpreted the mandatory principle when he had accepted it.
President Wilson said he too had not so interpreted it.
MI. Lloyd George, continuing, said that he re arded the system
merely as a general trusteeship upon defined con%itions.Only when
those conditions were scandalously abused would the League of

Nations have the right to interfere and to cal1on the mandatory
for an explanation. For instance, should a mandatory allow fou1
liquor to swamp the territories entrusted to it, the League of
Nations would have the right to insist on a remedy of theabusei."
IO. The above contemplation of a wnservative approach to the
possibility of League interferencewith Mandatory government, became
a reality upon the establishment of the League. The report by M.

Hymans, unanimously adopted by the Council of the League on 5
August 19202,included the following passage:
"The Annual Report stipulated for in Article 7 should certainly
include a statement as to the whole moral and matcrial situation of
the peoples under the Mandate. It is clear, therefore, that the
Council also should examine the question of the whole administra-
tion. In this matter the Cozrncilwill obviouslyhave 10 display extreme
prudence so that the exerciseof its right of contra1should no1provoke
any justifiable complaints, aiid tharsincreasethe difictrllies of the task
undertaken by the Mandatory Power '." (Italics added.)

The Permanent Mandates Commission was constituted with a view
specially to securing an im artial and non-political approach to the
exercise of the supervisory &nctions. Reference has been made above
to the independence and the individual merit of the members of the
Commission,and to their expressed endeavour to exercise their authority,

and their energies to a joint endeavour 4".
The dual function of supervision and co-operation was again stressed
in later reports5, and observed in practice6.
The Council of the League seldom took any action in regard, to
Mandates supervision Save on the basis of the Commission's advice,
and usually accepted it when given; resolutions were tactfully worded
as suggestions or invitations to hlandatories7; and due to the con-
siderable representation of Mandatory Powers on the Council, it was
generally sympatheticto the Mandatories' point of view8.
Thus the agreed supervisory machinery was in fact very carefully
checked and balanced so as to render unlikely any injurious, biased or

unfair interference with Mandatory government, and, indeed, as was
then apparently considered to be in the best interests ofthe inhabitants

' For. Rel. U.S.. op. cil.pp. 769.770.
Vide Chap. II. para.rj, suplo.
' L.of N.. O.]. .920 (No. 6).p. 340.
' Ibid.,1921 (Nos. IO-121,p. 1125. VideChap. II,para. 20.supra.
' Vide P.M.C. Alin..VIII, p. 200: Wright. op. cil.pp. 196-197
Vide Wright. op. cil.pp. 199-200; Hall,op. cit.p. 209.
'Wright, op. cil..p. 128.
Vbid.. pp. 87-90. COUNTEK-MEMORIAL OF SOUTH AFRICA 121

of mandated territories, so as to contain the minimum of political
element and a maximum of independent expert approach.
II. In the above circumstances. the wordine of the oblieation to
report and account as relating to a specific supervisory authority and
no other, was auite evidentlv not a matter of mere form or technicalitv.

there can therefore be no doubt that the parties never intended or con-

templated any other su ervisory authority than the Council of the
League, assisted by the 3ermanent Mandates Commission.
Since the principle of contemporaneity would have to be applied in
inter~retine the ~rovisions of the Mandate1. the auestion mav be ~osed
whet'her any intérpretatioii could reasonably be &en to thé MLndate
which would have entailed anv obligation on the Alandatory to submit
durine the lifetinte 01 Il= Leieue to su~ervision bv anv other inter-
national organization or any Gher orgai of the ~eague & regards per-
formance of its functions under the Mandate. It seems self-evident that
the answer must be in the negative. If, for example, a group of Nations
which did not join the League had formed an organization of their
own, with objectives similar to those of the League and withorgans
capable of exercising a supervisory function in regard to the government
of mandated territories, it could surely not have been contended that
the Mandatories, having agrced to submit to "international supervision"
by League organs, must for tliat reason be regarded as obliged to sub-
mit to "international supervision" by some organ of the parallel organ-
ization. Such a contention would seek to attribute to the Mandatories
an obligation to which they had never agreed; and its untenability
would become the more manifest if the other form of supervision
should be lacking in the very qualities which had made tlie specific
League supervision acceptable to the Afandatories and had probably
induced them to agree theretoz.
Similarly it could not have been contended that the Mandatories
would, without fresh consent on their part, be obliged to submit to
"international supervision" by some other international organization in
fact established and having for its members largely the same States as
the League of Nations-sucli as,for instance, the International Labour
Organisation. Again such a contention mould seek to attribute to the
Mandatories ail obligation substantially different from that agreed to
by them in Article 22 of the Covenant and the mandate instruments.
12. Even within the League of Nations organization, an alteration
in the supervisory machinery provided for in the Covenant could not
be imposed upon the Mandatories without their consent-e.g., an
alteration transferring the supervision from the Council to thessembly.
or providing that the Council could in matters of Mandate supervision
arrive at valid decisions by a simple majority or by a two-thirds vote.
For again such an alteration would seek to impose upon the Mandat-
orles an obligation of a content different from that agreed to by them
in the Covenant and the mandate instruments. Article 2G of the Cave-
nant did provide for amendments to the Covenant, through ratification

' VideChap. III,para.23,supra.
This argument is therefore nrnerely atechnicaone. In lagic and fairness.
similar considerations appafortiori to those which in municipal law prevent a
master from cedingaservice contract without the servant'csonsent.122 SOUTH WEST AFRICA

by the Memùers whose representatives composed the Council and a
majority of the Members whose representatives composed the Assembly:
but it proceeded to provide that no snch amendment would bind a
hlember signifying dissent therefrom, although the dissentient would
then cease to be a Member of the League. At worst, therefore, a
hfandatory refusing to agree to an alteration in supervisory machinery
could lose its membershiv in the Leame. but the alteration could not
be rendered binding upÔn it as a hïandatory without its consent-
given either expressly, or tacitly through acquiescence without dissent
in a Covenant amendment in terms of Article 26.

13. As a matter of interpretation, it is thereforesubmitted that there
cannot possibly be any warrant for reading Respondent's duty to submit
to supervision by the Council of the Leaye as meaning supervision by
any other international organiz t'on.

C. Whether an ImpIied Term Can Be Read into the Mandate
Instrument

14. The further question then arises as to whether there can be read
into the mandate iiistrumeiit an implied term which could have had the
effect of preventing the lapse of the Mandatory's procedural obligations
on the dissolution of the Leaye of Nations.
Respondent is loath to devote extensive consideration to this aspect
since it appears soinewhat academic. The Court in the 1950Advisory
Opinion apparently did not rely on any such implied term, as wiil be
pointed out hereunder'. Nor did Applicants in their Memorials. They
did indeed attempt some such basis in their Observations on the Pre-
liminary Objections, referring to an "automatic succession" or "doc-
trine of succe~sion"~ whereby the United Nations allegedly succeeded
to the supervisory functions of the Leagile of Xations. Although Appli-
cants did not specifically indicate the legal origin of this alleged succes-
sion, it did ap ear from the development of their argument at 1,pages
442 to 443 an pages 443 to 446'. that they probably had in mind some
term to be implied in the Mandate itself. This appears, inter alia, from
their reliance5 on the so-called principle of effectiveness, which was said
to be applicable in view of the alleged essentiality of international super-
vision asan element of the Mandate. As pointed outearlier6, effectiveness
may be used either to assign a meaning to an ambiguous phrase (wh/ch
hardly arises in the present case) or as one of the factors from which
a term may be implied. Homever, after this "automatic succession"
argument had been analysed and dealt with by Respondent in its
Oral Statement7, Applicants refrained from attempting to support it,
or even from raising it at all, in the Oral Proceedings. and no member
of the Court applied it. Judge van IVyk dealt with it only to reject it8.
' Vide paras43-48, inlrn.
Vide1, p. 429. ,
' Ibid.,p. 443.
' Videalso p. 481.
' Ibid., $>443-446.
Vide Chsp.111,para. 27,sr'pra.
'Oral Proceedingç, 5 Oct. 1962 (morning).
South West pfri~a, Preliniinary Objections, Judgrnent. I.C.Raparis 1962.
pp. 6ojA. COUNTER-MEMOR OIA LOUTH AFRICA 123

Nevertheless. since the possibility of an implied term arises also in
respect of other aspects of the Mandate, Kespondent proposes dealing
with it.
15. Any implication of such a term in the Mandate presupposes that
the parties in 1920intended that the supervisory functions of the League

would not necessarily have to be exercised by the League itself, but
could, in the event of its dissolution, be exercised by some other appro-
priate body. And the so-called essentiality of international supervision1,
could likewise have been relevant in this regard only if the authors
of the Mandate contemplated the possibility that the organs of super-
vision actually provided by them, \vould not endure. It seems clear,
however, that in 1920 nobody did in fact contemplate the possibility
of the future dissolution of the League, or the creation of any other
international body to take its place. This seems to be generally accepted.
Thus. Judge Bustamante states in his separate opinion on the Pre-
liminarv.Obie2ti~~~-
"Obvioiiily the l>ro\.isioiiiof tlic Co~.~ii:~ii\ti.hicli 11.,iistiturcil
t11~i.iiternitfi~ii~l\lind;~tc; .i!.>tcin <liJ iiot ,.ii\,rlicpoïsibility

uf tlie diszulutioii of 11.~.I.<:neui:of Karion; :iii<Jid not forcséc
its possible effects on the ~anYdateagreements in forceZ."
Judge Jessup refers in bis separate opinion to the League system aç
"a system which it waç fondly hoped in 1919 would become uni~ersal"~.
In their joint dissenting opinion, Judges Spender and Fitzmaurice
express the view that it is "evident that those concerned did not foresee,
and would have refused to contemplate, a possible break-up of the
League" 4.
Judge vaii Wyk states in his dissenting opinion as follows:

"The tnith is that the possibility of the dissolution of the League
was not contemplated when the Covcnant was agreed to or when the
Mandate Declaration was made . . . 5"
And Applicants themselves make the following statement in their
Observations on the Preliminary Ob.ecti.ns:
"lt was, of course, hoped and expected that the organs created
alter U'orld War 1 to represent the international community mould
endure 6."

16. Even if one were to assume, contrary to the generally accepted
facts, that the authors of the Mandate did contemplate the possibility
of a future dissolution of the League. it is still clear that no tacit intent
can be imputed to them which would have the effect of the substitution
of a neursupervisory organ, bowcver essential the)' may have considered
international su ervision to be. It lias bcen pointed out abovc7 that
certain of the dndatories could only with great difiiculty be prevailed
upon to accept the mandate system at al1 in substitution for contem-

'
ssprn.de Applicants' contention in their Observations.as referredto inpara. 14.
Soulh ives1Alrico. Preliininnry Objedions. Judgrnenl. I.Reports 1962,p. 362.
Ibid.. D412.
Ibid..P.514.
Ibid.,p.601.
' Vide 1, p. 443.
' Vide Chnp. II, paras.2-9,supra.124 SOUTH \\'EST AFRICA

plated annexation, that a special compromise formula had to be devised
in order to meet their difficulties. and that their acce~tance thereof. with
rcluctance, was strongly iuflueiiced by the compoGtion and nature of

the supervisory organs. It is therefore almost inconceivable that they
would-have Geed in advaiice in 1920 to submit to supervision at
some unknown date in the future by a body, the composition, proce-
dure and attitude of which were ex hypotkesi unknown to them. This
becomes the more apparent if one adds the considerations that the
circumstances whereunder the League would be dissolved would in the
nature of things be unknown and unpredictable in rgzo, aiid that the
authors of the Mandate made express provision in Article 7 thereof
for its future amendment. Surely had the matter been raised, the reac-
tion of at least some of the prospective hlandatories would have been
that the matter was to be left for further ameement in Dursuance of the
amendment provisions, in tlie light of the as yet unknown circumstances
tbat mi~ht app-- -t the time of postulated dissolution of the League. .
17. It seems clear, therefore, that no such implied agreement could
possibly have been concluded. Further confirmation for this conclusion
is found in the fact that no State has ever alleged the existence of such
an implied agreement. During the discussions concerning the future of
the mandates by the founders of the United Nations in 1945.1946and by
the ;\lembers of the League at its final session in April 1946. there
was ample opportunity and every incentive for representatives to refer
to such an agreement, ifone existed. Xo such reference was made.
Again in the discussions during the years 1946.1949in the various organs
of the United Nations, concernirig the continued existence of the hlan-
date', no suggestion was made of any implied agreement concluded at
the time of the creation of the Mandate, providing for future succession
of supervisory organs Z.
18. Respondent siibmits therefore that, likewise as regards iiiterpre-
tation of its express provisions), there was nothing in the Mandate or its
surrounding circumstances which would, by way of an implied term,
provide a warrant for rejecting the printa facie conclusion that the
hfandatory's obligation to report and account, together with the sub-
sidiary function of forwarding petitions, lapsed on dissolution of the
League.

D. Whether an Agreement, Express or Impüed, Was Entered into during
the Years 1945-1946or thereafter

1. GENERAL

19. The above conclusion leaves the further questions, iiamely
whether the procedural obligations under consideration were adapted
either by agreement during the years 1945-1946or thereafter. or by the
operation of some objective Rule of Law, to the change of circum-
stances resulting from the dissolution of the League of Nations.

' Vide Chap. II, paras56-60.Vide also paras. 36-4infra.
See generally iregard to thiç tapic. the disienting opofiJudge van\Vyk
in SottthWest Afriçn, Prcliminary Objartionr, Judgment, I.C.J. Rep1962. pp.
607-Gro. COUNTER-MEMOR IALSOUTH AFRICA 125

In their Memorials. Auul..ants in effect contend that the oblieatio-s
"continue" in forcc iii inoilifie<lfurm, \.iz.. as ul~ligatioiisti~n.port :incl
accoiint aiid for\vard petition; to the Gcncrlrl :\;jeinbl!~ of thc Liiiited
Satiori. \ihiih iiiust for the Duruosesof the said oblia-tions be rea-rded
as the new supervisory authôritj '.
Applicants rest their case in this regard entirely on the majority
Advisory Opinion of 1950. and ask for reaffirmation thereof 2.
Since, in Kespondent's submission, the Court in its 1950 Advisory
Opinion reached its conclusion on the bais of the events during 1945-
1946, Respondent will, while dealing with the question whether any
express or irnplied agreement was reached during that period, at the
same time consider the correctness of the 1950 Advisory Opinion in the
respect under discussion.
zo. Kespondent contends respectfully that the general considerations
which normally operate in favour of affirmation of a previous advisory
opinion, are in this case ontweighed by certain special considerations
to the contrary.
The first and foremost of these is that vital factual information was
not placed before the Court for the purposes of its Advisory Opinion
in 1950. The information in question casts clear light on the real intent
involved in the final resolution I>y the Assembly of the League of
Nations on 18 April 1946, regarding Mandates, and also on the cor-
responding general intent and understanding on the part of the Rlem-
bers of the United Nations at the time of its formation and during the
early years of its existence. Knowledge on the Court's part of the facts
in question would, in Respondent's submission, almost certainly have
led to a conclusion contrary to that arrived at in the majority opinion.
The inforrnatioii and its significance will be dealt with below3.
liespondent must also point out. with respect, tliat there were in any
event two minority opinions on this question. In the critical comment
of writers on international law-which may also have been based on
fuller information regarding the relevant facts than the Court had at
its disposal in 1950-the weight of opinion appears to favour the
reasoning and the conclusions arrived at in this regard in the minority
opinions.
Furthermore, in the Judgment and opinions on the Preliminary
Objections, four members of the Court held that Kespondent's procedural
obligations had lapsed on the dissolution of the League, and although
the other II members left the question open, seven adopted reasoning
which \vas to a ereater or lesser extent inconsistent with the survival
of these obligations4.
In al1 the circumstances a de novo and thorough consideration of
the whole question seems essential.
21. It will be recalled that the United Nations Charter was drafted
at Sin 1:rnnçisïo duriiig tlii: period 25 ,Al>rito 25 Jiinr. ri)45,anil carne
in10 force on 24 October 1945-i.e. sonie %is muiitlis I><-f<~tiï I.engue
of Satioris \vas disjol\.ed As \vas indictitçd ;iliove, the Uniteil Salions

' Vide Applicant~' SubmissionSo. z (1.p. 197). readwith 1.pp.52. 53.95-103.
3 Vide paras. 48-51i,nfra, and earlier passathere referreto.
' Vids paras.55-69. inlra.
' Vide Chap. II, para29, supra.126 SOUTH WEST AFRICA

was a new international organization which had for its hIembers some,
but not au, of the Members of the League of Nations at that time,
plus some States that were not then, and a large number that had never
been, Members of the League'. Although in many respects it adopted
principles and objectives identical or similar to those of the League of
Nations, it was not a successor in law to the League; indeed two of
its major founder Members were known to be strongly averse to succes-
sion in lawl. After the Charter and the new organization had com-
menced to function, and upon dissolution of the League, certain League
assets were taken over by the United Nations and certain League
activities were "assumed" and continued by it; but this was effected
by special agreement and arrangements pertaining to those assets and
activities, and again in language which intentionally avoided any
impression of succession in law 2.
In providing for the establishment of a trusteeship systern which
would, in a broad sense, correspond to themandate system of the League
of Nations, the United Nations Charter created supervisory machinery
which differed very materially from that which had operated under
the Covenant in respect of Mandates. ln the trusteeship system the
supervision of first instance would not be by a commission of inde-
pendent experts, but by a Trusteeship Couiicil consisting of govern-
mental representatives of member States'. And the ultimatesupervisory
authority would not be a Council in which Mandatory Powers exercised
strong influence and in which a unanimity nile prevailed, but either
the General Assembly of the United Xations', which could arrive at
decisions by a bare majority, or, on important questions, by a two-
f,hirds ~jority 5,or the Security Council in the case of trusteeship over
strategic areasM6,in which event decisions could be taken by seven
affirmative votes including those of the five permanent members7 out
of a total of II~.
From the reasoning set out in paragraphs 2 to 13 above, it follows
that no Mandatory could, by reason only of its agreement in 1920 to
report and account to, and thus to submit to the supervision of. the
Council of the League of Nations, now be held obliged to report and
account to, and submit to the supervision of, the United Nations Or
any of its organs. The contentof the latter obligation would be materially
different, in sttbstanceas well as in torm, from that agreed to in 1920
by the Mandatories; and for this reason alone it followsthat a Mandatory
could only have become bound to such an obligation by /resh agreement
and consentthereto.
22. The question. therefore, whether Respondent is obliged to report
and account to, and submit to the supervision of, the General Assembly
of the United Xations, in essence resolves itself into an enquiry whether
Respondent by any binding juristic act has consented to such an obli-
cation.
' Vide Chap. II, para. 30.
Ibid., paras. 33-34. 37. 39-40.
Art. 86 of the Charter.
' Arts. 85. 87-89 of the Charter
' Ibid.. Art. 18.
Ibid.. Art. 83.
' Ibid.. Art23.(3). COUNTER-MEMORIAL OF SOUTH AFRICA 127

Although the enquiry asthus posed essentially concerns Kespondent's
consent to an obligation as postulated, it must of necessity also have
reference to another aspect, viz., with whom Respondent agreed tosub-
(if any). (The majority advisory opinion
mit to such an obligation
of 1950 does not exprëssly refer tothis as ect of thequestion.)
The mandate instrument derived its Egal efiect either from inter-
national agreement, or from a Leaguc resolution in terms of Article
22 (8) of the Covenantl. Whichever of these alternatives should be
correct, it seems evident that the international perçons, other than the
Mandatory, who were intended to derive rights or legal interests from
the mandates were the League of Xations and/or the Members of the
League-at any rate rimarilyz. One would therefore prima facie ex-
pect the League and/% its Members to be parties to an agreement,
ifany, rendering a Mandatory obliged to report and account to a new
!iupervisory authority. And if that new supervisory authority were to
be an organ of the United Nations, it seems that the United Nations
:ind/or its Members would necessarily have had to be parties to such
an agreement.
For al1 practical purposes the enquiry is therefore directed towards
ascertaining whether Kespondent at any time bound itself by, agree-
ment, either with the Members of the League at the time of its dis-
solution (directly or via the League as representing them), or with the
United Nations and/or its Members, or with both these groups, to an
obligation aç postulated. Such an agreement could conceivably have
been either part and parce1 of gelteral multipartite conventions con-
i:erninf: the formation of the United Nations andlor the dissolution of
the Lëague, or special as between Respondent 'and the others \vho
<:ouidconceivably have been parties thereto as aforestated.

II. THEUNITEDNATIONC SHARTER

23. There could he no warrant for any suggestion that the provisions

of the Charter of the United Nations by themselves rendered Kespon-
dent obliged to the United Nations or the other Members thereof to
report and account to, or to be subject to the supervision of, any organ
of the United Nations with regard to performance of its functions under
the Mandate for South West Africa. In this respect there appears to
Iiave been general agreement in the Advisory Opinion of 1950. The
inajority opinion particularly emphasized that:
".. . the Charter ha contemplated and regulated only a single
SyStem,the International Tmsteeship System. It didnot contemplate
or regulate a CO-existingMandates Sistem 3."
The whole of the portion of the Opinion in which this statement
occurred (answer to question (b)) was concurred in by Judge McXair
and Judge Read'; and the particular statement was agreed to by Judge

Vide Chap. JII, para.18 (a). st'pvnand Chap. V, PartR, paras. 33-47i*/+'a.
Vide Chap. V, Part B. paras. 48-67. infra, where Respondent sutirnits that these
for presentpurposes.howekr,rsthe point is immaterial.d such r-ehts or interests:
' InfernolionaSlnttdof South-West Africn. Advirory Opinion. I.R~porfs 19j0.
p. 140.
Ibid.. pp. 146and 164respectively.128 SOUTH \VEST AFRICA

de Visscherl. Judge Krylov 2, and apparently also Judges ZoriCiCand
Badawi Pasha (who concurred in the dissenting opinion of Judge de
Visscher) 3.It is borne out entirely on reference to the Charter. The
provisions of the Charter make no mention of anything pertaining to
supervision in regard to hfandates. They do make provision for super-
vision of administration under the trusteeship system, but render it
clear that this would apply only to cases in respect of which trustee-
ship agreements are entered into4. Clearly they impose no obligation
upon any Mandatory to enter into a tmteeship agreement, as was
witli respect, correctly) held hy the majority of Judges in the Advisory
5 pinion in 1950. In any event Respondent had at the San Francisco
Conference, when the Charter was being drafted, rendered clear and
explicit that it did not intend to place South West Africa under United
Nations Tmsteeship or to be a party to any other arrangement involving
commitment to the United Nationss.
In the circumstances, it is rnanifest that, by agreement to the Char-
ter, Respondent did not agree to any United Nations supervision of
the performance ofits functions nnder the Mandate. Furthermore, inas-
much as the Charter provided for supervisory machinery only in res-
ect of trusteeship agreements voluntarily entered into, there would
gave had to be some further appropriate arrangement, in amplihcation
or possibly even amendment of the Charter, if United Nations super-
vision was to be brought about regarding any Mandate or Mandates not
converted into trusteeship.
24. Notwithstanding the above, Applicants attempted in their Oral
Statement on Respondent's I'reliminary Objections to base an argu-
ment on Article 80, paragraph 1.of the Charter, as, in their contention,
it had been interpreted and applied by the Court in the 19jo Advisory

Opinion. Article 80, paragraph I,reads as follows:
"Except as may be agreed upon in individual trusteeship agree-
ments. made under Articles ,,. ,, and 81. la ci neeach territorv
under the trusteeship system, and until such agreements have been
concluded, nothinir iiithis Chapter shall be constmed in or of itself
to alter in anv mariner the riu -s whats~ ~ ~ ~f ~nv States or anv
peoples or th; ternis ol esijting iiitïrn:itioii;il iiistrukentsto \r,liicii
\It.rnl)t~rsotliiUnitcd S:irioiis niav-re;p&cti\.cl., be-pxties."
Applicants' submissions regardiiig this Article appear in the Oral Pro-
ceedings of 16 and 17 October 1962. The effect of their submissions
is that the Court in the 1950 Advisory Opinion interpreted this Article
as having been "designed to conserve alt rights of peoples of Mandated
territories to international supervision and judicial pr~tection"~.
In Respondent's submission, the Court in 1950 gave no such inter-
pretntion to Article 80'.
The Court, in its Judgment on the Preliminary Objections, did net
accept Applicant's argument relating to Article 80 and it is conse-

' InttrnotionnSlatus of South-West Africa.op. cit., p. 186
Ibid., p191.
' Ihid.o. 145.
Arts. j6?;and 79of the Charter.
'Oral Proceedings. 17 Oct. 1962(morning).
' Vide para.46, infra. COUNTER-hlEMORI OAFLSOUTH AFRICA IZg

quently not necessary to deal withit in dctail. In Respondent'srespectful
submission. the untenabiity of this argument appears clearly from the
following footnote to the joint dissenting opinion of Judges Spender
and Fitzmaurice, the reasoning of which. although it deals more parti-
cularly with the suggested effect of Article 80 (1) on Article 7 of the
Mandate, applies also to its effect on Article 6: . .
"It has however been sought to cal1 it [Le.. Article 80 (I)] in
aid as follows: the Article, it is said. 'conserved'the rights of States:
one of these rights was that stated in Article 7 of the Mandate
instrument; therefore the right survived the League dissolution

until the mandated territory was brought under trusteeship.
The argument is not only inherently unsound, it ignores the
words of Article 80 (1). This Article is clearly an interpretation
clause, commonlv called 1 saving clause, of a type frequently to be
found in legislative or treaty instruments, designed to prevent
Statute or Treaty provisions being interfireled so as to operate
be ond their intendment.
Ench a clause does not, except in a looçe and quite indefinite
sense, 'conserve'any rights. It prevents the O eration of the Statute
or Treaty from affecting them (whatever t gey are and whatever
their content) except as provided by the Statute or Treaty. Article
80 (1) does not maintain or stabilize rights as they existed at the
date of the Charter coming into operation, nor does it insure the
continuance of those rights or increase or diminish them. It leaves
them unaffected by Chapter XII of the Charter.
What Article 80 (1) does not Say is as important as what it
does Say. It does not Say that rights shall continue. It does not
~rovide that these riehts shall not thereafter. until tmsteeshi~
agreements have bee~concluded, be subject tb the operation Ôf
law, or that thev shall not terminate or be extinmished bv effluxion
of time, failureof purpose, impossibility of perhrmance ir for any
other reason. It does not Say these rights shall not be altered or
be subject to alteration even by normal legal processes.
It is evident that the .ur~r~~of Article 80 \,)was auite different
to u.li;it lia heen contcnclt;<rd docj not I~iidit;clfI>!an? rnrionnl
metliod of intc.r~rctation to support tli~ioiitcntioii advancecl. The
sole purpose of CheArticle was 16 prevent any provision of Chapter
XII of the Charter being constmed so as to alter existing rights
prior to a certain event '."

III. UNITED KATIONSRESOLUTIONS OF JANUARY-FEBRUAR 1946
PERTAINING TO ASSUMPTION OF CERTAINLEAGUEFUNCTIONS AND

ESTABLISHMEN OT THE TRUSTEESHIS PYSTEM

25. These resolutions and their history, as dealt with abovez, inthe
first lace clearlv demonstrate that the United Nations did not consider
itsclÎto be an iitoniatiz siiccessor in la!%t.oany Lcrigiicfunctinnj. ?nt1
cuiiicqueiitly th;iin its conteml)l.itioii thc :~isiiinptionand coiitiiiuatiori

' South West Africa. P,climinovy Olijeclions, JudgmcnI.C.J. Hcporls 1962.
p.5.6, footnotei.Vidrvlso dissenting opinioof Judge van Wyk at pp.6158.and
para.53 (6).(c! and Id),inIra.
VideChap. II,parw. 33-35, supra. SOUTH WEST AFRICA
130

of any League function by it would have to be a matter of active
arrangement. Indeed. in contrast with assets. which were to be "transfer-
red in terms of the mutuaily adopted "common plan"' the earh
idea of a "transfer" of certain functions and activities was abandoned
in favour of one of "assumption" by United Natiotis organs of certain
functions and powersl.
26. The second feature of importance is that in resolution XIV as
fmally adopted by the General Assembly on 12 February 1946~,the
statement of general willingness to ensure the continued exercise of
League functions was carefully limiied to functions O/ a non-political
churacter3.This would obviously not include the function of super-
vision regarding Mandates. The only portion of the resolution under
which such function could possibly fall would be Part 1, 3. C which
read as follows:
"C. Functions and Powers under Treaties, International Conven-
tions, Agreementsand OtherInstrlcmentsHaving a PoliticalChuracter
The GeneralAssembly will itself examine, or will submit to the
appropriate organ of the United Nations, any request from the
~arties that the United Nations should assume the exercise of
iunctions or powers cntnisted tothe League of Nations by treaties,
international conventions, ameements and otherinstruments having
a political charactcr '." - -

In other words. for the assumution of a su~ervisorv function reeardine
mand:ites. tlie procedure cnviiaged hy tl;e rcsolition would ~nvolv~
a "request from tlie partics" to, or IegaUy intertsted in. tti~respective
Mandates. and a dzcistoit~icc~,.iite thereotrasihv the Getier.il Assciii*lv
or other United Nations organ cgnsidered io be the appropriate one.
27. However, even in so far as the said Part 1, 3, C of resolution
XIV supplied a method whereby it might have been possible, at the
initiative of the varties to the Mandates themselves. to effect an assumv-
tion of supervi&ry functions in respect of an date by some unitid
Nations organ, it is apparent from its historv that it was not desimed
for this pürpose at ail-at any rate as far *asits proposers werecon-
cerned. For it will be recalled that the resolution was based on a re-
commendation of the United Nations Preparatory Commission, which
in turn had considered a prior repurt from its Executive Committee5.
The relevant portion of the Executive Committee's report, had stated.
inter dia, that-
"Since th,: <lucstionsarising Irorii the \rin<lingiip of th2 hland;lte
s).itcni are dealt with in Part 1II. Chaptcr1V,rior~.corniiieiidationon
this ,iibjecti, includetl here 5'"
"Part III, Chapter IV" as there referred to formed part of the history
leading eventually to resolution XI, adopted at the same Session of

'
C.A. Resoluiion XIV (r), iz Feb. ,946. in U.N. Boc. A/G4. pp 35-36; vide
Chap. Il, para. 34(c).rupro.
'Part 1, para.3.A and B of the resolution.
* U.N. Dac.A/fiq,p.35: videChap. II.para. 34 (c), supra.
' Vide Chap. II, parajq.supra.
DOC.PC/EXllr3/Rev. 1.izXov. 1945. p. ~ro. COUNTER-MEMORIAL OF SOUTH AFRICA I3I

the General Assembly, on g February 1946.The said "Part III, Chapter
IV" of the Executive Comrnittee's report dealt with the establishment
of the tmsteeship system. It will be recalled that a recommendation
was made therein for the establishment of a Temporary Tmsteeship
Committee, one of whose functions would be to-
"advise the General Assembly on any matters that might arise with
regard to the transfer to the United Nations of any functions and
responsibilities hitherto exercised under the Mandates System'".
The recommendation regarding establishment of the Temporary
Trusteeship Committee was, however, rejected by the Preparatory
Commissionz; and no other proposal regarding investigation of, or
inachinery for, the possible "transfer to" or "assumption by" the
United Nations "of any functions and responsibilities hitherto exercised

iinder the Mandates System", was substituted for the rejected proposal.
Resolution XI as adopted in effect merely urged expedition in the sub-
mission of proposed trusteeship agreements by "the States administer-
ing territories now held under Afandate3".
28. In adopting resolution XI the Assembly knew beforehand that
such proposed agreements would not be submitted in respect of aU
inandated territories. Express reservations had been made by the South
'Urican representative indicating an intention on the part of his Govern-
ment to refrain from placing South West Africa under United Nations
trusteeship and to seek recognition for incorporation thereof in the
Union'. From reservations made by the representative of the United
Kingdom, the future of the Palestine Mandate was known to be un-
certain 5. Furthermore, the Pacific Islands under Japanese Mandate
were occupied by the United States and no decision had been come
t~-~ ~ - ~ -ir fiitiire
In addition, the representatives of the United Kingdom and France
liad indicated that their Governments' willineness to lace certain
iuandated territories under United Nations tru$eeship dêpendedupon
their being able to obtain satisfactory terms 5.
That the Assembly was in fact aware that a number of States ad-
ininistering Mandates had no present intention of submitting trustee-
ship agreements. appears indeed from the text of resolution XI,
especially the followiug:

"... with respecttoChaptersXII and XII1 oftheCharter,theGeneral
Assembly :
3. Welcomesthe declarations. madeby certainStatesadministeiing
territories iiow held under mandate, of an intention to negotiate
trusteeship agreements in respect of someof thoseterritoriesand, in
respect of Transjordan, to establish its independence.
4. Invites the States administering territories now held under
mandate to undertake practical steps ... for the implementation of
Article 79 of the Charter 6." (Italics added Savefor the headingand
the words "Welcomes" and "Invites".)

' Doc. PC/EX/ii3/Rev. 1, 12Xov. 1945. p. 56.
' Ibid.. para35 (g).a. 35(c),supra.
' Ibid., para. 35 (d) and(e).
' Ibid., para. 3(f).
U.i\'. DocAi64, p. 13. Videalso Chap. II, para. 35 (g),supra.132 SOUTH WEST AFIIICA

The references to "certain States" and "some of tlzose territories" in
the first part of the resolution may partially have been inspired by
the absence of Japan (which was not a Member of the United Nations,
reference is made later in the resolution. Nevertheless in view of tlie
express reservations, inter alia, by South Africa, the resolution must
have been intended to refer thereto as well. In addition, the invitation
extended, in the second part of the resolution, to "the States adminis-
tering" mandates, to subniit trusteeship agreements. suggests that the
Geneial Assembly realized full well that there was a class of Manda-
tories which did not fall under the "certain States" which had made
declarations, but, which the General Assembly nevertheless hoped would
submit agreements l.

zg. In au the circumstances, the silence on the part of the United
Nations in regard to siipervision of Mandatory government is signi-
ficant. Its Members were aware that time would elapse before the
coming into effect of tlie trusteeship system, and that there was no
certainty that al1mandated territories would end up as trust territories
arrangement either). Yfor interim supervision (after dissolution of theal
League) regarding mandated territories until they should become trust
territories. or for anv su~ervision at al1 in resDect of mandated terri-
tories which might iot become trust territoriés. The United Nations
made elaborate provision for the "assumption" of certain League
functions and po\;ers, and for transfer to it Ôf League assets, knowhg,
however, that its resolution XIV in this regard was not designed for
supervisory functions in respect of 15Iandates (para. 27, s~pra). A
specific proposal envisaging investigation and recommendation con-
cerning possible "transfer" of "functions . . . under the mandates sys-
tem". was rejected and nothing substituted for it (para. 27, supra).
The inference seems inescapable that the omissioiis were deliberate.
It is highly unlikely that it would have been possible to achieve a
general arrangement applicable to al1 mandated territories, in view of
the widely varying circumstances pertaining to them and the differing
intentions of the hfandatory Powers in regard to their future-with
the result that the matter perforce had to be left to special arrange-
ment, if any, to be arrived at in each particular case.
However that might be, the contents and history of resolutions XI
and XIV clearly show that, at the time of their adoption, being shortly
prior to dissolution of the League of Nations:
(a) there had been no agreement express or implied between Re-
spondent and the United Nations and/or its hfembers whereby Re-
spondent consented to United Kations supervision regarding the
performance of its functions under the Mandate;
(b) the only provision made on the part of the United Nations where-
by such agreement could possibly come about, if at all, wasthat con-
tained in Part 1, 3,C of resolution XIV, envisaging a request thme-
for hy the interested parties and agreement thereto by a United
Nations organ; and

PP-537-538.uth WestAlricriPreliminary Obiecrions.Judgment, I.C.J. Reports 1962. COUNTER-MEMORIAL OF SOUTH :\FRICA '33

(c) in view of the repeated reservations made by Respondent, the

Members of the United Nations must have realized that the pros-
pects of Respondent being a party to such a special request were
remote.

30. The texts of the relevant resolutions that were adopted by the
1-eaye Assembly on 18April 1946 are set out above '.
As will appear from the Preamble of the resolution relating to assump-
lion by the United Kations of League functions and powers arising
out of international agreements2, the Assembly of the League had
"considered" the United Nations General Assernbl~ resolution XIV of
12 1'<.I>rnar1946 011th,: sanie ;iii>jc5'ïhç I.~ngii,r~soiiitioniiiqur.;tioii.
lidid the one foUo\r.ingulwii itancls~tout above '.spcciticall!. coiifincd
iticlf tu fiinctions. ~owcr; 2nd acti\.itics of a nu~i-poliircalrkiiracter.
:rnd contained prov.isions designed to facilitate as<umption of such
îunctions, powers and activities by the United Nations ni terms of its
resolution XIV; it remained silent in regard to functions and powers
:nising out of international agreements of a political character, as dealt
with in Part 1, 3, C of the United Nations resolution XIV. The inference
seems clear that the Leaye Assembly considered that that was a matter
in regard to which it had no role to play, and which was to be leftto the
ad hoctreatment envisaged by Part 1, 3, C of United Nations resolution
XIV. In other words, the League Assembly clearly knew that the United
Sations wished each case involving political functions to be dealt with
separately, by way of a request by the interested parties to the United
Nations and consideration thereof bv the United Nations General
.4ssembly orother appropriate organ; and if it contemplated or intended
rransfer of such functions to the United Nations in any other manner,
it could be expected to have said so.
31.This was exactly what had been contemplated in the first draft
proposa1 by China concerning mandatesS. The second paragraph of
the draft invited the League Assembly to express the view that "the
League's function of supervising mandated territories should be trans-
ierred to the United Xations in order to avoid a period of interregnum
in the supervision of the Mandatory regime". The third paragraph in-
vited it to recommend submission of annrralreports bythe Mandatorres
Lothe UrciledNations until the Tmsteeship Councilshould beconstituted.
Here, then, was a proposa1 involving a course of action differing from
that contemplated in Part I,3, Cof the United Nations General Assembly
resolution XIV: instead of separate consideration by United Nations
organs of separaterequests fromparties interested in particlrlarMandates,
the proposa1envisaged transfertothe United Nations of supervisory func-
tions in respect of al1Mandated territoriesancl submission to the United
Xations of reports by al1Mandatories.

' Vidc Chap. II. paraç. 36-41.
' The Leaguearesolutio erroncously referstothe date as 16Feb. ,946
' Vidc Chap. II. para.40.
Vide Chap. II, para.qr (c).I34 SOUTH WEST AFRICA

It seems quite clear that such a proposa1 could not have obtained
the unanimous support required for a League Assembly resolution.
By reason of the reservation stated by South Africa in regard to South
West Africa-being, in effect, that neither a mandate system nor a
trusteeship system should in future apply to the Territory-the Union
could not support the original Chinese proposal'. Nor does it seem that
that proposal could have received the support of the United Kingdom,
which, in terms of the statement by its representative, reserved its
future intentions in regard to Palestinez. Furthermore. the reservation
by the representative of Egypt was to the effect that Mandates would,
in his Government's view, terminate with the dissolution of the League,
and that Palestine must in any event be considered to have outgrown
the need for being governed under mandate or trusteeship3: thus it
also seems most unlikely that Egypt could have supported the original
Chinese proposal.
32. In the light of the above considerations, the significance of the
fact that the original Chinese draft was dropped after informal dis-
cussions and replaced by an agreed draft, which was then unanimously
adopted, is self-evident. It wiU be observed that in paragraph 3 of the
resolution, as adopted'. the Assembly "recognizes"that on dissolution
of the League its functions with respect to mandated territories will
come to an end, and it "notes" the existence in the Charter of the
United Nations of principles "corresponding to" those of Article 22
of the League Covenant: but it says nothing in regard to transfer to
the United Nations of the League's functions with res ect to Man-
dates,or of assumption or continuation of such functions y the United
Xations. In paragraph 4 it expresses a contemplation of "other arrange-
ments" that may he "agreed between the United Nations and the
respective mandatory powers"; and as regards the interim period,
pending such agreement upon "other arrangements", it "takes note"
of the "expressedintentions" of those powers to continue-

"... to administer [the temtories] for the well-being and deve!op-
ment of the peoples concerned in accordance with the obligations
contained in the respective Mandates ..."=. (Italics added.)
In al1 the circumstances, the only inference that can be drawn is
that the omissions in the adopted resolution, as compared with the
original Chinese draft, were intentional. The author of that draft had
also envisaged an interim period, described by Dr. Liang on 9 Apr!l
1946, as follows: ". ..in view of the fact that the tmsteeship council
of the United Nations has not yet been appointed and waç not likely
to be set up for some time"6, and descrihed in the last paragraph ofthe
draft itselas "until the Trusteeship Councilshallhavebeenconstituted'".
It was specifically in respect of this interint period that the author of
the original draft wished "to avoid a period of interregnfrmin the super-

' Videtext ol statementut Chap. II. paraqr (b) (ii). supra.
VideChap. II, para. 4r (b) (i), supro.
' Ibid.. parqr (6).supra.
' Videtext atChap. II,para.41 (f),supra.
'L. of N.,O.J.,Spcc. Sup.Xo. 194,p. 58;Chap. II,para. 41 (c).supra.
' L. of N., 21çt Assembly,1st Comm.,su2nd.Meeting, provisionalrecord; Chap.
II. para41 (c).supra. COUNTER-MEMOR IFLSOUTH AFRICA I35

vision of the Mandatory regime" ', and consequently invited the Assem-
bly (i) to express the view "that the League's functions of supervising
mandated territories should be transferred to the United Nations"',
and (ii) to recommend "that the mandatory powers . .. shall continue
to submit annual reports to the United Nations" '.
Instead, as indicated above, the adopted resolution in respect of
such interim period confined itself to stating that the Assembly "takes
note" of "expressedintentions" "ta administer the territories"in a certain
manner. (Italics added.)

33. That the representative of China was himself fuiiy aware of the
significance of the contrat, appears from what he said upon introducing
the eventual agreed draft, on 12 April1946 2.as compared with his earlier
speechon 9 April19463. He emphasized (on 12 April) that the functions
of the League in respect of Mandates "were not transferred auto-
maticaliv" to the United Nations and that the Assemblv "should
thereforé take steps ta secure the continued application oc the prin-
ciples of the mandates system". But instead of movinf: from this foun-
dation to the earlier proposal "recommending that- the mandatory
powers should continue to submit annual reports ... to the United
Nations", he then stated that, as the Australian representative had
pointed out the previous day. the League "would wish to be assured"
as to the future of mandated territories. He referred to statements by
representatives of other Alandatory Powers, and described as "grati-
fvine" the fact that ali had "announced their intention to administer
t'jir?erritoncs iinder tlieir control in accordance with their ohlig~tions
un~lcrtlic mandate s!,stem until orlier arraiigcments \\.ercagreed upoii".
llis commr:nt on thv iubstanze ~ ~ ~ ~~ innttcr concliidcd tliat "it\vasto
be hoped" that "the principles of trusteeship underlying the mandate
system" "would" be applied to the territories "in full" by "the future
arrangements lo bemade".
Clearly then. the conclusion is inescapable that there was in the final
result a deliberate refrainment from attempting to secure a general
transfer to the United iïations of League supervisory functions in
respect of mandates not converted into tmsteeship, and even fr0m
attempting to secure a recommendation that reports should in respect
of such mandates be rendered to the United Nations.
34. In sum: The subject of possible United Nations supervision re-
garding mandates not converted into trusteeship had not been treated
as something generaliy understood sa as to "go without saying", but
an express resolution ta bring about such supervision had been sought.
by a proposer who later stressed that the League functions conceming
mandates "were not transferred automatically to the United Nations".
The obvious failure of the proposa1 to secure the necessary support for
an Assembly resolution thus rules out al1 possible basis of infemng
general tacit intent ta bring about such United Nations supervision. The
known absence of such intent is confirmed by the text of, and omis-
sions in, the resolution actually adopted, and by the speech of its pro-
poser.

' L. of N.,~1stAssemhly, rstComm., 2nd Meeting, provisional record: Chap.
II, para.41(c), supra.
Chap. II,para.41 (d), supra.
' Ibid.para.41 (cl.136 SOUTH WEST AFRICA

The intention must have been to Ieave to such "other arrangements",
if any, as may be "agreed" in each case, the possibility of the assump-
tion by the United Nations of supervisory powers in respect of mandates
not converted into trusteeship-in other words. to the ad hoc method
which was the only possibility provided for by the United Nations
General Assembly in Part 1. 3, C of its resolution XIV of 12 February
1946.
35. The above conclusions are further confirmed by the fact that
none of the "expressed intentions" of Mandatory States referred to in
paragraph 4 of the resolution, included an intention to report under
their mandates to the United Nations pending such "other arrange-
ments"; thev were confined to administration of the territories in ac-
curilancc wiili obligations rcg:irdiiig protection aiid pn,inution uf the
\vcll-bcii~gaiid <Ic\~elopnicntof thc inhabitaiits. and ccrtaiii of thc italc-
ments clëarlv suaaestëd tbat there would be no such reoortina vendi-. -
the "other akangëments". Thus:
(a) the statement of the South African representative pointedly re-
ferred to the "disappearance of those organs of the League con-
cerned with the superuision of mandates, primarily the Mandates
Commission and the League Councill, as something which would
"necessarily preclude complete compliance with the letter of the
Mandate" l: and immediatelv before. he had stated an intention
of contiiiue~l;idininistr:itiori dl>ythe LIIIOIIin :ici~r~Ian~~\vitlt the
obligations of the !dan<late. for tkiz ad\.anscinent and promotioii
of thc intcrcsts of the inhnbitnntj. "ireshc hu clonedurinrr the vast
six years when meetings of the 'Mandates Commission could'not
be held"' (and when reports were in fact not rendered).
.b, The Australian remes.ntative also stated. inter alia. that-
"After th,: disiolution ofthe I.ra@icof S:itions iiiirtlic cuii.eqiiciit
liy~ti.i~~liO/ithe Pert>iune>i.lIl.~~i./irson~niissio>~it, wilIic inipos-
stble toconliiiue rhe,>ra>idalessssle>nin ifse~ilirzr'." (Itnlic~adde<l.~
He further intimated that for'the interim, pendhg trusteeship, he
regarded Chapter XI of the Charter as being applicable,including the
limited obligation thereunder (i.e.) Art. 73 (e)) to supply to the
United Nations, for information purposes, certain statistical and
other information of a technical nature2. This necessarily excluded
contemplation of the more onerous obligation of reporting and
accounting as regards compliance with substantive Mandate obli-
gations and thus submitting to supervision '.
(c) The United Kingdom's intention was expressed as being ". .. to
continue to administer these tenitories in accordance with the
general principles of the existing mandates"'. (Italics added.)
An interesting light is cast onthe meaningintended to beconveyed
by the italicized words in the above quotation, by the Report of
the Special Committee on Palestine, extracts from which are quoted
above 5.One passage reads as foiiows :

'L. of M.,O.J., Spec. Sup. No.rg4,p. 33;Chap. II, para.qr (h) (ii), supra.
'Ibid.. p. 47: Chap. II, para. 4i (b) (ii), suprn.
' Videpara. 37 (b).inlru.
'1-.of N.,OJ.,Spec. Sup. Xo. 194. p. 28; Chap. II. para. 41 (b), suprn.
Vide Chap. II, para59 (c),supra. COUNTER-MEMORIALOP SOUTH AFRICA I37

"Following the Second World War, the establishment of tlie

Nations theonsfoiiowing year opened a new phase in the history of
the mandatory regime. The mandatory Power, in the absence of

internationalazrthoritya10wkich it might szrbmitreports andgenerallyno

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 representativedeclnred
that Palestine would he administered 'in accordance with the
generalprinciples' of the existing Mandate until 'fresh arrangements
had been reached' '." (Italics added.)
This was a report by an II-nation cornmittee, not by the United
Kingdom itself, but it seems most unlikely that this explanation could
have been given for the United Kingdom's statement had it not heen
obtained at the statement's very source.
36. In view of the above, the conclusion is clear that the relevant
resolntions of the Assembly of the League of Nations at its last session
did not embody any agreement, either express or implied, between Re-
spondent and the League and/or its Members, whereby Respondent
was rendered obliged to report or account to, or to submit to the super-
vision of, any organ of the United Xations relative to performance
of its fnnctions under 'he Mandate. On the contrary, the indications
point to a mutual understanding that, pending "other arrangements"
which may be "agreed" upon between the United Nations and Re-
spondent, there would be no such reporting or accounting or super-
visory authority. Such "other arrangements" could potentially, as f?r
as the League resolution was concerned, cover a variety of possihili-
ties, such as,
(a) recognition of a new status for the Territory. e.g., as was being
proposed by Respondent, or independence, or partition as in the
case of Palestine: or
(b) a ~r&eeshi~~a&&nent; or

(c) tC of its Assemhly's resolution XIV ofs, i12tFebruary 1946, of super-3.
vision regarding continned Mandatory administration of the Terri-
tory in pursuance of a request to that end.

37. The evidence shows that subsequent events never led to any
agreement whereby Respondent was rendered obliged to suhmit to the
supervision of any United Nations organ.

(a) "Other arrangements", as contemplated by the resolution of the
last League Assembly, were never "agreed" upon between the
United Nations and Respondent. The United Nations was not
)repart!d toapet: to ail ~rraiixt:iiii~iitwlit:ri:l>yrecognition \r'i>lild
bc bcn to incorporation of South \\'est.\fr~ca in th,: Ilnion,iiot0
other propos;ilssubsc.qu<;ntlymade '.011 tlie othcr Iiiiiid.licspundc.ii~.

' C.A.. O.R.SecondSesr., Sup.So. II,Vol.1 (A/364).pp. 26-27.
Vide Chap.II,paras.43-40, Giff.138 SOUTH WEST AFRICA

for the reasons explained above, wasmt prepared to agree to trustee-
ship for the Territory l.And there never was, in terms of Part 1,
3, C of the United Nations General Assembly's resolution XIV of
12 Febmary 1946, any "request from the parties", or agreement
thereto by any United Nations organ, as to "assumption" by the
United Nations of supervisory functions regarding continued Man-
datory administration of the Territory.
(b) Chapter II above 2,deals with the history of Respondent's under-
taking, later withdrawn, to submit statistical and other information
such as mentioned in Article 73, paragraph (e), of the Charter.
Article 73 (e), where it applies as a matter of law, does not involve
an obligation ta submit to "supervision". The whole of Article 73
comprises a counterpart in amplified form of Article 23 (b) of the
League Covenant, in respect of which, as indicated above, no
obligation concerning supervision applied '. The same situation was
intended to apply in Article 73 of the Charter; and it is to this end
that paragraph (e) thereof emphasizes that the transmission is to
be "for information purposes" 4.
In the present case, there was a purely woluitlary undertaking ta
fumish information "in accordance with" or "on the basis of" Article 73
(e): coupled with an express denial of liability to submit to United
Nations supervision, and with an understanding that the information
was not to be dealt with as if a trusteeship agreement had, in fact, been
concluded" Inasmuch as the United Nations neither acce ted nor
observed the conditions attached ta the undertaking, in whicR circum-
stances the undertaking was withdrawn, there was never any consensus
ad idem or agreement, express or implied, even as regards the fumish-
ing of information in accordance with Article 73 (e), much less as re-
gards Respondent being obliged to submit ta supervision on the part
of the United Nations.

38. During the years immediately after establishment of the United
Nations and the dissolution ofthe League, the practice of States showed
a general understanding that the League supervisory powers in respect
of Mandates had not been transferred to, or assumed by, the United
Kations.
As appears above7, Respondent expressed its attitude very clearly
bath before the Fourth Committee and before the General Assembly
during the period September to No\rember 1947,ta the effect that Ke-
spondent was not obliged ta conclude a trusteeship agreement for
absence of a truçteeship agreement, the United Nations had no "right

' Vide Chap. II. paras. 43-53.
Ibid.,paras. 44-54,
*'PVide Hall, op. cit.. pp. 285-286, 288.289,
' Vide Chap. II, paras. 44, 48-51. supvn.
Ibid.. paras. 48-49. 51.
' Vide Chap. II, para48-49. Vide also para. go COUNTER-MEMOR IAFSOUTH AFRICA '39

of control or supervision' or "supervisory jurisdiction2in respect of
South West Africa. At that time the United Nations consisted of 57
Members, of which 51 had been original Members. Of the 51,31 had
been Members of the League at the time of its dissolution and 34 had
been originalhlembers of the League. Had these States or any of them
disagreed with Respndent's contention that the supervisory functions
of the League had not been transferred to the United Nations, one would
have espected them to have contested it, particularly if they had been
parties to an agreement, express or implied, concluded the previous
year and providing for such a transfer.
39. In fact, representatives o41 States addressed the various organs
of the United Nations on the question of South West Africa during
1947 ,z'tutno stagedid any of themauerthe existenceof any suchagree-
meril or suggest that the supervisory functions of the League had passed
to the United Nations on any other basis3. On the contrary, at least
14 of the 41 States who took part in the debates, acknowledged either
expressly or by clear implication that, in the absence of a tmsteeship
agreement, the United Nations would have no supervisory powers in
respect of South West Africa. These 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 4.
During 1948 and 1949 our additional States associated themselves
with this view, viz., Canada, Costa Rica, Greece and the United King-
dom 5.
Up to 1949 18States therefore expressed the view that in the absence
of a trusteeship agreement, the United Nations would have no super-
visory pwers with regard to South West Africa. If South Africa is
aclded, the number is increased to9.
Whereaç there had been no contradiction in 1947 ,ive States adopted
a contrary attitude in 1948 and 1949~ . hey were Relgium, Brazil,
Cuba, India and Uruguay. Cuba, India and Umguay had previously
taken UD a different attitude as indicated above: and India did soaaain.
in itsGitten statement to this Court in the 1950 proceedings relating
to thestatus of South West Africa7.
As will be seen from the extracts auoted above8. none of these States
relied on any agreement (other than Art. 80 (~jof the Charter) hav-
ing been concluded during the transitional period 1945-1946.
40. Also in respect of other mandated territories, the practice of
States UD to 1aa8 shows a clear understandine that the United Nations
would have n; ;upervisory powers over the uadministration of a man-
dated territorv not placed under trusteeship. This understan- -a appears
from the folliwing?

l'ide Chap. II, p48..
Ibid.. pa40.
Ibid., para. 57 (b)and (c).
' Vide Chap. II. para. 58.
Ibid.. para. 60.
' VideInternationallntus of South-West Africa, Pleadingr.
Docunienfs, 148.Vide also Chap. II. para. 60,supra.
aChap. II, para. supra. COUSTER-ME3lORIAL OF SOUTH AFRICA 141

on South West Africa in that year and New Zealand had adopted
a similar view in relation to \I'estern Samoa.
(b) Over the years 1947 to 1949, at least 24 States Afembers of the
United Nations (other than Respondent) in participatiug in debates
in the organs of the United Nations, or in expressing views in its
agencies, whetlier relative to the Mandate for South West Africa
or to other Mandates, such as Palestine and the Japanese hlandated
Islands,either expressly or by clear implication acknowledged that,

in the absence of a trusteeship agreement, the United Nations would
have no supervisory powers over a mnndated territory. These States
were: Australia, Canada. China, Colomhia, Costa Rica, Cuba,
Czechoslovakia, France, Greece, Guatemala, Tndia, Iran, Iraq, the
Netherlands, New Zealand. Pakistan, Peru, the Philippine Repub-
lic. the Soviet Uiiion, Sweden, the United Kingdom, the United
States of America. Uruguay, Yugoslavia 1.
(c) Up to 1949 only iive States voiced any contradiction to the pro-
position aforestated. These States were Belgium, Rrazil, Cuba, India
and Uruguay. In the case of the lastmentioned three States, the
attitude adopted by them in 1948 aiid 1949 was in conflict with
their earlier contentions, and in the case of India also with its
coiitentious before this Court in 1950. And in no case \vas the con-
tradiction based on a suggested agreement or understanding (other
thaii Art. 80 (1) of the Charter) arrived at during the period
7945-1946.
(d) At iio time up to 1949 was any such contradiction voiced by any
one of the two Applicant States, Liberia or Ethiopia.

42. The understanding which emerges from the above circiimstances,
and in particular the written and oral statements made on behalf of a
large number of States, Members of the United Nations, in a variety of
circumstances and situations, and within a relatively short time after
the establishment of the United Nations and the dissolution of the
League, when the events were still reasonably fresh in memory, in
Respondent's submission effectively refutes any suggestion of agreement,
express or implied, as between Members of the United Nations or other
interested parties to the effect that Mandatories would be subject to
United Nations supervision in respect of Mandates not converted into
trusteeship 2.

43. The majority of the members of the Court in 1950 came to the
conclusion-
".. . that the General Assembly of the United Nations is legally
qualified to exercise the supervisory functions previously exercised

' Videparas. 39 and 40.supra. In the yearr 1947. 1948 and ,949. the Alembers of
the United Sations totalled. respertively. 57. 58 and 59.
' Similarly. in Respondent's submission, these discussions clearly refute any
suggestion that such an obligatioarme out ofï term tobe implied in the hlnndate
instrument (para.17. supra). In this regard it must be-noted that 18 of the 24
States who expresscd the view during 1947 to 1949 that the United Nations did not
succeed to the supervisory functions of the League in respofhlandateç. had been
of its dissolution. the League of Sations, and 17 had been hlembers at the time142 SOUTH WEST AFRICA

by the I.ç~&weof Sations with regard to the administration of the
Territor!.. and that tlie Ciiioii of Suiitli Africa ii under an ohlig:ition
IO subriiit to supervision a~d control of flic (;~nçrdI Asjcinbly and
to render aunual reports to it 1".
At the next page of the Opinion followed a consequential conclusion
regarding petitions, viz. :
"In view of the result at which the Court hasarrived with respect
to the exercise of the supervisory functions by the United Xations
and the obligation of the Union Government to submit to such
supervision, and having regard to the fact that the dispatch and
examination of petitions form a part of that supervision, the Court
is of the opinion that etitions are to be transmitted by that Govern-
ment to the Genera f'Assembly of the United Nations, which is
legally qualified to deal with them 2."
The Court's reasoning in support of its above main conclusion, is
set out at pages 136 to 137 of the report. It commences with a recog-
nition of-

"... the fact that the supervisory functions of the League with
ship System wereneither expressly transferred to the United Nations
nor expressly assumed by that organization 3".

Then foliow what in the Court's words "nevertheless, ... seem to he
decisive reasons" for its conclusion. These can briefly be summarized
as follows:
(i) The obligation to accept "international supervision" and to sub-
mit reuorts isan imbortanl bart of the mandate svstem+onsidered
by théauthors of thé~ovenkt to be reguiredforaectiue performance
of the sacred tmst, and similarly regarded by the authors of the
Charter relative to the international tmsteeshiv svstem. The
",iecess,tyfor snp~rvision"cannot bc admitiéd to hsve(1iîa~pcared
"merel!. I)ecause the supcr\~isoryorgin hu cr^sed to cxijt , wlieii
tlie Unitcd Sations lias anothcr in1,~rtintiuiialorriau vcrAormine -
similar, thongh not identical, supervisory functions.
(Ü) "These general considerations" are confirmed by Article 80 (1)
of the Charter, which cannot "effectively safeguard the rights of
the peoples of mandated territories without international super-
vision or a duty to render reports to a supervisory organ.
(iii) In its resolution of 18April 1946, concerning mandates, the As-
sembly of the League of Nations gave ex ression to a "correspond-
ing view". In the Court's view "this resohon presupposes that the
sarpervisoryfunclions exercisedby the Leaguewould be taken over by
the United Nations" '. (Italics added.)
(iv) The General Assembly of the United Nations is rendered compe-
reports by ArticleucIOsof the Charter.to receive and examine such

' Inier~raiionnlSlotur ofSouth-Wcsl Africn, Advirory OpinC.J. RLPOII1S950.
P. 1Ibid., p. 138.
Ibid.. p. r36. COUNTER-MEMORIAL OF SOUTH AFRICA I43

It seems evident that the Court could not have meant that each of
the above four "reasons", or stages in the reasoning, was to be regarded
as in itself affording full justification for the conclusion arrived at.
So, for instance. stage (iv) is concerned merely with the determina-
tion within the United Nations of an organ which would be competent
to undertake the supervision: but this would have no relevance in the
enquiry unless there should be an obligation to submit to United
Nations supervision. Stage (iv) clearly proceeds on the basis that such
an obligation has been affirmatively established by the first three stages.
44. The first stage in the reasoning is described in the Opinion itself
as embodying "general considerations". As noted above. they relate
to "effective performance" of the "sacred trust of civilization". At
the outset the learned judges state in effect that the authors of the
Covenant considered that international supervision of Mandatory ad-
ministration was necessary for such effective performance; that the
authors of the Charter had in mind the same necessity relative to the
trusteeship system; and that such necessity continues to exist despite
disappearance of the supervisory organ under the mandate system.
These statements are clear, and were apparently meant to supply a
basis for possible application of the principle of effectiveness, in the
sense that there can be said to be a presumption or general likelihood
that the interested parties would have intended to keep alive, after
dissolution of the Leame. an oblieation on the art of Mandatories to
submit to international supervision regarding fiandatory administra-
tion. In other words, the consideration of effectiveness was invoked as
a factorin reasoning towards a possible implication of tacit agreement '.
The next general consideration is the existence within the United
Xations of an organ performing supervisory functions-for which
reason it cannot be "admitted that the obligation to submit to super-
vision has disappeared merely because the League supervisory organs
have ceased to exist. The suggestion seems to be that, in the light of the
consideration of effectiveness already stated, the interested parties might
should be continued by this new organ. Again this is reasoning by in-tes
ference relative to tacit intent.

45. Clearly the "general considerations" were not considered conclu-
sive. If they should be read as purporting to be full justification, by
themselves, for the Court's conclusion in question, they would have to
be ,interpreted as meaning in effect that because international super-
vision is desirable. therefore the Court holds that it must exist; and,
functions under a trusteeship system, which are similar to, though not
!dentical with the supervision previously exercised bythe League organs
in respect of mandates. therefore the Court holds that a Mandatory
previously obliged to submit to League supervision must now be obliged
to submit, in ,respect of its Mandate, to supervision.of the United
Nations organ (despite the fact that the Mandatory is not obliged and
may not be willing to submit to the trusteeship system). If this were
what the Court intended to signify, it would mean that the Court in
effect forsook its function of deciding in accordance with law and

' VideChap.III. parus.27-jO.supra.'44 SOUTH WEST AFRICA

assumed the role of a legislator. Clearly such an interpretatiou of the
Court's reasoning cannot be justified. The Court could hardly have
ignored the universal principle of law and logic that a party which
consents to an obligation of a certain. content, cannot, merely for that
reason, and without fresh consent or agreement on its part, be held
iiable to an obligation of a substantially different content '.
Nor does it seem that the Court could have intended to apply the

principle that an obligation is not extinguished by impossibiiity of per-
formance when the impossibility affects only one of two or more equiv-
alent methods of comuliance therewith. That ~rincivle clearlv cannot
iiiidJ~>~)~I~~:LIIUIitlic prc>t,nriajc, furrlit\.,:r!.r;ii;on Îli:rlitnblig;itioii
\rd, iior ont: IO siihniittt)'iiitcrii~ti~ii;~lupcr\i~iuii' biit 10 II.? sp,.c;iiic
~iii><:r\i;ioiiof irdrtiiiil.rr I.c~.i-iitorc~iii.. .5iibiiiis;iuiito I.'iiitcd Sations
su'pervision wÔuld thus be avdifferënt obligation in substance as weii
as in form, and not a mere equivalent method of complying witb the
same obliea-ion. That there were certain inhereut and unavoidable
iIiif<~r~iict~n~p.cari to h.i\~ I>icniickiitnivledgcJb!. th<.iiiajority t,ftlic
t.'uurtin ri.? 1955.AcIviwryOpiiiiui~pnrticiil;~rl\. in rlirfollo~vi~ipga;>:~ge:

"The voting system is related to the composition and functions
of the organ. It forms one of the characteristics of the constitution
of the organ. Taking decisions by a two-thirds majority vote or
by a simple majority vote is one of the distinguishing features of the
General Assembly, while the unanimity rule was one of the dis-
tineuishin~ features of the Council of the Leaeue of Nations. These
tw8 syster;is are characteristic of different organs, and one system
cannot be substituted for the other without constitutional amend-
ment. To transplant upon the General Assembly the unanimity
rule of the Council of the League would not be simply the introduc-
tion of a procedure, but would amount to a disregard of one of the
characteristics of the General Assembly. Consequently the question
of conformity of the voting system of the General Assembly with
that of the Council of the League of Nations presents insurmount-
able difficulties of a juridical naturez."

In the result it seems evident that the first stage in the reasoning
should be interpreted as not having been intended to be conclusive
in itself but merely as affording indications of probability which,
together with other relevant factors, could justify an inference of tacit
agreement rendering Mandatories obliged to submit to United Nations
supervision.
46. The second stage in the reasoning refers to Article 80 (1)of the
Charter, and holds that the general considerations are "confirmed" by

this clause "as .. . interpreted above". These last words relate to an
earlier passage which distinyishes the actual content of the clause from
something "presupposed" by it, namely that the rights of States and
peoples regarding mandates would not lapse automatically on dissolu-

'
Vide para. 21, s~pva, as to the material difference in form and substance
betupen an obligationto submit to League supervision in respect ofMandates and
one to submit to United Nations supervision.
TevriforyO/ SouthdWestoAfrica. AdvisorylOpinion,eZ.C.J. Re9orts 1955, p. 75.iwg tlie COUNTER-MEMORIAL OF SOUTH AFRICA I45

tion of the League ';the eariier passage proceeds that "it obuiouslywas
the inte~ltionto safeguard the rights of States and peoples under ali
circumstances and in al1respects, until each territory should be placed
under the trusteeship system z". (Italics added.) The reasoning re-
garding supervision 3 then proceeds by stating that the "purpose mus1
have been to provide a real protection for those rights; but no such
rights of the peoples could he efectively saleguarded without inter-
national supervision and a duty to render reports to a supervisory
organ"'. (ltaiics added.) Again, therefore, the presupposition, the
obviousintent and the pur osereferred to unexpressed, i.e., tacit intent,
and the effectivesafeguar ftng was employed as a factor of probabiiity
in reasoning towards an implication regarding such intent.
Applicants contended in their argument on the Preiiminary Objec-
tions, that the Court's reasoning in the 1950 Opinion should be read as
holding that Article 80 (1)by itself resulted in a transfer of the League's
supervisory functions to the United Nations '.It is clear, however, that
Article 80 (1) cannot be interpreted to achieve such a result % Conse-
quently, Applicants' contentions in this respect did violence both to the
language of Article 80 (1) and to the reasoning of the Court in the 1950
Opinion.
47. The third stage in the reasoning concerns the last League Assem-
bly resolution regarding hlandates6. After giving the contents of its
third and fourth paragraphs, the Opinion States the conclusion: "This
resolution presufifiosesthat the supervisory functions exercised by the
League would be taken over by the United Nations7." (Italics added.)
Once more the reference is clearly to an inferred, tacit intent: the word
"presupposes" renders this clear, as also the fact that the resolution
itself made no mention of any transfer or taking over of supervisory
functions.
48. To sum iip, the Court was arguing from what it considered to be
probabilities inherent in objective features referred to by it in the first
tivo stages of its reasoning, and seeking to draw from these probabili-
ties an inference of tacit agreement between the parties to the Charter
of the United Nations to the effect that hfandatories would be obliged
to submit to the United Nations supervision, pending trusteeship or
other agreement with the United Nations. And, in the third stage of 1:s
reasoning, it sought to draw a similar inference of a corresponding tacit
agreement on the part of the Members of the League of Nations at the
time of its dissolution. Respondent contends that neither of these in-
ferences could have been justified or would have been drawn, had the
Court been fully informed of ail the relevant facts.
In his judgment in the case of Nez v. Blom, Judge Watermeyer, a

' Infernalional SlatuO/Sor'fh-West .4/rira, Aduisovy Opinion. I.C.J. R~p1950.
PP. '33.134.
Ibid., p.134.
' Ibid.,p. 136.
' Ibid. pp. 136.137
Vide para. 24,supra.
For itstext.vide Chap. II. para.41 (1).supra.
' Infernalional Slali's ofSot<fh-IVerfAfrica, Aduisory Opinion, I.C.J. R1950.s
P. '37. 146 SOUTH WEST AFRICA

South African Judge of Appeal and later Chief Justice of the Unioii.
stated as follows:
"In reasoning by inference there are two cardinal rules of logic
which cannot be ignored:

(1) The inference sought to be drawn must be consistent with al1the
proved facts. If it is not, the inference cannot be drawn.
(2) 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 '."
These t les of logic are clearly of general application. In particular
thev are a~A Aedbv Courts of civilized States to the auestion whether a
tach agreement, O; a taut term in an express agreement, can justifiably
be inferred or implied in a given case.
As pointed out above. a term may be inferred or implied only where
it arises necessarily or inevitably from the relevant facts, in the sense
that al1other reasonable inferences are excluded 2. From this it follows
that the term sought to be implied must be capable of formulation in
substantiaiiy one way only ). If the content of the term sought to be
implied is doubtful, then one cannot conclude that the parties tacitly
agreed on anything at all.
When regard is had to these principles and logical considerations, it

isself-evident that in the absence of knowledge of certain relevant facts,
a conclusion arrived at in reasoning by inference may be vitally different
from what it would be if ali the facts were known and considered. Three
sets of facts which were not before the Court in 1950 and are of parti-
cular importance in this regard, are dealt with in the next succeeding
paragraphs.
49. The majority conclusion as to the presupposition involved in the
last League resolution on Alandates', was an integral part, if not the
crux. of its reasoning in concluding that the League's supervisory
functions had by tacit agreement been transferred to or assumed by
the United Nations. But the introduction of the tacts concerning the
original Chinesc pr@osal>, which were not before the Court in 1950,

puts a completely different complexion on the tacit intentions of the
League Members at the last Session. It shows that wliat the Court
considered to be a presupposition or tacit understanding, had been
sought to be achieved by express resolution, but that the proposal to
that end could not be proceeded with because it became plain that
certain of the parties would not agree thereto 6.

'Re* v. Rlom. 1939 A.D. 183.at pp. zoz-203.
Vide Chap. III, para24. supra.
' Ibid.. para.25 (a).
' Videka. 47,supra.
' Vida Chap. II, para. 41(c)and para. 3,. supra.
It is instructive to note tclose similarity between the wording of the presup
position or tacit understanding found by the Court, and the express terms of the
first Chinese draft proposal. The~ggo majority opinion stated that the resolution
. ..uu~osed that:
". ..the supeniirory funclions excvcired by the Lcngue would htokenovn by Ihr COUNTER-JIEMORIAL OF SOUTH AFRICA '47

This not only destroys al1 possibiiity of finding in favour of such
]>resupposition: it also throws such light on other aspects of the final
League proceedingsl as to render clear a contrary understanding on
the part of the League Members, viz., that there would be no reporting,

accounting or supervision pending "agreement" upon "other arrange-
inents" as between each Mandatory and the United Nations. In turn,
rhis contrary understanding in itself effectively rebuts the presumptions
ior probabiiities regarding effectiveness, as reiied on in the majority's
reasoning concerning the "general considerations" and the "purpose"
*ofArticle 80 (1) of the Charter 2.For the majority of the League illem-
bers, including al1Mandatories except Ja an, had been involved in the
acstablishmentof the United Nations and t f eagreement upon its Charter.
iîonsequently their understanding at tliat time could hardly have been
the op osite from what it was shortly afterwards at the dissoliition
of the Eeague.

50. The last-mentioned factor, bearing on the tacit intent of the found-
ers of the United Nations, is enhanced by the second set of facts not
known to the Court in 1950,i.e., that there was an expressproposalt/ial
the suggested Ternporary Trusteeship Contmitlee mas 10 be empowerecl
to "aduise the General Assembly on any mntlers that might arise wilh
reja~d,to the trnnsjer to the United Nations of nny /t&nctionsand respon-
si zlztzeshzthertoexercisedunder the maiidalessystem "' (italics addcd)-
which roposal lapsed upon the rejection of the suggestion of a Tempo-
rary # nisteeship Comrnittee, without the substitution of anything

regarding possible transfer to, or assumption by, the United Nations
ofany "functions under the mandate system" 4.
51. FinaUy. as regards the tacit intent of the United Xations founders
as weUas of League Members at its dissolution. regard must he had to
the third set of facts not before the Court in 1950, Le., the prffilice oj
States during the years 1946 ta 19@ and reflected, inter nlin, in written
and oral statements made on behalf of a large number of States in a
variety of circumstances and situations, and within a relatively short
time after the establishment of the United Nations and the dissolution

United Satioflr". (Italicî added.) (InternationalStalur of Sot'tl8-LVeV Alrira,
Aduisov.~Opitrion, I.C.J. Reports rgp. p. 137.)
The Chinese dralt proposal had considered:
". .. thaf the Leogue's ft'ndioof supeniising »rondalrd terrilories should be Irons-
terred to the United Notions . .." (Italicç addcd.) (Vide Chap. II, para. 41 (c).
st'p~a.)
'As dealt with in Chap. II, para. 41,supra. and in this Chapter, paras. 30-36.
supra.
Virle para46, supra.
DOC.PCiEXl~i3iRev. 1... "6.
+ Vide Chap. Il, &a. 35 (a),(b) and (c).supra, andpara. 27, stipra. The text
of the powers regarding Mandates proposed to be exercised by the Ternporary
Trusteeshiv Cornmittee. was not befare the Court in ioio.nor was anvreference to
these vroÙosed Dotvers made in the written or oral r>&eedinrç. ~hat there was a
suggeStioi to ha;^a Ternporary Tr~steeship ~ornrnitiee, whichwas later abandoned.
does appear from the staternent made by Dr. Ivan S. Kerno,the legal officer of the
United Nations, which a..ears in Inl~rnotionol StofirofSoufh-West Alrica. Plead-
in@, Oral Argumenfs. Doct~ments, at p. 161. but, aî aiready stated, without any
relerence to the powers regarding &Ilandates proposed to be exercised by such
Cornmittee. 148 SOUTH WEST AFRICA

of the League of Nations, when the events were stiil reasonably fresh
in memory '.These statements show unmistakably ageneral understand-
ing amongst filembers of the United Nations that no supervisory func-
tions regarding mandates (not converted into tmteeships) had been
taken over, and thus refute any suggestion of a general tacit intention
to the contrary.
Had the above facts been known to the Court in 1950, it seems in-
conceivable that it could have amved at its conclusion regarding an
obligation ou Respondent's part to submitto United Nations supervision.

T'III. DISSENT FROJI THE 1950 OPINION CONCERNING SUPERVISION

52. Minority Opinions.
Even on the basis of the facts before the Court in 1950, two of its
'members, Sir Arnold McNair and Judge Read, were not prepxeù
to subscribe to the finding that Respondent is obliged to submit to a
supervisory power on the part of the United Nations, and they gave
full reasons for their dissent 2.As far as Respondent is aware, these
reasons and the conclusions drawn from them have invited no adverse
criticism from writers on international law. On the contrary, they
find considerable support in the critical comments of such writers-as
will appear from paragraph 53 below. Furthermore, the additional
factual information now brought into consideration3 coufirmsthe correct-
ness of the result arrived at in tliese minority opinions.
j3. Opinions O/ Writers.
(a) Even before the rgjo Advisory Opinion, Hall, in dealing with
the effectof the dissoliition of the League upon Mandates, stated.
inter alia:
,,... the supervisory functions of the League had come to an end
before the supervisory functions of the United Nations could
begin to operate, es eciaUy since the plan for a temporary tystee-
ship committee ha $ been rejected in the Preparatory Commission
of the United Xations '".
In referring to the original draft resolution raised by the Chinese
delegate at the last session of the League Assembly, which waç not
proceeded with, he quoted the Chinese delegate as saying that,the
Charter "made no provision for assumption by the United Nations
of the League's functions" under the mandate system5.
And he commented finally in regard to the League Assembly
resolution of 18April 1946:
"The sipificance of this resolution of the League Assembly
becomes clearer when it is realized that for manv months the most
elaborate discussions had been taking place bëtween the govem-
ments as to the exact procedure to be adopted in making the
transition between the League and the United Nations. It was the

'Vide paras. 38-42s.upra.
InternafionnlStatus ofSor<th-WsstAfrica, Advisory Opitzion. I.C.1950,ports
pp. 159-1621,66.173.
' Vide paras49-51.supva, and earlier paragraphç there referred ta.
'Hall.op. cil.. p. 272.
Ibid., PP. 272-273. COUNTER-MEMORIAL OF SOUTH AFRICA '49

function of the Preparatory Commission and the committees suc-
ceeding it to make recommendations on the transfer of functions,
had beenescarefully tabulated. Ail its rights and obligations that
could be bequeatlied to the United Nations and which the latter
desired to take over were provided for in the agreements that were
made. But in the case of mandates, the League died without a
testament '."

(b) In January 1951, very shortly after the 1950 Advisory Opinion,
Manley O. Hudson \note as follows:
"TO sup >ort its additionai conclusion that the Union of South
Africa is oiliged to submit to the supervision of, and to render an-
nual re orts to, the United Nations, the Court relied upon a resolu-
tion a2o'ted by the final Assembly of the League of Nations on
April 18, 1946, which was said to presuppose that the 'supervisory
functions exercised by the League would be taken over by the
United Nations'. This is hardly borne out by the text of the resolu-
tion, however. Nor is the succession of the General Assembly a
necessary conseqiience of its com8e8ence under Article IO of the
Charter to wliich the Court refers.
and,
"The Court seems to have placed emphasis on the competence
of the General Assembly to exercise supervision and to receive
and examine re rts. Such competence can hardlv be doubted.
Yet it does not Pol"w from the conclusion that the ceneral Assem-
bly 'is legally qualified to exercise the supervisory functions pre-
viously exercised by the League of Xations', that the Union of
South Africa is under an obligation to submit to supervision and
control by the General Assembly, or that it is obligated to render
annual reports to the General Assembly 3."
Regarding the applicability and effect of Article 80 (1)of the
Charter he remarked:
"Article80 (1)of the Charter seems to be the principal basis of
the Court's coiiclusion that the Union of South Africa must report
to the General Assembly. This article provided that, until the con-
clusion of Trusteeship Agreements, nothing in Chapter XII of
the Charter should 'beconstrued in or ofilself to alterin any manner
the rights whatsoeverof any states or any peoples or the terms of
existing international instruments' (italics supplied). The text clear-
ly shows an intention that Chapter XII should not effect any alter-
ation of rights or terms. This intention was 'entirely negative in
character'. The provision served an obvious purpose when Chapter
XII of the Charter was drawn up: the Mandate was stili in force
at that time: as the League of Nations had not then been dissolved,
any alteration of the existing situation was a matter for its con-
sideration. Article 80 (1)was a precautionary provision designed
to negative the accomplishment of any change in the existing

'Hall.op.cil.p.273.
(Jan.rssil.pp.1-36,atp. rj.y-ninth Year of the WoCourt" A..J.I.L., V45.
3 lbid...14.IV SOUTH WEST AFRICA

situation by reason of Chapter XII 'in or of itself'. It is not sur-
prising that Judge McXair found it 'difficult to see the relevance
of thii article'. -
Yet the Court gave an affirmative effect to Article 80 (1).turning
it into a positive 'safeguard' for maintaining the rights of States
and the ri~hts of ~eo~les of the mandated territorv. This is the
more notable becake'at a later stage the Court st;essed the 'en-
tirely negative' character of Article 80 (2).declining to say that
the latter imposed a positive obligation on the Mandatory even to
negotiate with a view to the conclusion ofa Trusteeship Agreement.
No attention was paid by the Court to the fact that certain
States, which as Members of the former League of Nations may have
'rights' under Article 22 of the Covenant and under the Mandate
itself, had no responsibility for the Charter and have never become
Members of the United Nations. For example, Finland, Ireland
and Portugal, which were represented at the final session of the
Assembly of the League of Nations in 1946,are in this category. If

their rights are 'maintained' by Article 80 (1)of the Charter, they
have no voice in the supervision to be exercised by the General
Assemhly '."
(c) In August 1951 ,ollowed an article by Joseph Nisot The learned
author stated, inter alia:
,Now, what, in actuality, were the rights derived by peoples from
the Mandate and from Article 22 of the Covenant? They were not
rights to the benefit of abstract supervision and control. They con-
sisted of the right to have the administration supervised and con-
trolled by the Council of the League of Nations, and, in particular,
the right to ensure that annual reports were rendered hy the
mandatory Power to the Council O/ the League of Nations, as it
was, and the right to send petitions to the Secretariat of the League
of Nations. What has become of these rights? They have neces-
sarily disappeared as a result of the disappearance of the organs
of the Leagu. (Co.ncil, Permanent Mandates Commission, Secre-
tariat).
The Court could not correctly conclude that such rights had been
maintaincd by Article 80, except by contending at the same time
that for the purposes of the Mandate for South West Africa, the
said organs had survived the dissolution of the League.
.. . Being unable, and for good reasons, so to contend, the Court
creates new rights. To the Court, the right of peoples 'maintained'
by Article 80 is linked to the United Nations Organisation ...
According to its thesis, it is because Article 80 'maintains' the
rights of peoples that these, though linked to the Leaye, must now
be deemed linked to the United Nations! To infer this from a
text worded as is Article 80 amounts to assuming that, with respect
to the mandates system, the United Nations stands as the legal

successor of the League, an assumption inconsistent with the dis-

' Hudson, op.cil., pp. 14.~5.
' Sisot, J., "TheAdili~o~y Opinion of the International Courtof Justiceonthe
International Status of South West Africa", S..I.L.J.,Vol. 65. Part 3 lilug.
r9jr).PP. 274-285. COUNTER-MEHORIAL OF SOUTH AFRICA 15~

cussions of San Francisco and with the very fact that the Charter
provides for the conclusion of tmsteeship agreements'."
. -
Kegarding the resolution of 18April 1946,of the LeagueAssembly,
he continued:
"... one fails to see how this statement can provide any support
for asuggestion that it was the Assembly's opinionthat a mandatory
Power, though not bound by a trusteesliip agreement, was under an
obligation to submit to supervision and control by the United
Nations.
This was no more the O inion of the Assembly of the League
of Nations than that of the & 'neral Assembly of the United Nations,
which, byits resolution of 9th Febmary, 1946,urged the conclusion
of trusteeship agreements, implying that no implementation of the
principles of the trusteeship system-therefore, no supervision or
control-was possible in the absence of such agreementsz."
In the final portion of this part of the article, Nisot referred to the
failure of the authors of the Charter:

"to provide for international supervision with respect to the obliga-
tions incumbent on a mandatorv State. should it elect not to con-
clude such an agreement." (i.e.; Trusteeship Agreement.)
He concluded:
"This lack of foresieht has resulted in the ~resent situation,
which the Court attem6ts itçelf to redress. steppfng out of its role
as interpreter of the law to assume that of leai-lator3."
(d) Georg Schwarzenberger commented, inter alia,as follows:

". . . the bVorld Court was faced with the issue of ivhether the
United Nations had become responsible for the discharge of the
supervisory function which the League had formerly exercised in
relation to the only still surviving mandate. In support of a positive
answer, the Court could neither rely on any general principle of
succession between international perçons nor any relevant trans-
action between the two collective systems. . .. The still missing
link with the United Nations was provided by the Court's inter-
pretation of Article 80 of the Charter of the United Nations. It \!.as
admitted in the majority Opinion that 'this provision only says
that nothing in Chapter ,XII shall be construed to alter the rights
of States or peoples or the terms of existing international instru-
ments'. Still, with the assistance of a somewhat debatable presup
position and 'obvious' intentions, the last gap was bridged. It 1s
not surprising that Judge McKair should have found it 'difficult
to see the relevance of this Article'.
Having fillecl the legal void which separated the supervisory
functions of the League of Nations from those of the United
Nations, the Court proceeded with its self-imposed task of 'judicial
legislation''."

' Xisot,op. ci,.p. 279
Ibid..p.280.
fbid.p..281.
' Schwarrenbergel, G..Infcr>rafionalLow(3rd ed.).Vol. 1. pplor-102.152 MUTH WLST AFRICA

Again the criticism of the majority opinion was possibly in a
large measure derived from the fact that certain materid facts
may well have been knoivn to some of these writers whezeas the
Court was unaware thereof in 1950.

IX. ADVISORS OPINIONS OF 1955 AND 1956

54. On 7 June 1955 and I June 1956 this Court gave Advisory
Opinions interpreting the 1950 Opinion. The 1955 Opinion concerned
voting procedures on questions relating to reports and petitions re-
garding the territory of South West Africal. The 1956 Opinion related
to the admissibilitv of hearineu of ~etitioners bv the Committee on
South West Africa :.
In both cases this Court was asked only for an interpretation of
the rgjo O inion, and consequently its corrèctness was nof considered.
The later &inions are, however, significant in one respect. The diffi-
culty experienced by the Court, particularly in 1956, in determining
exactly what had been decided in 1950 regarding supervision and what
the ratio of such decision was, indicates, in Respondent's respectful
submission, that the Court in 1950 was not able, on the information
before it, to formulate with precision the implied agreement considered
to have been entered into during the years 1945-1946. In the result,
doubt must attach to the correctness of the implication even on the
information then before the Court 3, The further information now
presented, however, in Respondent's suhmission, establishes clearly
that no such implication is warranted.

jj. Although the question whether Respondent's obligation to re-
port and account to the Council of the League survived the League's
dissolution, \vas not $67 se an issue to be determined for the purpose
of the Preliminarv Obiections. it was extensivelv areued bv both
Parties. This was'd~ne'~rimaril~ because of the natu; of thé main
argument advanced bv Applicants on the issue whether there were
stiïl in existence any Statëi competent to invoke the compromissory
clause. That argument was to the effect that on dissolution of the
League a succession was effected of the functions and rights of the
League and its Members in favour of the United Nations and its Mem-
bers, and that the right to invoke the compromissory clause was thus
ke t alive in favour of Members of the United Nations '.
Rowever, although eight Members of the Court held that the right

of Members of the League to invoke the compromissory clause was
not terminated by the dissolution of the League. it is significant that
not one of them was prepared to accept Applicants' argument relating
to a succession by the United Xations and its hfembers.

' Voting Procedure on Questions velalin; to Reports and Petitioizs concerning fht
Tevrilory of South Wert Africa. Aduisory Opinion. I.C.J. Reportp.67.5,
Admissibility of Hearincs of Petitiohythe Commiftee on South Wert Atrico.
Advisory Opinion,I.C.J .eports 1956p. 23.
' Vide Chap. III. para25 (al. supra.
* Vide Oral Profeedings. 2Oct. 1962.'54 SOUTH WEST AFRlCA

the intentions of its founders. It would have amounted to what
has been cded the 'freezing' of the Mandate, which would practi-
cally be equivalent to annexation '."(Italics added.)
Respondent does not propose dealing with Judge Bustamante's con-
clusion regarding an obligation to conclude a trusteeship agreement.
This conclusion is contrary to the finding of the Court in the 1950
Advisory Opinion, and Applicants do not rely on any such obligation,
nor have they contended that the Court was wrong in this regard.
Kespondent does, however, wish to emphasize that Judge Busta-
mante's reasoning is based, inter alia, on the absence of supervision
if no trusteeship agreement is concluded.

57. DissentingOpinionofJudgesS9enderand Fitzmaurice.
In their joint dissenting opinion, Sir Percy Spender and Sir Gerald
Fitzmaurice clearly reveal that in their view the 1950 Opinion was
wrong in finding that the League's supervisory functions in respect of
mandates were, on the dissolution of the League, transferred to the
United Nations. This first appears very explicitly from two footnotes.
In the îüst of these they state:
". . . we think that the view expressed by the Court in its 1950
Opinion, to the effect that the supervisory functions of the former
League Council passed to the Assembly of the United Nations
which was entitled to exercise them, was definitely wrong2."
The second footnote, referring to the original Chinese draft resolution
raised at the final session of the League of Nations and later not pro-
ceeded with 3,reads as follows:

"The contrast between the original Chinese draft and the one
eventually adopted constitutes an additional reason why we find
it impossible to accept the view taken by the Court in 1950, that
the functions of the League Council in respect of Mandates had
passed to the United Nations; for this nas the very thing which the
original Chinese draft proposed but which was not adopted4."
This view is again expressed in the following words after a thorough
survey of events concerning the foundation of, and early proceedings
in, the United Nations and the dissolution of the League:
"Thev Le.. both the United Nations and the Leaene Assembliesl
refrainédLequallyfrom any attempt to adapt the hfandates to thé
situation arisiny from the termination of the Leame -nd of Lea~ue .
membership. -
They not only 'refrained', but at least twice (proposal of the
Executive Committee of the Preparatory Commission of the United
Nations . .. and original Chinese resolution at Geneva) they rejected
proposals for a transfer of League functions respecting Mandates to
the United Nations. Acceptance of either of these proposals would
naturally not, of itself, have got over the difficulty about cessation

' South West Africa, Preliminary Objedions, Judgment, I.C.J. Reports 1962,
P.'3Ibid., p. 532, footnote2.
' Vide paras. 31-33 andqg,supra.
' South West Afrii-a, Preliminary Objerltonr, Judgme6it. I.C.J. RePort1962.
p. 535, footnotr. COUNTEI<-bIEMOR IF SOUTH AFRlCh I55

of League membership. It would probably have brought that
question into the open, but this is not the point. Our concern here
is simply to show that the two Assemblies were (except for Article
73 of the Charter) unwilling to provide in any specific way for the
consequences of the termination of the League and its memhership,
or for a possible eventual failure to bring a mandated territory
into trustceship. In this lies the key to the whole matter.
It is the key to the whole matter because it isstrikingly evident
that the two Assemblies (and the Applicant States were hlembers
of both) relied. aiid breferred to relv. on the hooe or exnectation
that the mandated t'erritories woufd eventuaily' be broight into
trusteeship. Whether this was a reasonable assumption in the case
of South West Africa. considerine uhe~--c~arations that were made
on behalf of~the ~nion~~bvernment, is anothcr 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 Mandatory 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 liad in the
meantime been dissolved) 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, gir.en the view that they took of the whole matter,
those concerned thought it unnecessary to provide for this situation

possible conscquences it entailed accepted,there is no legal principle

which would enable a Court of law to put the clock 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 '."
Apart from the value of this finding as su port for Kespondent's
submission, the manner in which it is reacheiis also of significance.
In the passage quoted above. after a thorough and comprehensive re-
view of the facts. the learned judges again emphasize two facts pre-
viously considcred by them. These facts are:
(a) the content of the proposal of the Executive Committee of the
Preparatory Commission of the United Nations, which proposal
was rejected; and,
(6)the inability of the Chinese representative to secure acceptance
of his original draft resolution.
These two facts are thus singled out for special emphasis in reaching
a conclusion which is at variance with that reached by the Court in
1950. It is significant therefore that these are both facts which were

' So~tfhlVestAfrica, Prcli~inary Obicctions, JtidgmentI.C.J. Reports1962.
PP. 539.540. COUNTER-I~IEMOR OFISOUTH AFRICA 157

The Court did not accept this argument in its application to the
compromissory clause but, on the contrary, held that on dissolution
of the League the competence to invoke the compromissory clause re-
mained vested in those States that were hlembers of the League at its
sion" argument raised by the Applicants, but its conclusion seems en-
tirely inconsistent with any transfer of League supervisory functions
to the United Nations. As stated above', the supervisory functions

implied agreement concludeded to ine1920; or by agreement (express orlt of
implied) in 1945-1946 or thereafter; or by some rule of objective law.
It seems inconceivable that any agreement, whether express or implied,
and whether concluded in 1920 or in 1945.1946 or thereafter, would
have separated the obligations ta report to the Council of the League
froin the obligations owed to Members of the League-in the sense that
the former would relate to a new international organization and the
latte? ta ex-Members of a different and defunct organization. If the
interested parties intended to replace the Council of the League by the
General Assembly of the United Nations for purposes of administrative
supervision, the logical course would have been to replace the Members
of the League by hlembers of the United Nations for compulsory
jurisdiction purposes. Otherwise anomalous complications may arise
from the difference in composition between the two groups of States.
i.e., those entitled to participate in the "administrative supervision"
and those entitled to invoke the compromissory clause. Thus, for in-
stance, if, as the Court found, the provisions of the compromissory
clause were inserted in the Mandate lareelv to enable the will of ~h~ ~~ ~
authority exercising administrative aut~o~ity to be imposed on the
Mandatorv 2,it would be anomalous to ~rovide that onlv some members
of the body exercising administrative Supervision (and indeed, on the
present Membership of the United Nations Organization, only a rela-
tively small roportion of its Members) would be able to invoke the
Court's juris$ction. And, it aould be equally or even more anomalouç
to confer the competence ta implement the "judicial supervision" on
States that need not be members of the oreanization exercisine ad- -
ministrati\,e supavision, and irhich ma!. e\.çn ti:i\.e Iwn cspelled
from such orfiani7ntiori. Surh ;inomalies could never have bée11 intended
at any stage.
Similarly, if the concept of devolution through an objective rule of
international law should be applicable at al1to the circumstances of this
case (which Respondent disputes), one cannot conceive of the existence
of a rule whicli would have the effect of separating in the sense afore-
stated the devolution of these two obligations, particularly on the
Court's finding that they were designed towards achievement of one and
the same purpose, viz., enforcement of the hlandatory's "sacred trust"
obligations.
61. TheCoz~12'R seaso,ringregardingtheSuniiualof Article 7.
Kot only is the Court's finding in regard to Article 7 inconsistent
with a substitiition of su~ervisorv oreans. asdemonstrated above. but
. -.
' Vide Chap. III. para. rr~,supra.
Vidc SouthR'esiAlriçn. Preliminary Objeclions.Judgmenl, I.Rcporlr 1962.
PP. 336fi.158 SOUTH IWST AFRICA

its reasoningin reaching this finding equally tends to negative the pos-
sibility of such a succession.
Thus the Court relies largely, if not solely, on an agreement among
Members of the League of Nations in April 1946. This portion of the
Judgment points out that the Members of the League had full knowledge
in April 1946 of the contents of the Charter of the United Nations, as
also of the fact that the United Nations had already begun to operate.
The purpose of the agreement that was concluded waç, therefore, in
the words of the Court:
". .. to provide for the continuation of the Mandates and the hlan-
date System 'until other arrangements have been agreed between
the United Kations and the respective Mandatory Powers"".
When defining the ambit of the agreement held to have been entered
into inApril1946 forthe purpose set out above, tlie Court,in Respondeiit's
submission, renders it clear that such agreement did not compreherid
any obligation to report and account to the Uiiited Nations. Thus the
following language is used:

". .. obviously an agreement was reached among al1the Members of
the League at the Assembly session in April 1946 to continue the
different Mandates as far as it was practically feasible oroperable
with reference to the obligations of the Mandatory Powers and
therefore to niaintain the rights of the Members of the Leagzienot-
mithstanding the dissolution of the League itself 1". (Italics added.)
The Judgment proceeds to state that discussions were held "to find
\irays and means of meeting the dificulties and making u$ for the im-
perfectionsas fa? as was practicable2". (Italics added.) Later the agree-
ment is said "to maintain tlie statzdsquo as fur as possible in regard to
the Mandates (Italics added, Save in regard to the words status qzro.)
At page 341. the agreement is stated to be as follows:
"It is clear from the foregoingaccount that therewas a unanimous
agreement among al1 the Member States present at the Assembly
meeting that the Mandates should be continued to be esercised in
accordance with the obligations therein defined althoughthedissolu-
tion of the League,in thewordsof therepresentativeof South Africa al
the meeting, 'will necessarily preclude complele compliance with the
letter of the Mandate', i.e., notwithstanding the tact that someorgans
of the League like the Council and the Pevmanent Mandates Commis-
sion would be missing. In other words the common understanding
of the Member States in the Assembly-iiicluding the Xandatory
Powers-in passing the said resolution, was to continue the Man-
dates, howeverimperfect thewholesystem wotrldbeafter the League's
dissolution, and as much as il woidd beoperable.until other arrange-
ments were agreed upon by the Mandatory Powers with the United
Nations concerning their respective Mandates." (Italics added.)

From the above discussion of the contents of the agreement, two points
emerge clearly :
(a) The interim arrangement comprised in the agreement would en-

South We~tAfrica, Preliminory 0bj~cfiona.Judgmenl. I.C.J. Reportsp.338.
Ibid.p. 339.
3 Ibid., p312. COUNTER-IIEMORI A L SOUTH AERICA '59

able the Mandate to operate only in an "imperfect" manner, meaning
thereby, inter alia, incomplete ("as much as it would be O erable").
In the last-quoted passage such imperfection is related &rectly to
the disappearance of the organs exercising administrative supervi-
sion. If thisu~ervision had been transfemed to the United Nations. ~.
the iiiipcrfeciiÔn \vould natiirally liavc hecii cur~clIt is. therefore,
cliflicult to iinxgiiie th:rt thc Court coulclIia\,c ci>iisitli:rcrlthat therc
IiaJ Ibeciisucl;Ltr~nsfcr to tliiCiiitcd Slitions-eill.i:rIJVt~-~:t~'rcc-
ment under discussion or by any other agreement between ~egbeis
of the Leaaue of Nations at its final Session in Awil 1046, or anv
agreement-at the previously held conference Îesui6rig' in thé
foundation of the United Nations. Indeed, even disregarding the
specific reference to the League's supervisory organs it \<ould,
in view of the Court's finding that the compromissory clause sur-
vived the dissolution of the League, be difficult to imagine in what
respect the operation of the Mandate could at al1 be said to be
"iinperfect" in the above sense unless the administrative super-
vision fell away.
(b) The purpose of the agreement was, in the Court's view, not to
create new rights, but merely to "maintain the slatus quo" or "main-
tain the rights of Members of the League". Whereas an agreement
with this content could conceivably serve to perpetuate in favour of
States, in their individual capacities, the competence to invoke the
compromissory clause which had previously vested in them in their
ca~acities as Members of the Lea~ue.it obviouslv could not have the
.,
effcct of providing a~ic\%b~oclytucscrciic stliiiinistr;rtive siip(.r\,isioii.
Ry;innlogy, the highcst effect itcoiildpossil>lyIiavr lind. \roulil 1i:ive
becii to coiitiiiiiiif.,voiir of tlic Starci \vIiiclico~~~titlit~lCOUII-
cil at the dissolution of the League the rights of supervision which
had previously vested in the Council. But obriously individual
Members could never exercise the functions of a bodv which had
been dissolved, quite a art from the practical diffic;lties crelrted
bv the disappearance orthe Permanent Mandates Commission and
the SecretaRit.
62. To sum up, both the conclusion and the reasoning of the Court
regarding the survival of Article 7, provide strong indication that Arti-
cle 6 mnst, in the Court's view, have lapsed.
63. The Court's ActualTrealmentof Article 6.

There is, to the contrary, a passage in the Judgment which may
possibly be read as signifying that in the Court's view the obligation
to report and account, as imposed on Respondent by Article 6, has in
some form or another survived the dissolution of the League'. The
meaning of the passage is, however, far from clear, and Respondent
must respectfully confess to being wholly uncertain as to what the
Court intended to convey thereby regarding possible survival or other-
wise of Article 6. The uncertainty arises not only from the fact that
the expressions "international supervision" and "the obligations con-
nected with the Mandate", as used by the Court 2 are for the purposes

Soulh West Africa.Preliminary Objertionr. Judfment, I.C.J. Repor1962. pp.
333-334.
Ibid.. p. 334.160 SOUTH WEST AFRICA

under consideration imprecise and somewhat obscure, but &O and
particularly from the context aiid manner of treatment of the subject
in the Judgment. Thus:
(a) It is striking that the Court at no stage deals specifiwlly with
the problems arising from the disappearance of the League's super-
visory organs, and that no reference is made at any stage to the sug-
gestion that supervisory functions were, after April 1946, to be

exercised by the United Nations. In fact, the impression is created
that any such reference is intentionally avoided. This appears
particularly from the passage quoted from the 1950 Opinion at
pages 333 and 334 of the Judgment, where every reference to the
United Nations has been deleted '.
(b) The passage under discussion concludes with the foilowing words:
"'111attlie I.eiigue of Sation~ in eniling itj owii uisttnçe diil ilot
teriiiinatc thc \I;~iidat~.sI~urtliatit definitçly int~iidcd to c~iitiiiu~.
ttieiiibv its resoliition ofIS :\nrilIIJG \vil1he secn later \\,hm tlie
Court States its views as to the t&é effect of the League's final
act of dissolution on the Mandates Z."
In the later discussion reterred to in this quotation, the Court bolds
that the intention of the Members of the League at its final Session
was merely to continue the mandates in so far as they would be
operable after the dissolution of the League. In view of the Court's

finding that the compromissory clause survived the dissolution of
the League, the only respect in which there could in its view have
been inoperability after such dissolution, \vas, as has been demon-
strated above 3, in that the rovisions relating to administrative
supervision fell away. The re Perence in the above quotation to the
intention of the Leaye of Nations in April 1946 would therefore
appear to indicate that the Court did not in the passage under
discussion ' mean to express the view that the provisions relating
to administrative supervision somehow survived the dissolution of
the League.
64. In the result, in view of the ahove-mentioned uncertainties, no

'The complrte text of the passage is given below. The parts deleted in the quotn-
tion are italicired: . .. -
"The ob!igation incumbent upon a mandatory State to accept international
supervision and to submit reports is an importantpart of the MandatesSystem.
When the autliors of the Covenant çreated this systcm, thïy considered that the
effectiveperformance ofthe sacred trustofciviiization by the mandatoryPoivers
required that the admiiiistrationof mandated territoriesshould bs çubiect to
internationalsupervision.The airthorsof theCharter had in mind the some necersify
wllenthey orgarriieait ltiternafionnl Trusteerhip Sysfern. The nec~ssily for super.
i8isioncontinuer fo crist dsspile the disoppearance of thc superuirory orgon under
th? Monda!er System. It cannot bo vdmitted that the obligation to submit ta
exist. uihenlhe United Nalions has o>rofheri>zleriratio>toolrgnn 9erfor,nin,asitnilar,
fho~gh rio! identical. supervirory functionr." ilnternalionul Status of South-West
Atricn. Adiiisory Opinio>r.I.C.J. II~p~v1950, p. 136.)
' South West Africa, Prcliminory Obiedionr, Jtidgmcnl. I.C.J. Rcporis r96a.
P. 334.
' Vide para. 61, supra.
* South West Africa, Prdiliminnry Objeclions. Judgement. I.C.J. Reports 1962,
PP. 333-334. COUNTER-MEMOR OIASOUTH AFRICA 161

clear inference can be drawn as ta the Court's view on the question
whether the League's supervisory functions regarding mandates have
been taken over by the United Nations-although Respondent submits,
for the reasons advanced, that on balance the reasoning is inconsistent
with such succession.
65. SeparateOpinionofJudgeJessup.
Judge Jessu does not deal expressly with the survival or otherwise
of Article 6.&. finds in regard to Article 7 that the competence con-
ferred upon Members of the League remained available to ex-Members
of the dissolved League. Respondent's argument set out above', re-
lating to the logical inconsistency between such a fmding, and a fmding
that the United Nations Organization has succeeded ta the supervisory
functions of the League, would therefore also apply to this Opinion.
The reasoning whereby the learned Judge reached his conclusion re-
garding Article 7 (irrespective of its soundness, with which Respondent
is not at the present stage concerned) is either inapplicable to the ques-
tion whether Article 6 likewise survived the dissolution of the League,
or tends positively to contradict any possibility oa succession by the
United Nations to the supervisory functions previously performed by
the Council of the League. The survival of Article 7 is firstly based by
Judge Jessup on an interpretation of Article 7, and in particnlar, of the
expression "another Member of the League of Nations". In effect he
follows Sir Arnold McNair (in his dissenting opinion in 1950) in holding
that these words did not impose a condition, but were merely descriptive
of individual States, which acquired rights in their individual capacities.
It wiil be observed that this reasoning seeks to find, by a process of
Nations", an entity capable of swviving the dissolution of the League.
Such entity (or entities) existed during the lifetime of the League in the
individual States concerned in their individual capacities. By no process
of interpretation, however, can the expression "Council of the League
of Nations" in Article 6 be interpretedin a sense which could have refer-
red during the existence of the League, to any other entity than the
Council itself; and thus the learned Judge's line of reasoning with
re.,rd to Article7 cannot he a~~liedto Article 6.
66. 5ccoiidl!.. Judgr. Jrssiip rclics uii n sta1~:mciitmndc oii belixlf of
iics~)on~lriiton 9 April 1946. reliti\.,, to rlic coiiiinii:ition of its ob1ig.z-
tioiis nndrr thr Mandate 'l'liisstritcmr.iir coiitaineù tlir. follùivinl: ien-
tence:
"The disappearance of those organs of the League concerned
with the su rvision of mandates, rimarily the Mandates Commis-
sion and tK e"League Council, wi !1'necessarily preclude complete
compliance with the letter of the Mandate 2."
Judge Jessup holds that this reservation did not affect Article 7, in
that:

(a) The Permanent Court had by express agreement been replaced by
the new Court prior to this reservation, and therefore its dis-
appearance did not preclude complete compliance with Article 7;

Vide para60.supra.
1-. N.. O./.SPec Sup. No.rgq,p. 33; Chap. IIpara.qr(b) (ii). supra.162 SOUTH WEST AFRICA

(b) the reference to "another Member of the League" in Article 7
was not affected by this reservation, because the Members of the
League were not "organs of the League" '.
For present purposes it sufficesto Say in-this regard:
As to (a) aboue-
That the Council of the League had not, by agreement or otherwise,
been re~laced. ri orto the reservation, bv ".y other body; and
As to @) above '
That the. Council was one of the "Organs of the League" and waç
ex~resslv mentioned aç such in the reservation contained in Res~ond-
en't'sstgtement of 9 April 1946.

It foiiows, therefore, that the statement could not have played any
role in effectinga substitution of the supervisory organs mentioned in
Article 6. On the contrary, it showed a clear contemplation of the
absence of such a substitution.
In certain portions of his opinion the'learned Judge seems to accept
tbat there is a distinction between the frustration caused by the dis-
solution of the League in regard to, on the one hand, Article 7 (where
the new Court was already in existence) as agaiqst Article 6 (where
there had been no substitution of supervisory organs) Z.
67. Sepbute Opinion of Sir Louis Mbanejo.
. Sir Louis Mbanefo equally does not deal with the effect of the dis-
solution of the League on the procedural obligations of the Mandatory.
As in the case of the other majority judges, his conclusion that ex-
Members of the League would continue to be entitled to invoke the
compromisSory clause is, as pointed out above, inherently inconsistent
with the concept of succession by tht: United Nations to the functions
of the League. And his reasoning seenis to emphasize the inconsistency.
Thus he says:
"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 tbose States who

were Members of the League at the time' of 'its dissolution, and
continues notwithstanding the termination of the League's func-
tions 3." . .
Irrespective of the cogency of this ar'gumentnobody would be able to
Say that the rights and obligations regarding supervision "became, as
it were, maintained at the level at which they were on the dissolution
of*the League". As a result of the dissolution of the League the said
obligations could not be "maintained :there could be further supervision
only pursuant to a new obligation, relating to a new supervisory organ.
I. p.rticular, any suggestion that in respect of such obligations the
I . ,
pp. 413.419.erl Afra'ca. PrelilninaryObjectimis, Judgmenl, I.G.J. Reports 1962,
Ibid., egpecially pqr3-414.
Tbid;,.p;445 . COUNTER-MEMORIAL OF SOUTH AFRICA 1~3

iorgans of the United Nations replaced those of the League would in-
volve, not maintenance of existing obligations, but creation,of new
<obligations-and in fact different obligations in view of the difference
in composition, procedure and approach as between the organs of the
Leame and those of the United Nations '.

68. .llor?llr u1Dcclnrur~,~0~1~luliceibiruboulos. Jt<dgesUasdpt.litt1and
.* " . .
None of the above-mentioned Judges dealt specifically witli the ques-
tion relating to the survival of Article 6, and no inference can be drawn
from their opinions as to their views in that regard.
69. Taking the Judgment and opinions on the Preliminary Objec-
tions as a whole, therefore, it is submitted that they tend to support
Respondent's contention that there was no succession by any organ of
the United Nations to the functions formerly exercised by the Perma-
nent Mandates Commission and the Council of the League of Nations
in regard to mandates not converted into trusteeships.

XI. CONCLUSIO REGARDING AGREEMEN IT 1945.1946 OR THEREAFTER

70. For the aforegoing reasons. it is submitted that there is no war-
rant for findi-e that an3 ag"eement. exmess or im~iied, was entered
into nt an!. stage. and parricularly <luriiig'thcyexrs 1$~j-19~ w6l.web)'
th,: siiper\.i;or\* funcrioni oftlicI.c?~tie of rations ivirh rcçnrd to
Nations Organization. This leaves, asecal:inal topic in this Chapter, theI:nitcd
question whether an objective rule of law could have brought about
such a transfer.

E. Successionby Virtue of Some Objective Principle of International Law

71. Neither in the 1950 Advisory Opinion, nor in the Judgment and
opinions on the Preliminary Objections, has any $lember of the Court
snggested the existence of any principle of succession which, operating
independently of the intention of the parties, could automatically effect
a substitution of the United Nations, its organs and101 Membership.
for the League of Nations, its organs and101Membership. The only real
discussion of this topic is found in the dissenting opinion of Judge van
Wyk on the Preliminary Objections 2,where he finds that no such p~in-
ciple exists, citing, inter alza, Judge Levi Carneiro in the Antbatzelos
case, as follows:
"Even when the organ which waç formerly competent has been
abolished, its Dowers cannot be re~arded as automatically trans-
ferred to the nêworgan which replaces it )."
And Judge Bustamante, in a passage of his opinion already quoted
above '.also in passing rejects al1 possibility of either "automatic" or
"ex-oficio" succession of the United Nations to the League of Nations.

' Vide para.21,supra.
pp. 603-604.st Africn, Preliminnry Objections, Judgrnent, I.C.J. Reporg62,
' AmbrifieioPre/i>ninaryObjec!ian.Judfment, I.C.j. Repo1052.P. 54.
Videpara.56. rupr<i.,164 SOUTH \TEST AFRICA

72. It will be recalled ' that Applicants relied in their Observations
on the Preliminary Objections, on a "doctrine of succession", without
indicating the exact legal origin of such "doctrine". During the oral
proceedings regarding the Preliminary Objections, Respondent's Counsel
submitted that Appiicants probably had in mind some term to he im-
piied in the Mandate itself. Sut he proceeded to deal also with the alter-
native possibility that they meant to rely on some principle of inter-
national law operating independently of the parties' intentions, and he
aryed fully that no such principle existed 2. Tliereafter, Applicants
did not again revert to any such suggestion in the Oral Proceedings.
73. In view, tberefore, of the largely academic nature of the sug-
gestion of automatic succession, Respondent will confine itself to snb-
mitting that no such principle exists, either in customary international
law or in the general principles of law recognized by civilized nations.

F. Conclusionsregarding the Procedural Obligations

,4. Reswndent coiitends that the Court will in this case. for the
rcnsoii, ad\,liicc.d nho\,c. cunclude thtir Respondtnt's obligations to
report niid acioiint ru. :incliiibmit to tliç siipcrvijiuiiuf. the iouncil 01
the I.e;icu~of Sati~iris.Intxrd uwn dissolutiùii of tlic I.encue and have
not bec; replaced by obfigations to submit to the super;ision of any
organ of the United Fations or any other organization or body.
The acceptance of thiç contention would by itself provide a complete
answer to the Applicants' Submissions 7 and 8 ' and that part of Snb-
mission 2 ' relating to the supervisory function alleged to be exercisable
bv the United Nations.
-ln addition, however, the lapse of the League's supervisory functions
raises the further question whether the Mandate \vas capable of furtber
existence to any eitent whatever once such functions beiame impossible
of performance. This question is dealt with in the next Chapter, in
which it is submitted that the Mandate as a whole lapsed on the falling
away of League supervision.

' Vida para.iq.supra.
Vide Oral Proceedings. 5Oct. 1962,rnorning.
3 Vide 1.p. 198.
' Ibid., pp.95. 197. CHAPTER V

THE LAPSE OF THE MANDATEAS A WHOLE

Part A

I. Whether the Mandate was capable of further existence to ?ny
extent after the falling away of the provisions repding administrative
supervision by organs of the League of Nations, is a question depend-
ing in the ultimate analysis on the intentions of the authors of the
Mandate.
2. It seems to be a generally accepted proposition that there is nothing
riotionally impossible in the idea of severability (or separability) of
treaties or institutions. In this regard Judge Jessup said in his separate
opinion on the Preliminary Objections in this matter:
"The priiiciple of separability is now accepted in the law of
treaties, es ecially with reference to multipartite treaties,,altho!gh
the older cLsical writers tended to reject it. It is a doctrine which
exists in municipal contract law (sometirnes under the label of
'divisibility') and in the law governing the construction of
statutes '."

Judges Spender and Fitzmaurice, in their joint dissenting opinion,
stated the following:
"... there is in fact no principle of international law which fequires
that because an instrument or institution survives or continues in
existence. it must necessarilv do so with resDect to al1its parts on a
completeiy non-severable basis. The is quite thcAcontrary :
international law mstulates no incompatibility between the survival.
or continued exktence of an interkationai agreement, organ or
institution, and a termination or cessation, on one ground or
another, of some particular part of it, or of particular functions,
rights or obligations provided for by it. This situation is indeed
rather a common one, and it quite often occurs that, for instaye,
an instrument remains in force, but that some particular provision
of it ceases or has ceased any longer to be operative, because. its
terms have become inapplicable, or because it is now impossible
of performance, or for some other reason.
If an inspection of a particular clause shows that, although an in-
strument or institution survives as such, the clause concerned is no
longer possible of performance, or can no longer be applied accord-
ing to its terms (as is the case with Articles 6 and 7 ofthe Mandate)
then the prima facie conclusion must be that although the instm-
ment or institution otherwise remains intact, that particular clause
is at an end.
The only circumstances in which it might be possible to maintain
the contrary, would be where the provision concerned was of so

'Soulh lVeSf AfricoPrrlimiriar~~Objections.Ji IC&.Jm?rpfrts1962.P.408.166 SOUTH WEST AFRICA

fundamental and essential a character that the instrument or
institution could not function without it '."
Although the learned judges used the objective term "could not
function", it is submitted that they clearly did not intend to lay down
a purely mechanical test. An institution may, after dismemherment
of some of its parts, still be capable of perfonning some of its erstwhile
functions, although such performance may be entirely ineffective to
advance the purposes for which the institution was created. In such
a me, it cannot be said that the institution, as an institution-i.e.,
as intended by its founders-\vas still capable of fuiictioning.
In order to determine whether any particular provision is of so
fundamental and essential a character that the instrument or institution
could not function without it, one must consequeiitly have regard to
the type of institution which its authors intended to create. As it was
put by Viscount Haldane in Attorney-Generalfor Manitoba v. Attor-
ney-Gelteralfor Canada and Others, referring to legislatioii which had
been Iield partiaiiy ultra vires:

"Their Lordships agree with Duff J. in his view that if the Act is
inoperative as regards brokers, agents, and others, it is not possible
for any Court to presume that the Legislatzrreintended topass it
in what may prove 10be a highlytrtrncatedform 2." (Italics added.)
3. The question then is whether this Court can hold that the Man-
date as a mandate can. having regard to the purposes intended for it
by its founders, stiii function in the "highly truncated form" which
resulted from the disappearance of the hfandatory's procedural obli-
gations to report and account to supervisory organs of the League.
In the Preliminary Objections proceedings Respondent did not pur-
sue this question, and indeed made no suhmissions in regard thereto,
inasmuch as the success of the Objections as presented did not depend
thereon. For purposes of its argument on the Objections. Respondent
was thus prepared to assume. without conceding, that the 1950 Advi-
sory Opinion was correct in holding that the Mandate, as an institu-
tion, survired the dissolution of the League 3.Inasmuch, however, as
Respondent also submitted then, as now, that there had been a com-
plete lapse of the procedural rovisions for administrative supervision,
the assumption of continuecf existence of the Mandate necessarily
carried with it a further assumption, viz., that of complete severability
between the hlandatory's duty of report and accountability on the one
hand and other aspects of the mandate institution on the other '.This
further assumption also accorded with Respondent's interpretatiou of
the 1950 Advisory Opinions. In the written Preliminary Objections
Respondent had stressed what might be termed the physical or mechani-
cal severability of the procedural obligations from the substantive

' South Wesl Afrira. Prelimitrnry ObjectionsJudgme~il. I.C.J.Reports 1962.
PZ 19255A.C. 561(P.C.) at.p.563.
' Viric1,pp. 299.359: Oral Proceedinp, 2,3 and r9Oct. 1962.Ifthe Judgment
on the Preliminary Objections is to beunderstoodas sugpesting (at p. 332) that
Respondent contended positively that some aspectofthe Mandate still exist. such
suggestion would be erroneous.
' OralProceedings, 3 and 19Oct. 1962.
' Oral Proceedings,3Oct. 1962. COUNTER-MEMORIAL OF SOUTH AFRICA 167

iobligations involved in the "sacred trust" and "tutelage'"; andin the

Oral Proceedings Respondent rendered clear that the question of ulti-
mate severability, as related to the intentions of the founders of the
inandate system and institution, was left open. and that each of the
:ilternative answers to that question would equally suit Respondent's
case in support of the Preliminary Objectionsz. The question now,
however, arises p-inently for decision.
4. The administrative supervisory aspect of the mandate system
has always beeri considered of great importance. III this regard refer-

ence has been made above' to commentators who emphasized that
the provision for League supervision was the factor differentiating
mandates from certain colonial regimes and from certain earlier inter-
national conventions concerning the well-being and development of
under-developed peoples. As it was put by Wright:
' The di.itiiictii,c fearurc ofrlie system isuridoubtcdly tlic Lcague's
juper\.ijion. 'i'h~princiylej of triisreçship and ture1:ib.ehave often
buen :ivo\r.ed bcfort. ;~ii<lsomctirnes vractised but onl\. as sclf-

limitations +."
And in the 1950 Advisory Opinion the Court expressed itself as
follows :
"The obligation incumbent upon a mandatory State to accept
international supervision and to submit reports isan important

part of the Mandates System. When the authors of the Covenant
created this system, they considered tliat the effective performance
of the sacred trnst of civilization by the Mandatory Powen required
that the administration of mandated territories should be subject
to international supervision 5."
5. Expressions of opinion by various States further show the im-
portance that has in practice been attached to these provisions. Thw,
(cg., the following statement was made by the delegate of the Nether-

lands before the General Assembly of the United Nations on I November
:r947:"The mandate system now doesnot operate. As there is no longer a
supervisory authority, there is no longer a mandate system 6."
Of special significance also is the report of the United Nations Special
Coinmittee on Palestine, referred to above 7,which contains the following
passages :
"It may be seriously questioned whether, in any event, the
Mandate would now be ~ossible of execution. The essential feature

of tlic niandates systcni \r.xsthsr it gave an international stlitus Io
thc iiiandati.d territories. This iiivol\.ed a positive clemcnt of
iiitcrn:~tionnl rcjponsibilit!. for the rnandatcd territories :ind :III
tnler~r<rlion~rliccou~rl~l,iltt)Io Ihe Councrl of Ihe Leogue O/ Sntrons
oii tlie y;,rt of cadi ni:indatory fur tlit: \iell-bçing and dcwlol)mt.rit

Vide 1,p. 317.
VidePChap. IV.sparas.c3-5.962.
* Wright. op. cil.p.64. ,
' lnternotio nltus O/South West Atvirn, Adoisory OpinionI..CJ.. Repori1950.
1,.136.
C.A., O.R.. SecortSers.. Vol. 1105thPlenary Meeting, iNov. 1947. p. 605.
' Vide Chap. II, para.59 (cJ.168 SOUTH WEST AFRICA

of the peoples of those territories. The Permanent Mandates Com-
mission was created for the specific purpose of assisting the Council
of the League in this function. But the League of Xations and the
Mandates Commission have been dissolved, and there is now no
means of discharging fully the international obligation with regard
to a mandated territoryother than by placzlig the territory under the
International Trusteeship System of the United Nations l." (Italics
added.)
and-
"The most the mandatory could now do, therefore, in the event
of the continuation of the Mandate, would be tocarry outits adminis-
tration, in the spirit of the Mandate, without being able to discharge
its international obligations in accordance with the intent of the
mandates system '."(Italics added.)

It will be recalled that rr States concurred in this report-Australia,
Canada, Czechoslovakia, Guatemala, India, Iran, the Netherlands, Peru.
Sweden, Uruguay and Yugoslavia. They had al1been original Members
of the League, and would presumably have known what importance was
attached to the snpervisory aspect by the founders of the mandate
svstem.
6. \'ariuui referciices \\.L'cemade to tliis mrltttr in the Jiiilgmvnt:iiiiI
Opinions oii ttic I'relimiiiary 0t)jections. 'l'hiistlic nutliors uf tlic liidg-
ment, apparently rzferring to the provisioris of:\rticlt: 6 of the .\lnndnte2.
s~id:
"The findings of the Court [Le.,in the 1950 Advisor'yOpinion] on
the obligation of the Union Govemment to submit to international
supervision are thus crystal clear. Indeed, to exclude the obliga-
tions connected with the Xandate would be to exclude the very
essence of the Mandate 3.'"
And Judge Bustamante said:
',
The tutelary organisation's right of supervision over the exercise
of the Mandate is an institutional rule in the Mandates System,
expressly provided for by Article 22 of the Covenant (paragraphs 7,
8 and g).Thisright is not just an adjectival or procedural formality,
but an essential element on which adherenceto the purposes of the
system and the eficiency of ils application depend. It should,not be
forgotten that in the Mandate agreements one of the parties, the
beneficiary under tutelage, has no possibility of entering into dis-
cussion with the other party, the Mandatory. on an equal footing,
having regard to its lack 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 ortutelary
organisation which, on the one hand, represents the ward and, on
the other, personifiesthe interest of theStates of the world assembled
in an association. Absence of a supervisory organ would be tant-
amount to unilateral and arbitrary exercise of the Mandate and
would inevitably lead to annexation. A Mandate so mutilated would

'C.A., O.R.,SecondSess.. Sup. No.rr. Vol.1 (A/364),p. 43.
Vide Chap. IV. para.63, stlra.
' Sorith WestAfrica.Preliminary Objections, Judgment, I.C. J. Re1962. p. 334. COONTER-MESlORI OAFLSOUTH AFKICA 169

be of an essentiallydifferent nature /rom that prouidcd for in Article
22 of the Covenant '."(Italics added,)

7. Analysis of the history and wording of Article 22 of the Covenant
fullv bears out, in Kes~ondent's submission. that the feature of re~ort
andaccountability ta the League was intended to be an integral pokion
of the madate system, as will appear from the succeedin~ paraj--aphs.- -
8. As regards history, it seemidear that the various proposals which
preceded the mandate system as actually agreed upon, al1 proceeded
from the basic principle of "no annexations", to which effect \vas to be
given by some form or another of internationalizationof the government
or administration of the colonies and territories in question. When
proposals came to be made for the establishment of a League of Nations,
the League waç seen as the medium through which suc11internation-
alization could be carried into effect,the varions proposers differing,
however, as to the exact nature and degree of the authority to be
accorded to the League in this respect. The proposals in the various
drafts apparently ranged from, on the one hand. virtually complete

and direct powcrs of contra1 for the League, ta, on the other hand, a
supervisory function of a relatively indirect nature 2.
In the ultimate event, the supporters of the latter idea \\.on the day ';
but nevertheless the supervisory function remained an integral portion
of the whole scheme, as is evident also from the wording of Article 22
itself.
g. (a) The first paragraph of Article zn sets out two things:
(i) the basic principle. to which effect was to be given in the system
devised for the colonies and territories in question, viz.. that the
well-being and development of their peoples form a sacred trust
of civilization: and

(ii) that securities for the performance of this tmst should he em-
bodied in the Covenant.
The paragraph can therefore be said to be an introductory state-
ment of a basic principle or objective,together with an intimation
that the ensuing provisions would he directed towards the attain-
ment thereof.
(b) The second paragraph sets out "the bestmethod of giving practical
effectto this principle". Here, then, we find the authors announcing,
in broad outline, their conception of the basicpractical elementsof
the system they wished to create. These were twofold, viz.:
(i) that the "tutelage" of the peoples concerned should be en-
trusted to certain advanced nations, and

(ii) "that this tutelage should be exercised by them as Mandatories
on hehalf of the League".
The notion of "Mandatories on behalf of the League" was therefore
integraliy combined with the notion of "tutelage", as part and
parcel ofthe "best method"of giving practical effect to the basic

Solith lieAtriça,Preliminavy Objections, Judgment. I.C.J. Reports 196.*.1>.358.
In regard to thcse aspectoithe vsriousproposals, vide Cliap. II, par5 and
6, supra.and the aulhuriliestherereferred to.
' Vide. e.g..the comment by hfr. Lloyd George in the Council of Ten on 28
Jan. 1919. and by M. Hymans in his report of Aug. 1920. in bth instances as
cited in Chap. IV. parasgand io,supra. SOUTH WEST AFRICA
170

principle of the sacred tmst. The conclusion seems inescapable
that both notions were seen by the authors as essential elements of
the system they were derising.
(c) In the further provisions of Article 22, and in the mandate in-
struments themselves, the "tutelage" notion was put into effect by
vesting in the Mandatories title and powers of administration,
subject to conditions obliging them to utilize the powers in the
interest and for the advancement of the underdeveloped peoples,
as noted above '.
The only provisions whereby practical effect was sought to be
-iven to the notion of "hfandatories on behalf of the League", were
those requiring report and accountabilityto, and thus submission to
supervision by, the Council of the League, acting with the advice
and assistance of the Permanent Mandates Commission 2.
(d) In the result, the dissolution of the League brought about not
only a cessation of the notion of "hIandatories on behalf of the
League", but also of al1 provisions wbereby practical effect was
sought to be given to that notion. thus destroying completely
an element which the authors had intended to be an essential part
of the mandate system they were devising.
IO. For the above reasons Respondent suhmits that the lapse of the
Mandatory's obligations to report and account to, and be supervised
by, organs of the League, has resulted in a situation which renders it

impossible for a Court to presume that the authors of the Mandate
would have intended it to continue in existence in such a "bighly
tmncated form".
II. In the 1950 Advisory Proceedings Sir Arnold McNair and Judge
Read. in their se~arate o~inions. both found that the Mandatorv's
oh1ig:itions to i.cl>;rt and ;;eiouiir to orgnnî of tlitLc~gue ti:id lapséd.
trittioiit rt.plnceiiit7iitrelative to ~<lininistrati\c siipcr\.ision by orgrin5of
the United S:itioiis or an\. (itlivr orrnnizition or I,i><l3. Sr\~t:rilizlcsj
they~both concluded that'the Mandate remained in eiistence in other
respects '.
The last-mentioned conclusion of the leamed judges appears, how-
ever, to have been influenced, at least to some extent, by views taken
by them regarding the ambit and continued existence of the com-
promissory clause in Article 7 of the Mandate. Thus Sir Arnold McNair
stated as follows:
"Although there is no longer any League to supervise the exer-
cise of the Mandate, it would be an error to think that there is no
control over the lllandatory. Every State which was a Member of
the League at the time of its dissolution still has a legal,interest
in the proper exercise of the Mandate. The Mandate provides two
kinds of machinery for its supervision-judicial, by means of the
right of any lllemher of the League under Article 7 to bring the
Mandatory compulsorily before the Permanent Court, and admzn-

' Vida Chnp. III, paras.r3-16.
Paras. 7 and g of Articl22. Article6 ofthe Mandate for South West Africa
and corrcsponding articles in other mandates.
' InfernolionaSfolus ofSoulh WestAfvica. AduisovOpiiiion, I.C.J. Repor19.50.
pp. 158-162 (Judge McNair). pp.169-173 (Judge Read).
' Ibid. pp.i46. 158.164-166, 169. COUNTEK-MEMOR IFLSOUTH AFRICA '7'

istratiue, by means of annual reports and their examination by the
Permanent Mandates Commission of the League.
The Judicial supervision has been expreçsly preserved by means
ofArticle 37of the Statute oftheInternational Courtof Justice.. ..'"
And Judge Read stated:
"With regard to the other factors which may have affected the
continuance of the international obligations ofthe Union, thereis one
which cannot be overlooked. A territory, held under Mandate ,by a
Member of the United Nations, is not left to the uncontrolled
administration of the Nandatory Power. In the present instance,
the Union, in the case of disputes relating to the interpretation
or the application of the provisions of the Mandate, is subject to
the compulsory jurisdiction of this Court-under the provisions of
Article 7 of the Mandate Agreement and Article 37 of the Statute,
reinforced by Article 94 of the Charter. The importance of these
provisions cannot be measured by the frequency of tbeir exercise.
The very existence of a judicial tribunal, clothed with compulsory
jurisdiction, is enough to ensure respect for legal obligations Z."
12. In Respondent's respectful submission, however, the compromis-
sory clause cannot be relied upon in support of a contention or view
that the Mandate remained in existence despite lapse of the administra-
tive supervision. Before any finding could be made that the com-
promissory clause filled the void caused by the lapse of Article 6. and

first have to be answered in the affirmative, viz. :uestions would

(a) Whether the clause was intended to provide for any supervisory
functions in respect of Mandates, and, if so,
(b) whether such supervisory functions were of sufficient efficacy so
as to act as a substitute for those provided for in Article 6, and
thus to have prevented the lapse of the Mandate,
(c) whether the clause itself survived-
(i)the disappearance, on the dissolution of the Permanent Court
of International Justice, of the tribunal provided for in the
clause for the adjudication of disputes: and
(ii) the disappearance, on the dissolution of the League, of member-
ship in the League, mentioned in the clause as a requisite for
invoking it.
Upon any one of these questions being answered in the negative, the
compromissory clause could have had no effect in preventing the lapse
of the Mandate. In Respondent's submission not only one, but al1 the
questions are to be answered in the negative.
13. Since the majority members of the Court in the Preliminary
Objections proceedings held that the compromissory clause did provide

for some form of judicial supervision, it will be convenient first to con-
sider question (b) above with reference to the type of supervision found
by the majority to have vested in the Court by virtue of Article 7 of
the Mandate. If Respondent's submission in this regard is accepted,
i.e., that such supervision was not of sufficient efficacy to prevent the
1 Infernafional SfaluofSouth Wcsf Africa, Advirory Opinion, I.C.J. Reports
1950.P. 158.
Ibid.p. 169.172 SOUTH WEST AFRICA

lapse of the AIandate on the falling away of administrative supervisioii,
it will be unnecessary to consider questions (a) and (c), both of which
involve a re-appraisal of issues that have been dealt with in the Judg-
ment and opinions on the Preliminary Objections. These questions are,
however, for convenience and in so far as reconsideration may he
necessary, dealt with in alternative submissions contained in Part B of
this Chapter.
14.It is clear, in Respondent's submission, that in the view of the
majority members regarding the scope and purpose of the compromis-
sory clause, it could not have been a satisfactorysubstitute for the pro-
visions of Article 6 of the Mandate. Thus, although the Court in its
Judgment emphasized ' that the purpose of administrative supervision
in terms of Article 6 and judicial protection in terms of Article 7 was
the same, Le., to protect the inhabitants of mandated territories against
uossible abuse or breaches of the Mandate 2.it is clear that it reearded
the two provisions as providing distinct an2 complernentary macYhinery
for achievinrr this purpose. For the raison d'étre of the compromissory
clause was. h the toürt's view. not ~- -~~v~ ~~-a ~ub~ ~tule fbr the ri-
visions regarding :iilmiiiiitriiti\.e supervijion, but, on tlic ioiitrar!,, to
vro\,id~:n riietliotl uf iiiipujiii~ on tl~e.\landstur\. t\,ie\uf tlic urr:iiii
êxercisingsnch superviiion. -
The Court's reasoning in this regard was to the effect that the Council
of the League-ivhich was, in terms of Article 6 of the Mandate, vested
with the powers of exercising administrative supervision-reyuired
unanimity for the passing of resolutions, and could therefore, by reason

of the Mandatory's right in terms of Article 4, paragraph 5, of the
Covenant to attend and vote at its meetings, not come to a decision
adverse to the Mandatory without its consent 3.The main purpose of
machineÎy to ovércome thisdefecterefore. in'tbe provisions relating'to ad-

instituted again& the Mandatory.enabline -ontentious proceedin~s to -e

On this line of reasoning, it follows that the compromissory clause
was not intended to provide for the functioning of any independeizt
supervisory orgaii. but merely to supplement the provisions regarding
administrative supervision. Its function in this regard would necessarily
have fallen away on the dissolution of the League (which entailed the
disappearance of the League Council with all its incidents) and it could
therefore not have served to act as a suhstitute for administrative
supervision.
15. However, on the Court's finding, Memhers of the League would
have been able to invoke the compromissory clause for the protection
of the rights of the inhabitants even in cases where no impasse existed
between the Council and the Alandatory. It seems evident that any
jurisdiction to detemine such an issue would not render the Court an
effective suhstitute for the organs which had previously exercised ad-
ministrative supervision. The obstacles in the way of regarding the

' Soutli West fricaPreliminary Obieciions,Judgme>tt,I.C.J. Refio1962.p. 344.
' Ibid.. pp. 336-337..I74 SOUTH WEST AFRlCA

Such auestions do not. however. fall to be considered for the Dur-
poses of the present c&e. ~es~ondent only wishes to point out t'hat,
given the premise that the procedural obligations were an essential
p artof the Mandate. the mere fact of continued administration of
the territory by esp ponde dotes not mean that the Mandate must
still be in existence. or.a fortiori. that the procedural obli~ations
musc stiUexist despite inoysrability IIIa~.iorciance\r.ith tlici; terms
and the absence of ;in\.;iJaptation to some ne\\,manncr ofopcration.
On the contrarv. thé inoüerabilitv must. on the said ~Ïemise of
essentiality, lead to the conclusion that 'the Mandate & a whole
has lapsed. And the de factocontinued administration of the Terri-
tor, b, Res~ondent must in law be an irrelevant consideration
as f:ir;isttiis coiicliisionis coiicenizd. particularly \i,licrzResl~undent
cloesnot claim. but on the coiitrary cxpressly disclaims, tliat its rigtit
of administration is bajed on continued existence of the \laiidnte.
(c) Finally. \r.liate\,er tlie situation rnighe :uregard5 liespoiidcnt's
right or othen\.ise to adriiinistcr ttie territorv. n çoii;liisioii tliat the
Mandate as a \i.tioletins la~jed must in itself result in ttie dismissal
of the whole of the ~~~lkant's case in the present proceedings,
inasmuch as that case is in law based entirely on averments that
the Mandate still exists and that provisions thereof have been
violated by Respondent.
18. In the eveiit of the Court considering that the supervisory func-
tions held by the majority members on the Preliminary Objections to
have been exercisable bv the Court. were of sufficient efficacv to have
been capable of I~reveiitbigtlir lapst.of tlie \I;iridnte oii ttie fnhg a\\.;<y
of tlie vro\.isions recnrdiiiç :idriiiiiistr;itivc supervision. Kepoiideiit siib-
mits that the com~romisiory clause was. co'ntrary to thêview of the
majority, not intended to provide for any supervisory functions over
mandates, and has, in any event, itself lapsed '.
These submissions involve a reconsideration of issues dealt with in
the Preliminary Objections proceedings, and Respondent's argument
in this regard is contained in Part B of this Chapter.

justified". (InterttatioStatusof South West Africa. Advisovy Opinion. Z.C.J.
Reports 19.50p.133.)
Vide para.12,skpra. Part B

I. For the reasons of possible relevancy indicated in the concluding
paragraph of Part A of this Chapter ',Respondent in this Part sets out
its submissions with reference to the followine matters:
(a) The scope and purpose of the comproinissory clause.
(b) The effect of the dissolution ofthe Permanent Court of International
Justice on the compromissory clause.
(c) The effect of the dissolution of the League of Rations on the com-
promissory clause.

B. THESCOPE AND PURPOSE OF THE CO~IPROMISSOC RYAUSE

2. The purpose of the present enquiry is to ascertain whether the
compromissory clause was intended to introduce any form of "judicial
supervision" at all. As pointed out above, thesupervision held by the
majority of the Court in the Preliminary Objections proceedings to
have been exercisable in terms of the compromissory clause, was of a
verv limited and im~erfect nature 2.Whether the Court was vested with
ewn sucli a restrictcd r)pc of iuperviiory fiiiictioii. \v~uld dcpend on
the nature uf tlic coiitliors<lisputLwhichSt3itcswereentitIe<ltu ut>init
toit for adjudication.
3. As a matter of logic, conflicts between parties are generally justi-
ciable only ahen their rights or legal interests are involved. Courts of
law are not concerned with conflicts, differences of opinion or opposite
views unconnected with the rights or legal interests of the litigants. It
is submitted that the position is the same in international law. Interna-
tional Courts exist for theadjudication and settlement of claims arising
from leeal riehts or leeal interests. and are not there for iudicial ex-
pressio~on d%ferences if O inion or'on conflicts of views bet6een States,
unrelated to theirleaal rielts or iuterests.
The Court, of coürse, %as a discretion to respond to a request for
an advisory opinion on any legal question, even though the question
may not involve legal rights of the organization or body which asks
for the opinion; but that is so by virtue of specific provisions in the
Charter of the United Nations 3and the Statute of the Court 4.Advisory
opinions are an exceptional form of process and the right to request
suchan opinion is limited to the General Assembly, the Security Council
and other organs of the United Nations, and specialized agencies which
mav be authorized bv the General Assemblv to make such a request.
States have no such ;ight. In this respect, the position with regGd to
advisory opinions waç the same in the Permanent Court of International

' No.18.
Vide Part A, para. 15,supra.
Art. 96.17~ SOUTH WEST AFRICA

Justice, also by virtue of express provision in the Covenant oftheLeague
of Nations 'and the relevant Rules of Court Z.

4. There is no iiidication in Article 7 of the mandate instrument, or
inany other part thereof, that the word "dispute" in the context of
the compromissory clause was intended to convey a notion other than
the generaily accepted legal ineaning, namely a disagreement or con-
flict between the Mandatory and another Member of the League con-
cerning the legal rights or legal interests of the latter in the provisions
of the Mandate 3.

The words "any" and "whatever" flanking the word "dispute" in the
Article, cannot give to the latter word a meaning wider than its ordinary
connotation in law.
5. Ap licants rely heavily on the formulation of the meaning of the
word ''d$uti' in, the Maurommatiscase 4. It is submitted. however,
that the ecisioii in that case supports Respondent's contention in this
regard.
In the Mavrommatis case the Permanent Court of International

Justice, in dealing with Article 26 of the Mandate for Palestine (which
clause was identical to Article 7 of the Mandate for South West Africa),
defined the word "dispute" as "a disagreement on a point oflaw or fact,
a confict oflegal viewsor of interests hetween two persons" 5.
The Court was, however, careful in demonstrating that the Applicant
had itself a right or legal interest in the suhject-matter of the dispute
then before the Court. Thus the majority of the Court said:
"It is an elementary principle of international law that a State is
entitled to protect its subjects, when injzrred by acts contrary to
international law committed by another State, from whom they

have beenunable to obtain satisfaction throughtheordinarychannels.
By taking up the case of one of its suhjects and hy resorting to
diplomatic action or international judicial proceedings on his
behalf, a Stateis an realily assertingils ownrights-its right to ensure
in the person of its subjects, respect for the rules of international
law G."(ltalics added.)
In each of the five dissenting opinions in the said case, althpugh

there isno direct statement to that effect,the reasoning of the individual
judges indicates a contemplation of a legal right or interest as a requ?re-
ment for locusstandi of the Applicant, and consequently for jurisdiction
of the Court '.
6. The question for determination therefore is what rights or legal

~~ ~.
Rosenne, op.cit.pp. 441-443.
RcPortse1962.pp. 455-456 (President Winiarski); p. 567 (Judge hlorçlli): pp. 550-551
(Judges Spender and Fitzmaurice); p. 659 (Judge van Wyk).
' Vide 1,p. 89.
' Afnvrommolis PolerlineConcessions,Judgmenl No. 2, 19~4.P.C.I.J.. SeriesA,
N0.2.D. II.
1b;d..p. 12.
Ibid.,pp. 42-43 (Lord Finlay); p. or (Judgo Moore); pp. 77-81 (Jude de
Bustamante): p. 86 (Judge Oda); p. 88 (Judge Pessàa) These i-arious pasïiges are
quoted at 1,pp. 378-379. COUNTER-IEDIORIAL OF SOUTH AFRICA
'77

interests vested in the Members of the League individually so as to have
been capable of giving rise to a "dispute" in terms of thecompromissory
clause.and, after fruitless negotiation, to invocation of the compulsory
jurisdiction of the Court. This question must be answered primarily on a
construction of Article 22 of the Covenant and the mandate instmments.
Reference to these instrumentsdiscloses one obvious class of such
rights or legal interests. Each of the mandate instruments contained
provisions apparently intended specifically for the benefit of member
States and their nationals '. These were, for example, the open door
provisions in al1the A and U Mandates, and provisions in the CMandates
relative to the freedorn of entry, movement and residence of missionaries
who were nationals of League Members. Then there were also contained
in the mandate instruments other provisions, primarily intended for the
benefit of the inhabitants, the non-observance of which could, however,
affect also the material interests of individual LeagueMembers. Examples
would be the provisions with regard to the slave trade, and provisions
with regard to traffic in liquor which, if violated by a Mandatory, could
possibly affect neighbouring or even other States which, being Members
of the League. would then have a legal right to object. In respect of
these provisions, individual League &lembers would have been vested
with rights or legal interests eithcr becausc the instruments cle:rrly
indicated an intention that suchrights should vest in Members individu-
ally, or because the impact of a violation of the terms of the Mandate on
the material interests ofindividual 1\Iemberssuggests that it was iutended
that such hlembers would be entitled as of right to resist such a vio-
lation.
7. It has, however, been submitted by Applicants that Members of
the League possessed "a legal interest in seeing to it through judicial
process that the sacred trust of civilization created by the Mandate is
not violated" 2.The majority of the Court in the Preliminary Objections
proceedings adopted a similar view 3.
This submission, if accepted. would involve that the Permanent

form of supervisory functions,and its correctness or otherwise is accord-some

ingly of vital importance for present purposes. A consideration of its
validity requires an analysis of the nature and extent of the rights,
interests and functions of Members of the Leaeue in relation to those
rovisions of the~~landateç which concerned fhc benefit of the in-
iabitants of the mandated territories, in. circumstances where observ-
ance or non-observance did not affect the material interests of individual
Leaye Members, either directly or through their nationals. This again
depends on the correct construction of Article 22 of the Covenant and
the mandate instruments.
8. The basic scheme of the mandatesystem was that the Mandatory
would be answerable for its administration of the mandated territory

' Although in addition in the ioterestsof the inhabitants of the rnvndated
territaries.
' 1,pp. 91-92,
' VVidSeouth FVmt Africa,Preliminary Objcclions. JudgmcnlZ.C.J.Rcfiorls1962.
Pp. 336-337.343-344: PP.360-362, 374, 379-381 (J~dgc Bustamante): P. 432 (Judge
Je'sVide Part A, para. 15. supra.banefo).17~ SOUTH \VEST AFRICA

to the League, i.e., either to a body having legal personality apart
from its Members, or to an association of States acting collectively in
accordance with a constitution (the Covenant) which reeulated not onlv
the rights and obligations of Merubers inter sebut ais: the procedur&
whereby the organization could express its collective views or perform
its collective acts. Althoueh the Leaeue Members would thus be entitled
by virtue of their membership, tovparticipate in the League's super:
vision of the observance by a Mandatory of its obligations regarding
the administration of the mandated territory, such participation would
merely constitute the method whereby the League (whether as aseparate
persona, or as an unincoiporated association) performed its functions.
If this incident of membership could be considered a right or legal
interest vesting in the Member, the content of this right or legal interest
would not enable a Member to exercise it inde~endentiv from other
Members of the League, or otherwise than by taki& part in the League's
activities in accordance with the Covenant.
9. Applicants' submission, however, involves an assertion that League
Members possessed additional rights or legal interests entitling each
of them, individuaiiy, if it considered that the Mandatory \vas not
observing its obligations towards the inhabitants, not only to raise the
matter in the League for its consideration and attention, but also to
take it up directly with the hfandatory, and, failing satisfaction, to
institute contentious proceedings against the Mandatory with regard
thereto-even in cases which did not affect the material interests of
such Member at all, either directly or through its nationals.
In Respondent's submission. the contents of Article 22 of theCovenant
aiid the niandaie instnimciit SCCIII10 exclude tllcpoisil>ilitytlidtsuch
additional nglits \r.crc interiilcd to \.est se\.crall\ in each 11e11il,r tlic
Lea~-e. The followina -ndications auuA.r uar.icularlv c,rre-t,namelv:
ln) The Mandate was to be exercised on behalf of the League only, and
not on behalf of the League and its Members '.
(b) The consent of the Council of the League was required for rnodifi-
cation of the terms of the Mandate, and not also the consent of the
Members of the League 2.
(c) Article zz (1)of the Covenant provided that the secwities for the
performanceof thesacred tmst of civilization were to be embodied in
the Covenant itself.The only securities mentioned in the Covenant
relating toaccounting bythe Mandatory,or to supervisionof its activi-
ties, were those prescribedin paragraphs 7 and g of Article 22, which
read as foliows:
"7. In every case of mandate, the Mandatory shaü render to the
Council an annual report in reference to the temtory commit-
ted to its charge."
"9. A permanent Commission shall be constituted to receive and
the Council on al1 matters relating to the observance of the
mandates."
The Covenant did not provide, or contemplate, any accounting by a
Mandatory for its administration of the Mandate to individual League
Members, the only provisions being paragraphs 7 and 9 providing for

' Art.22 (2)of the Covenant and Prpamble to the &fandate.
Art. 7 of the Mandate. COUNTER-3IEMORIAL OP SOUTH AFKICA I79

accounting to the League itself. hloreover, the Mandatory's annual
report had to be to the satisfaction of the Council. Individual League
hlembers had nosay with regard to thenature and scope of the wntents
of such a report.
Similarly there was no mention in any part of the Covenant of any
form of judicial protection of any right of supervision over Mandates
vesting in the Members of the League individually and enforceable

by them directly against the Mandatory. Iii the absence of any pro-
vision to that effect in the Covenant, it is unlikely that Article 7 of the
Mandate was intended to establish a form of "judicial super\~ision",
or a form of judicial protection of such individual rightsof supervision.
If it were so intended, one would have expected suc11intention to be
expressed in very clear terms.
'TheCourt held in the Tude<ent on the Preliniinarv Obiection.. tha.-
'. .. ,\rticle 7. y:iragrapli 2, i5clearly in the iiature of iiiipl~riicnting
onc of the 'sciuritirî for flic p~rf~rm:iiiceof this trust', mciitioned iii
Article 22. .aram..h . I '"
1'1i1Court clid 1101. ho\vcvrr. iiiecr tlie dificulry 11i:itilrticle 22 (1) pro-

\,idcd th;it siiclisecuritiïs "~lioulil 11,:eiiil,odicd iiitliis Cui~t:riant'.
.Jii<lge13u~tamanrt.;ilio diclnot iiieer rlii; ilitliciilt\ i\.liIic.itarcd:
"The texts of the 'Declarations' or 'Mandate-agreements' which
were issued immediatelv after the establishment of the League of
Xations contain a cla&e which does not appear in the tëxt of
Article 22 ofthe Covenant, althoaighitmzcstin thespirit oftheCovenant
bo regardedas a necessary securiiy for the system. 'Thisis the 'com-
promissory clause' .. .2" (Italics added.)
If tlic ;iiitlior; of tlic niaiiiiarc sy.iteiii ~,.sLI~Jcc'Ijudi:i.il .super\ i:ioiim
:.j:tneicssarv sc~.urir!.fur tlic .iyit,.iiiit i; clim~ulr tr, iin~lcr,iniid \r.li\.
ilii.\I,ft ir ro rti~ 'ijirit of th<.Co\~,.ii;inr''iiiitt:~d of iiiicrtiiiz itiii th=
letier thercof as they'did in regard to the other securities. -
In the light of the factors set out in subparagraphs (a) to (c) above,

it would indeed be strange if, in the mandate instruments, it was inten-
ded to confer on individual League Members a legal interest in the oh-
Servance by the Mandatory of its obligations, enforceable in the last
instance by recourse to the Court, in so far as such obligations affected
only the inhabitants of mandated territories. If that were the intention.
one would have expected it to have been stated in expliut terms.
10. The conclusion reached in the preceding paraGphs ugon analysis
of the actual ~rovisions of the Covenant and the mandate instrument,
is also supporied bithi probabilities.
Supervisory functions with regard to the Mandates were, in express
terms. reserved not for t-~-A~ ~mblv of the Leaeue but for the Councll
-a pkticular organ of the ~eagué with limited membershipacting
with the assistance of another articula body, the Permanent Mandates
Comniission. It could hardly lave been the intention that in addition
to the supervisory functions of the Council each and every Member of
the League wonld, by virtue of an individual legal interest, stand in the

~osition of a custodian of the riehts <. the inhabitants of the Mandated
ierritories.

' Soulh West Africa, Preliminary Objeclionr. Judgnienl. I.C.J. R~ports 1962, p. 344.
Ibid..p. 360.180 SOUTH WEST AFRICA

One cannot conceive of the League intending, and the respective
Mandatories agreeing, that despite the express reservation of su r
visorv functions to the Council. individual Leame Members woulrbe
cntiricd 10;LI-.C~IC~:LrIiglit\vitIrtqârd to IIIC:\l:ti~d;~t~rici'I~gislar~\.c
:<CIaiiil arliiiiiiistrari\~eiiir;<siirt~csonc<:riiindrhc iiih:il>itniitiofiiiaiidated
territories and, if necessary, ta enforce suchhghts by judicial process.
The position of a Mandatory would have been extremely iuvidious
under such: circumstances. In accounting for its administration to the
Council of the League, it may have satisfied that body on al1 matters
affecting the inhabitants, but still an individual League Member, dis-
agreeiiig with the Mandatory and with the unanimous view of the
Members of the Council, and perhaps even with al1 other Members of
the League, could, by virtue of its legal rights, seek to impose on the
Mandatory its own particular views as to the proper administration of
the Mandate.
The Council'sposition in such circumstances would have beenequally
invidious. The very conferment on individual League Rlembersof powers
equal to, and concurrent with, those of the Council relative to mandate
administration would have tended to undermine the Council'sauthority
in that field.
II. A League of Nations publication makes it clear that the right
to take decisions in regard to Mandate questions belonged solely to
the Councilof the League. It States as follows:
,During the discussion upon the Secretary-General's annual
report on the work of the League,it is permissiblefor any delegation
to draw the attention of the Assembly to some point in the chapter
concerning mandates and even to move that this chapter be referred
to one of the Assembly Committees where an exhaustive discussion
may ensue. . . . The discussion in the Assembly usually leads
to the adoption of a resolution laying stress on some particular
as ct of the discharge of the mandates, fomulating somewish
a8dressed to the Council, the Mandates Commission or the manda-
tory Powers, etc.
Thus, the rôle of the Assembly consists in the exerciseofa certain
moral and very general influence in this domain. Its function may
be said to be to maintain touch between public opinion and the
Council.
The right to take decisionsin regardto mandate questions belo~zgs,
howeuer,to the Council. It exercises its supervision with the aid of
the Permanent MandatesCommission, instituted by the Covenant
itself.
The Covenant provides that this Commission is 'to receive and
examine the annual reports of the Mandatories and to advise the
Councilon al1matters relating ta the observance of the mandaFe!'. It
is therefore essentially an advisory body-a body whoseduty it is to
examine and re~t-designed to assist the Council in carrying out
its task. Its wor isreliminary in character. Constitutionally, zt has
no power to tahe eczszonsbzndzng on the mandatory Powers or to
address direct recommendationsto them. Its conclusionsare not final
until they have been approved bythe Council 1."(Italics added.)

' The Mandates Sysfem-Origin-Pvinciples-Appli( cra45).. 35 COUNTER-MEMORIAL OF SOUTH AFRlCA 181

It is clear from this passage that the Permanent Mandates Com-
mission. a bodv of exverts vrovided for in the Covenant as an imoortant
cog in the sysiem ofkandate supervision, was not entitled to agdress a
recommendation to a Mandatory, and even the Assembly composed of
al1the member States. could take no decisions in reeard to mandate
questions. It could surci? thcn iiot Iiavt:heen inteiided kat ait indi\,idual
I.ea~q~.\I,xmhcr \i.oiilillia\,c the ridit to decidt: for itsçlf \r.h:itincrrjure
shoÜld or should not be ado~ted bv a Mandatorv. and then to assert a ~-~
riglir iigaiiiitil.; \l:<iidator~ in tlirir,:garcl-i>r; evcii inore, tu attem 1
tu dictntc to a >l;inilatory tlic adoption of a particulnr poli<!..;\pplic;iiits
cuntention in~ul\.cs tlic uossibilitv of siizli action bv a I.escu- \fciiiber.
including ultimate judicial recodse, even where the measures or policy
advocated by such Dlember may have been considered unwise by the
Mandates Commission.outvoted bv the Assemblv and even reiected bv
the Council of the ~e&ue.
Furthermore. the Mandatory could stand in the midst of conflicting
demands upon it by diffcrent Members who do not see eye to eyewith
theMandatoryanduritheach other as topolicies to be applied in mandate
administration. One Mcmber could favour a particular policy, and
another Memher an entirely different policy, and each of them would,
on Applicants' contention, be entitled to invoke the Court'sjurisdiction.

12. The anomalous position that could arise ifa Mandatory were
subject to supervision both by the Council of the League and by
individual League Nembers exercising individual rights enforceable
by legal process, was dealt with as follows by Judges Spender
and Fitzmaurice in their joint disseuting opinion on the Prelimiiiary
Objections:
"\\'e finclit impossible toreconcile the view that Article 7relates to
disputes about the general conduct of the Mandate, with the super-
visory functions given to the Council of the League under Article
G of the Mandate. The conjunction would mean that although the
Leae.. Council mieht have been ~erfectlv satisfied with the Manda-
tury's c<iiiiliictof ihc .\l;inrl:iti.,or miglit ,:YenIiavc i1i;r.l~,.uggcjtions
to thc \laildatory ahoiit tliat. \vliicli the,latter \in5 coinplying \i.itli
:inil cnrr\.inc i>ut an!, \lriiihcr of tli,:I.cnctie not satisfied \ïith
the ~anhat&~'s CondGct,or not agreeing ,$th the Council'sviews,
could have brought proceedings before the Permanent Court urider
Article 7.
l'licrc ivoiilil1r;ii.eken an ci.cii morc <?xtraoiiiiii:tri.posiihilit~:\
\if,inher of tliiI.clrgue miglit, on soiiir point rei:itiv<:to riie coilduct
of thc 3l:ind;itc. 1i:ivçul>tainc<lfroriithc Ptrmantrit Cuurt ;i<lccisi*in
which was not in fact in the best interests of the peoples of theman-
dated territory4ue. Say,to lack of sufficient technicaldatabefore
the Court. Yet under Article 59of the Statute, the Mandatory would
have been bound by the decision,andobliged ta apply it vis-a-vis the

inhabitants, although the Council of the League might have been
wholly opposed toit and itself not bound by it.
\\le cannot believe it was ever intended that it should be possible
for such situations to anse, and in estimating this, one must, for
reasons we have given earlier in this Opinion, place oneself at the
point in time when these provisions, Articles 6 and 7, were being
drafted as designed portions of a coherent and integrated whole, 182 SOUTH WEST AFRICA

which the Mandate certainly would not have been ifArticle 7had had
the meaning attributed to it by the Court '."
13. A counter-argument advanced by the Court in its Judgment on
the Preliminary Objections, was that the purpose of Article 7 was to
make provision for a failure of the Council's supervision and thus to
add to the effectiveness of the Mandate. The argument was that in the
political activities of the Council, under Article 6 of the Mandate,
unanimity was required, and the Mandatory was entitled to partici-
ate in the proceedings.TheMandatory could therefore block any action
{y the Council. The Council wuld, however, not bring contentious
proceedings, and was limited to advisory opinions which did not bind
the Mandatory. Therefore, it was held, the right to bring contentious
proceedings was granted to individual Members of the League ta enable

the willof the Councilto be imposed on the Mandatory 2.
This argument was characterized by Judges Spender and Fitzmaurice
in their joint dissenting opinion as the one having "the leastsubstance"
of "al1 the arguments advanced in tbis case", i.e., the Preliminary Ob-
jections proceedings '. It is, in Respondent's respectful submission,
unsound forthe reasons advanced in the succeeding paragraphs.
14.Firstly it isby no means settled law (asthe authors ofthe Judgment
appeartosuggest) that the Mandatory's votecouldprevent any resolution
ofthe Council. Respondent draws attention to the difference in the views
espressed in this regard by Judge Klaestad and Judge Lauterpacht in
their separate opinions in the Voting Procedure Advisory Opinion '.
If a Mandatory could not block a Council resolution in the manner
suggested, the basis for the argument fdls away. 13ut the sarne result
followsalso on the opposite assumption. For if a hlandatory could block
a Council resolution, that would indicate that the whole purpose ofthe
authors of the Mandate was that the Councilshould flobe able to impose
its will on the Nandatory. As espressed by Judges Spender and I'itz-
maurice in their joint dissenting opinion:

"The very fact of the unanimity rule coupled with the furtherfact
that under paragraph 5 of Article 4 of the League Covenant, the
hfandatory had to participate in the vote. shows that the system was
one which was intended to be worked by a process of discussion,
negotiation, and common understanding 3."
15.Bloreorer. if it had beeii the intention that the Council's will
should beable ta be imposed on the hlandatory. one can hardlyimagine
a more inept way of making provision therefor. If that had been the
intention, it would have been much easier and more direct to provide
esplicitly that a Council resolution would be effective even if the Man-
datory voted against it. This would then have the desired effect, Le.,ta
enable the Council to pass a resolution without the consent of the Man-
datory.

' South WestAlricn,Prelirnirrar,uObjediorir, judgrnenl. IRcpor!r1962, p. 5.53.
Ibid.. pp. 336-337.Vide alço theseparate opinion of Judge Bustamantc .?t
P. 374.
' Ibid., p. 520.
' Vofing Proccdure on Questions relafintu Reportsand Petirions concer*tingfhe
Territoryof South West Africa, Aduisoq Opiniovi.I.C.J. Reports 1955,l'p. 85-86,
93-LOG. COUNTER-MEMOR OALSOUTH AFRICA 183

The compromissory clause, on the other hand, is not suited at ail to
a purpose of enforcing the Council's will.The Council is not empowered
to invoke it, but on the contrary the suggested imposition of the Council's
will, is left to the chance possibility of action by an individual Member
O/ the League. If judicial process had been contemplated at al1 as a
method whereby the Council could inipose its wiUon the Mandatory,
the obvious course would have been to grant powers to the Council
(excluding the hfandatory) enabling it to obtain a judgment binding on
the hlandatory '.
Altematïvely, one would at least have expected some provision
designed to effect co-ordination between the action of an individual
Member and the will of the Council, for example, express provision
that individual Members would have the riglit to obtain a judgment
eiiforcing a Council resolution, or a resolution which would have beeu
pasçed but for the Mandatory's dissentient vote. In fact, however, the
right of a hlember of the League is defined without reference to any-
thing occurring before the Council at all. It seems illogical to enable
alembers to approach the Court without the Council ever having con-
sidered a matter, if the purpose of the procedure was to enforce the
Council's will.
16. Another consideration tending to refute Applicants' submission
regarding the scope of the compromissory clause, is that, in exercising
aiiy "judicial supervision", the Court could be cailed upon to give a
judgment on technical, political and administrative matters without the
assistance of the Permanent Mandates Commission and the other tech-
nical assistants available for consultation by the Council or individual
Members thereof. In its decision, the Court could be called upon to
apply, inter alia, the wide and general provisions of Article z requiring
the Mandatory to "promote to the utmost the material and moral well-
being. and social progress of the inhabitants of the territory". As put
in their jointissenting opinion on the Preliminary Objections by Judges
Spender and Fitzmaurice:
"There is hardly a word in this sentence which has not now
become loaded with a variety of overtones and associations. There
is hardly a term which would not require prior objective definition,
or redefinition, before it could justifiably be applied to the deter-
mination of a concrete legal issue. There is hardly a term which
could not be applied in widely different ways to the same situation
or set of facts,according to different subjective views as to what
it meant, or ought to mean in the context; and it is a foregone
conclusion that, in the absence of objective criteria, a large element
of subjectivity must enter into any attempt to apply these tems
to the facts of a given case. They involve questions of appreciation
rather than of obiective determination. As at.~resent advised we
have serious misg(vings as to the legal basis on which the necessary
objective criteria can be founded.
The Drooer forum for the an~reciation and a~~lication of a
provisi6n if this kind is unque'stionably a technfckl or political
or the Council'of the "League of Nations-ortes Coto-day (as regards

'South West Africa. Preliminary ObjeclJudgmcnl. I.C.J. Rcportr196p. 520.184 SOUTH WEST AFRICA

Trusteeships), the Trusteeship Council and the Assembly of the
United Nations. But the fact that. in Dresent circumstances, such
technical or political control cannot [n practice he exercised in
respect of the Mandate for South M'est Africa, is not a ground for
asking a Court of law to discharge a task which, in the finalanalysis,
hardly appears to be a judicial one '."
The functions of courts of law do not normally extend to the realm
of politics; and where a lecislature or an administrative body-acts with-
in ihe scope of powers cnnferred upon it, it is not the function of courts
of law to enquire into the pnlicy or soundness of its acts.
This general principle was recognized in the case of Jerusalem-Jaffa
District Governorand anotherv. Muvra and others,as being applicable
also in regard to the administration of the Mandated Territory of
Palestine under that Mandate. In regard to certain measures of ex-
propriation applied by the Mandatory, the Privy Council stated:

"Their Lordships agree that in such a case, and in the absence
of exceptional circumstances, justice requires that fair provision
shall be made for compensation. But this depends not upon any
civil right, but (as the Chief Justice said) upon principles of sound
legislation; and it cannot be the duty of the Court to examine (at
the instance of any litigant) the legislative and administrative
acts of the Administration, and to consider in every case whether
they are in accordance with the view held by the Court as to the
reauirements of natural iustice 2."
\\'ith regai<]to tlte f~itict~uiof inrvr~i'tttfi~i,:I,~IIIL~,<uj~t~n vt.*tc,j,
\\.IIIrclertn<c II,(i~~tsioiiiI.i.tlof th,: 1'~riii.iii~ntCourt oi Iiiti:iii3tit~ii;il
.liijtice :tnd uf th? prc:st,ntCoiirr:
"In the firsf place, it cannot too often béemphasized that the
Court is a court of justice and not of ethics or morals or of political
expediency. Its function is to 'declare the law'. Its pronouncements
are solely concerned with the law as it is, and 'it is not for the Court
to pronounce on the political or moral duties' which its conclusions
on the law may involve 3."

Respondent is mindful of the fact that legal questions are often en-
compassed or intertwined with political issues, and that the jurisdiction
of the Court, if othenvise established, would not for that rcason be
ousted. It is,however, foreign to the essential nature and purpose of the
Court to entertain matters of a purely political character, and it is
unlikely that the authnrs of the Mandate intended that the Court should
perforrn such a function in the mandate system-if they intended that
the Court should, one would have expected very explicit language to
that effect '.
17. In his separate opinion on the Preliminary Objections Judge
Jessup refers to certain cases decided in the Supreme Court of the

' SouLh West Africa. Preliminary Objecfions, JudgmewL, I.C.J. Reports 1962.
PP; 466-467.
Jerusalem-Jafla District Governor v. Suleiman iMurra and others. 1926 AC.
-.1. at." 228.
Rosenne, op. cif., pp62-63.
' Compare thewording ofthe compromissory clauses inthe Minorities Treaties,
para. zr, infra. COUNTER-MEMOR IF SOUTH AFRICA 18j

United States of America as support for the propositition that courts are
sometimes called upon to determine whether particular laws or actions
comply with general broad criteria such as "due process", "equal pro-
tection" and "religious freedom" '.
mulae. It must, however, always be a matter of construction to deter-
mine whether the formula concerned was intended to be applied by a
court or some other body. Where formulations are not only broad in
the extreme, but their application ivould require technical knoivledge,
then formidable difficulties must always esist in coming to a conclusion
that a court uras intended to have jurisdiction as an alternative to, or
concurrently with, an existing technical body specifically desigiied for
and charged with the application or administration of the provision in
question.

18.A further important factor in ascertaining the scope of rights of
League hlembers for the protection of wliich the compromissory clause
was designed, arises from the phrase "if it [the dispute] cannot be
settled bv neeo..ation" 2. This is a clear indication that the tv~e o,.
nglits \i.l;ch \rcrc nic:iiIOI)r.protccte<lhy i\rtisle 7.wcrï such :is\i.uiil<l
bc cap.~blç uf settlcriientbi.ncgoti;rtit)iibet\rcen ttiç \l;iiidator!. ;ind tlie
otlier \leiiibcr of tlie I.-ncue coriccrii~il IIIth<*words of "".cej S~en<lt:r
and Fitzmaurice:
"... a requirement that a dispute must be snch as 'cannot'be settled
by negotiation, necessarily implies that it be of a type capable of
beine so settled. and of beine so-settled bv.nee~u~ation between
~"rti~:jconipctcnt for tli:it IJiirlJosc.I:ndil~irt~:c01,ldnvt be s~.ttlr<l
(I.c..ISinlic.rcntl\.iiii:apnhr>licttltincntj b\.any kinclof negotiîtion
:1t ;ilbctwcçn tlic n:irtii:s bciorc tlicCoiiri. t~ ~ ~~~~~:irI:trciiiiiic-
ment that the dispute be one that 'cinnot' be settled bfnegotiation
would be meaningless.
13y 'settlement', we understand final settlement, and a final
settlement to us means a settleinent negotiated between parties
having competence to settlethe particular dispute in a final manner.
The question therefore arises, could the Applicant and Kespondeut
States. by negotiation zitlerse,settle in any way whatever a dispute
not relating to their oivn State or national rights or interests, but
belonging to the 'conduct of the Mandate' type-the sacred trust-
could any settlement negotiated between single States, such as the
Applicant States and the hlandatory, settle any question relating
to the general conduct of the Mandate itself? Could any sucli settle-
ment, arrived at between the Applicants and the Respondent alone,
bind any other State conceiving itself to have an interest in the
conduct of the Mandate-or bind the United Nations Assembly?
Obviously not-such a settlement might be wholly inacceptable to
these other entities '."
Settlement with one or some States would not prevent others from
raising complaints relative to the matter settled.

Souih West Africa. Preliminnry Objections,Judgment, I.C.J. Reports 196428..
Art. 7 of the Mandate.
South lVertAfrico. Preliminary Objcrtionr,judgme>it, I.C.J. Repwts 1p. 551.
Vide also the diçsenting opinion of Fresident Winiarski at p. 457.186 SOUTH WEST AFRICA

19.Similarly, if proceedings were brought and the Mandatory were
to be successful, such judgment would be res judicata only for the
Applicant States '. It would not bind any other States, wlio would be
able immediately to institute fresh proceedings on exactly the same
grounds. From the Mandatory's point of view there would thus be no
finality. On the other hand, a decision against the Mandatory would be
final and conclusive-at any rate, as far as the Mandatory itself was
concerned.
Such an anomaly could never have been intended by the authors of
the Mandate, and it suggests very strongly that the only disputes cog-
nizable by the Court under Article 7 were disputes relating to a State's
material interests, which it could freely settleby negotiation-as against,
on the other hand, disputes pertaining ta "the obligations of the Man-
datory in relation to the 'sacred tmst"' which were, in Respondent's
respectful submission. correctly held by Judges Spender and Fitzmaurice
to have been "of their nature not negotiable as between the Mandatory

and anotlier State Member of the League" 2.
It is significaut that the typical compromissory clause in the Minori-
tics Treaties3 contains no provision regarding previous attempts at
settlement by negotiation '.
The argument that disputes regarding the "sacred trust'' provisions
were of their nature not capable of settlement by negotiation, \vas not
dealt with in the Judgment or opinions of the majority of the Court in
the Preliminary Objections proceedings.
20. When dealing with the ambit of the rights granted by the Cove-
nant and the mandate instmmeiit to hlembers of the League individudy,
Judge Jessup stated as folloxvs:

"International law has long recognized that States may have
legalinterestsin matters which do not affect their financial, economic,
or other 'material', or, Say, 'physical' or 'tangible' interests j."
And :

"The question is not, therefore, whether one can conceive of a
treaty being concluded in such a spirit and with such results but
whether the Mandate was of this characterd."
Though Respondent is in respectful agreement with these statements, it
must be pointed out that in the treaties of the kind referred to by the
learned Judge, and in particular those concluded more or less contem-

poraneously with the Mandate, very clear language was used to achieve
the unusual result of conferring legal rights or interests of the kind in
question on individual States.
As exam~les of such treaties. more or less contemDoraneous with the
hlandate and containing comp~omissov clauses, Judge Jessup referred
particularly to the Minorities Treaties concluded after the First World

Art. 59of the Statute.
South Vert AfricoPreti#ninory Objections,Judgrnenl. IJ.Reports 1962, p.552.
Ibid.. pp425-426 (quoted by JudgeJessup).
' Videpara. 21,infra.
Sot'th West Africa. Preliminary Objedions, Judgmant, I.C.J. Keportr p. 425.
Ihid.. p426. COUNTER-MEMOR OIFLSOUTH AFRICA 187

War, and to the Constitution of the International Labour Organisa-
tion '.
21. Dealing first with the Minorities Treaties, Article II of the
Treaty of Saint-Germain-en-Laye of IO September xgrg(quoted at pp.
425-426 of Judge Jessup's separate opinion and which is typical of
Minorities provisions), read as follows:

". . . any difference of opinion as to questions of law or fact ansing
out of these Articles betweeii the Serb-Croat-Slovene State and
any one of the Principal Allied and Associated Powers or any other
Power, a member of the Council of the League of Nations, shall be
keld 10 be a dispule of an inlernalional character under Article 14
of the Covenant of the League of Xations. The Serb-Croat-Slovene
State herebv consents that anv such dispute shall, if the other
Iixt!. tlii:icio dt:iii;iiiJs, II?ref;?rr<.rltu tri<: I>crni:iti~:ntCuiirt of
1ntçriinrion;il Iiiitii?."(Itnlics nclrlcil
It is significant that the States to whom legal interests were granted,
togetherwith the concomitant right of invoking the Court's jurisdiction,
were limited to the Principal Allied and Associated Powers, and to
other hfembers of the Council of the League. There was no general grant

to al1hlembers of the Lengue of Nations, as, it is argued. the position
was with respect to Mandates. This limitation in the grant of legal
interests is al1 the more marked when one realizes that the hlinorities
Treaties were imposed on the conquered nations and new States by the
conquerors, whereas the Mandates were substantially conferred upon
the ionquerors by themselves 3.
1s it then likely tliat the Great Powers would in these circumstances
volnntarily have granted in respect of Mandates, legal interests and
competence to invoke jiirisdiction to a wider number of States than in
respect of the htinorities Treaties?
Moreover, the Minorities Treaties differ from the Mandates also ,in
another significant respect. The language employed in the Minorities
Treaties in order to make provision for the exercise of legal interests
by other States is entirely clear and unambiguous. It is difficult to ima-
gine that the authors of the Mandates would have used much less espli-
cit language to achieve a more far-reaching result. It is also important
to note that the compromissory clause in the Minorities Treaties did
not contain a provision regarding previous attempts to settle the dispute
by negotiation between the parties.

22. In another context Judge Jessup made further use of provisions
of certain Minorities Treaties as follows:
"It has been urged that those who concluded the Mandate agree-
ments could not have intended the meaning of Article 7 (2)which
has just been stated. because they aould have wished to avoid the

1 South IVcsl Africn. Preliminnry Obicdions, - -pment, I.C.I. Reports 1962.
pp. 425.432; particularlypp. 429-430.
Vide alço Hudson, M.O., In!ernalional 1.egislation (igVal. 1,p. 3i9.
3 Vide Soulh West Africa. I'reliminary Objeclians, Judgmenl. I.C.J. Reports r962.
pp. 4j2-4.53 (dissenting opinion of PresideWiniarski); and alsoJessup, P. C., A
Modem Laru olVnfions (19.59). p. Sg.where the learned authar states asfollows:
"But the rninoritiestreaties were obnoxious largely because they carried
the stigma of imposition upon small states by the great pawers. whonere
unwilling to accept like obligatioin their own territorieç."188 SOUTH WEST AFRICA

confusion and conflict which it might have entailed between the
respective roles of the Council of the League and the Permanent
Mandates Commission on the one hand, and the Permanent Court
of International Tu"tice on the other hand. The Permanent Court
disposcd of acomparable ohjcctioii iii coiiiiectioii witli the .\liiiorities
trc:,tiç, iit.icIi coiitniiid ~>rr,\.isboth for invoking ;,~.tionby tlie
Coiiiicil..ii<ior s~ibmittiiii. C~SC to tlle ;iJiudicttionof tlic Court.
(Settlersof GermunOrigin,series B. No. 6 (igz3), pp. 21-23; Upper
Silesia (Minority Schools),Series A. No. 15 (rgz8), pp. 19-25,)And

to the same general effect, although with certain differences of
treaty terms, Statute of the Memel Territory, Series A/B, Xo. 47
('932). PP. 248-249 '."
The Settlersof GermaliOrigin case does not in Respondent's respectful
submission, appear relevant. In that case the Court was dealing with
the possible confiict between the right of the Council to refer the matter
to the Court for an advisory opinion, and the right of certain Powers
to institute contentious proceedings. In other words the Court was
dealing with two different ways of bringing the same question before
the same tribunal, and not xvith different ways of bringing the same
question before two different tribunals.
The two other cases referred to by Judge Jessup arc comparable,
but the dissimilarities between the Minorities Treaties dealt with in
them and the Mandate are so striking that they tend rather to support
Respondent than otherwise. Like the Treaty of Saint-Germain-en-Laye.

referred to above, the language of these treaties mas entirely clear, and
their interpretation could hardly have been affected by any anomalies
that might have arisen on their application. And in fact there was
hardly any scope for the type of conflict between the functions of the
Couiicil of the League and the Permanent Court as would iirise in the
case of mandates if Applicants' interpretation of Article 7 were to be
correct. Contentious proceedings could in terms of both these Treaties
also be instituted only by hlemhers of the Council of the League Z.
In view of the fact that Council decisions could be arrived at only
by a unanimous vote, the possibility of conflict between the wiil of the
Council and that of the State instituting judicial proceedings was thus
virtually excluded.
23. The second example, referred to by the learned judge, of a treaty
granting to States legal rights enforceable by judicial process in matters
in whicli their material interests were not concemed. derives from thfi

constitution and operation of the International Labour Organisation.
From his discussion of this topic, he concluded:
". .. tti:in Stnte ma! Iin\.c n Iegal interest in the observance, in the
tt:rritorizi of nnother State, of genernl \\.~lf:irçtri.:ity pro\.ijiuni
and th:it it iii:iviisscrt sucli iiitercst \iitlioiit nlligiriçnii).i~iip:icriil>oii
its o\\.nn:~tionalsor its direct so-callrd t:iiigil~lcor ni;iteri;il iritereits.
Tlic opcratioii of tlie Internationnl Lnboiir Orgnnisn.ion forther

Souih West Africo. Preliminnry Objections.Judgmant, I.C.J. Repo1962.p. 432
Vide Art.72 (3) of the German-Polish Convention of 15 May 1922, quoted
in Righi.?of Minorifies irt UPPcrSilcsia (nfinority Schools!, Judgnrcnrz.o1928,
P.C.I.,I., Scries A, No1.5.p. 80.and Art. 17 O( theConvention of 8 May iqz4,
quoted in Intcrpretatian of th&Slatuof thMemel Territory, Preliminary Objectzon,
Jirdgmenf. 1932. P.C.I.J., Series AIB, No. 47,y.247. COUXTER-MEMOR IFLSOUTH AFRICA 189

indicates that disagreements over the observance of general welfare
orovisions mav be the subiect of iudicial investigation and of ulti-
mate resort to this Court ':" -

Respondent is, however, not prepared to concede that the Interna-
tional Labour Organisation, and the conventions whicli it has brought
into effect, were motivated solely by a humanitarian "iiiterest which ail
States have in 'humane conditions of labour' in aU other States" 2.
Thus States have always considered international regulation of labour
conditions a necessary prerequisite to an improvement at the national
level, since unilateral raising of standards by any State would raise
costs of production and consequently put such a State at a disadvantage
-.~ -~~~---~io~al comoetition 3. That this attitude olaved a vital role
in the forniation of the International Labour organisafion, can be seen
from statements made more or less contemporaneously with its founda-

tion by leaders from various countries. 'fhus, for example, a memo-
randum prepared in January 1919 by mernbers of the British delega-
tion to the Paris Peace Conference contained the following passage:
"One of the fundamental obiects of conventions as to labour
conditions ii to ,:limin;itciinf:ii;coiiiperitiori hnsed on oppïesji\.t.
conditioiii i,r \corking. Aiiy ît:itc, tlicrcforc>.ivliicti does not c:irry
oiit a coiivcnrion il<*iigiiedto yrevent r,pprc.sjive coiiditioiis, ii
pilty of m:iiiiiLcturi~i~ iincler cuiiditions ii.lii,:licrc:ite :istatu of
iinfnir conipcritioii iii the iiitcrii;itiuiinl ni;lrkc'. '

This same economic consideration was expressed jn the preamble to
the Constitution of the International Labour Organisation, which con-
tains the folloivingparagraph:
"Whereas also the failure of any nation to adopt humane condi-
tions of labour is an obstacle in the way of other nations which
desire to improve the conditions in their own countries
It is therefore not surprising that the Constitution provided means
whereby a State could enfoice compliance with conventions to which

both it and an aliegedly non-complying alember were parties6. Such
non-compliance would clearly benefit the non-complying State in its
competition with complying States-a situation affectingthe material
interests of the States concerned and101 their nationals. In this regard
there is no comparison with the position said to exist under the man-
dates, where it is contended that a right of compulsory jurisdiction was
granted to States also in respect of matters in which neither their own
interests nor those of their nationals were involved at all.
24. For the reasons aforestated, it is submitted that a comparison
between the provisions of the Alandate and those of the Minorities
Treaties and the Constitution of the International Labour Organisation

' South Ives1Africo, Plcliminary Objcdions.Judgment. I.C.J. Reports r962. p.42s
1 Ibid.. p. 429.
' Vide Shotwell, J. T. (ed.). The Origins of the International Lcibor Organiaolion
(1934). Vol. 1, p. 4; The International Labour Organisation: The First Decade
('93') PP. 29-31.
* Vide Shotwell. op. cit., Vol. 1,.125;vide alsoVal.1, p.i18.Similvr statements
may be found in various other parts of this work, suchas, cg., Vol.1. p. 80as well
as in I'brigord. P., Tha Intarnafional Labo* Orgoniration (1926).
' The Intenrationol Labour Orgonisolion :The First Decade. p. 367.
Vide Art. 411 (of the Treaty of Versailles). later renumbered26. =go SOUTH WEST AFRlCA

strengthens the conclusion that the Mandate was never intended to
grant rights or legal interests in respect of the "sacred trust" obligations
to individual Members of the League, Save in sa far as their material
interests could be affected by a breach of these provisions by the Man-
datory.
25. The conclusion reached above with reference to the provisions
of the Coveiiant and the mandate instruments aswell as the prohabilities,
is further supported by the history relating to the framing of the
mandates.
It will be recalled that the compromissory clause originatecl in a
draft for the B Mandates suhmitted to the drafting Mandates Commis-
sion by the representative of the United States of America, which draft
made elaborate and detailed provision for commercial and other rights
to be conferred on, and for the henefit of,State Alemhersof the League
of Nations and their nationals. In its original form it rendered not only
the hlandatory but al1 State hlembers of the League subject ta the
jurisdiction of the Court in disputes concerning the interpretation or
application of the Mandate provisions. This feature persisted throughout
the later drafts of the Commission,and indeed also in the draft suhmitted
by the Principal Powers to the Council of the League '.
The only reason for tlie amendment thereupon brought about by the
Council of the League whereby the hlandatory, and only the Alandatory,
would he obliged to accept the jurisdiction of the Court, was the con-
sideration that other Leaeue Xlemherscould not. without their consent.
be suh)e<:tto tlic jurisdicfioii of tli?Coiirt '.II the yurposc of tlic com-
liroriiissor'.cl:iiiir w:is to ciii.i:t sonic.forin 01jiidiiial iiilxrvision, tliere
does not scciii 10 t>r:ail\, reasc~n\i.Iititioulrlinitiîll\li:ive bcvii drlftcil
in a form which per&itted the '~andator~ to institute proceedings
against other Members of tlie League, and which permitted one Member
of the League to institute proceedings against another Memher, even
where neither was the Mandatory in respect of tlie particular mandate
concerned.
Furthermore, if the Powers represented on the Council were so
sc~~pulous of the right of member States not to be bound without
their express consent, it is difficult to helieve that they would, oii their
own and without an explicit statement ta that effect, have changed what
\vas intended to he an ordinary compromissory clause into a clause
providing for a form of judicial supervision over mandate administra-
tion '.
The historical survey also shows that discussion in the Mandates
Commission of the draft provisions of the adjudication clause was con-
fined to the operation thereof relative to the rights which were to be
conferredon, and for the benefit of, memher States and their nationals '.
Originally it \vas intended that the rights granted to nationals of mem-
ber States would be justiciable also at the instance of individuals. This
was changed to render these rights justiciable only at the instance of
States-this change heing given effect to by having (except in the case

' Ibid.. para.16.supra.rz and 15. supra.
Vide South West Atrica, Prcliminory Objcdionr.,/udgmott. I.C.J. Raporl1962.
p. 453 (PresidentWiniarski).
' Vidc Chap. II. para.12. supra. COUNTER-MEMOR IF LSOUTH AFRICA Igl

iof Tanganyika) a clause cousisting of only one paragraph as finally
idrafted and approved of by the Council of the League '.Thronghout the
iiiscussions. tliere was a sienificant absence of anv mention or even
suggestion that the clause ;as intended to constitule a form of judicial

supervision for the benefit of the inhabitants of mandated territories.
26.The anomalous so-called Tanganyika-clause has been used in
areument. inter alias. b.,<udee " < tes su^ a-ainst the contentions advanced
bi~es~ondent ?.
The Tanganyika-clause alone contains, in addition to a first para-
graph identical to the whole compromissory clause in Article 7 of the
ljouth West Africa Mandate (and in all other Mandates), the following
paragraph :

"States Members of the League of Nations may likewise bring
any claims on behalf of their nationals for infractions of their rights
under this mandate before the said Court for decision."
It is not argued hy Judge Jessup that the explicit provision for claims
on behalf of nationals in the Tanganyika-clause, indicates that the com-
promissory clauses in other Alandates do not cover such claims. Indeed
this point is left open by him. In the Mavrommatis case it was clearly
held that the compromissory clauses in othcr Mandates did cover such
claims '.
Judge Jessup's point is, horvever, that the compromissory clauses in
other Mandates:

". .. mus2include somethiug other than or in addition to the claims
of nationals or else the East African Mandate would have omitted
paragraph I because paragraph z would have covered the field "'.
This conclusion does not. in Res~ondent's resuectful submission, take
tlie mnttcr :in).1iirthc.r.It lia ncvc'rbccn ,uggesic<lthat tlie comproinis-
iory il:iliiciii:lrri<le 7 uf tlie.lI:iii<l:t:il>pliedon/\ tu ci;iiiils b!. çt:it<.s
~icli~titttbelinll nt lkeir ~t.ilin~i,i/sI.ii add~tioit ,:lenrl\. co\.~>rçil .l~iiiis
invo6ing the r&his oofStates themselves.

Judge Jessup continues, however, as follows:
"The language of paragraph z of Article 7 of the ,South West
Africa Mandate is very broad indeed and there is no evidence that zt
is limited tomutters in whichotherStates might havea 'public'concern,
as for example the interest of a neighbouring State in the control
of the traffic in slaves, arms, or liquors 5." (Italics added.)
This logic is, with respect, difficult to foiiow. Judge Jessup himself

has not positively disputed that paragraph 2 of Article 7 may include
claims on behalf of nationals. Nobody has therefore suggested that it
should be limited to matters of public concern-the question is whether,
in addition to claims on behalf of nationals, it would cover matters of
public concern only, or whether it would have a still wider import. If

Vidc Chap. II. para. 12. supra. 'videalso generally the dissentin oginion of
Tudaes Spender and Fitrrnaurice in South West Atricn. Preliminary Objections.
/udimcnt: 1 CJ. Reports 1962 pl>. 5s1-55<,.
South Wcrt Alr~d. Prrli>nz>ioryOb,rrl~on<.z<dgmrnr,1 C.J. R?pnrts1962. 1' 431
'.liotromm.ilis I'~ilrstt~eo>zresrz,n./i<.pmd>rl .Vo a. ,924.P C I J.,S~llCs d.
No. 2.
' South West Africn, Pveliminory ObjectionsJudgmenl, I.C.J. Reports 1962.p.431.
' Ibid., pp. 431-432. SOUTH WEST AFRICA
192

the Irsrried Judgc i~iteiidedto >uSgrit tliat the Iniiguagc isso broarl tliat
it niujt extelid hcyoiid botti "clriiiiis oii beli:ilf uf iiationnls" and "iiiat-
teri of ijublic coiicern". the rclc\.:~nccof tlic l'ai-.ans~li~-cliiiiieis not
readily apparent '.
27. A further significaiit fact in favour of the construction of Article
7 advanced by Respondent, is that prior to the present Applications no
State has ever attempted to bring any application to the Court on be-
half of the inhabitants of any mandated territory, and this so despite
the fact that in the Leagiie of Nations period 14 mandates were in
force for over 25 years. The only case arising from the mandates, i.e.,
the Mavrommatis case 2, dealt with the situation where a illember
of the League espoused the cause of one of its nationals.
In League circles generally there never seems to have been any,con-
templation of any judicial supervision. In the words of President

IViniarski :
"The Applicants rely on the views of certain jurists in favour
of a general supervision to which any Member of the League could
subject any Mandatory by bringing it before the Permanent Court of
International Justice.
And yet Mr. van Rees, one of the most active members, and
Vice-Chairman of the Permanent Mandates Commission, says
nothing in Iiis book Les Mandats i~~terirationat~ Vxol. 1, Le contrble
inlernalioiinl de l'admi~ristrationmandataire (Paris, 1927),about this
judicial supervision by the Permanent Court of International
Justice claimed to be able to be brought into operation by any
Alember of the League. Even more significant, the official publica-
tion Tlie Mandates System-Origi,i-l'rinciples-Afiw fihichcation
the League put out in rgqj mith a preface by the Acting Secretary-
General. hlr. Sean Lester, is also silent on the subject of this alleged
role of the Court, although it contains a passing reference to the
jurisdictional clause; yet such a role, if provided for, could not
have escaped the attention of the authors. If in League quarters
such as the Council, Secretariat and Permanent Mandates Commis-
sion judicial supervision was contemplated even oiily as a possl-
bility provided for in extreme cases by the international agfeements.
the fact that we find no mention of it in these two books is inespli-
cable. If in the time of the League, when the framers of the Cove-
nant and the Mandates, and their associates, were still alive,
judicial supervision such as the Applicants put forward found no
authoritative proponent, it may be taken as evidence that matters

were not seen in this light '."
28. The authorities, scholarly and judicial, relied upon by Applicants
were dealt with by Respondent in its Preliminary Objections', and in

' Vide.inregard tothe Tanganyika-clause ,lso thedissentingopinion of Pre-
andenFitzmaurice(atpp.4559.560).nd thejointdissentingopinionof Judges Spender
Mai>rorn>notisPalestina Concessions. JudgmcnNo. z,rp4. P.C.I.J., Seri6s A,
No. 2.
"outh West Africa, Preliminary Objectioas, Judgment, I.C.J. Reports196a.
PP. 451-452.
'Vide 1.pp. 389-394. COUNTER-MEMOR IAFLSOUTH AFRICA I93

the Oral Proceedings ', and it is not necessary ta repeat the discussion
liere. None of these authorities were of particular cogency. The most
pertinent and weighty scholarly authority on the subject which has up
to the present been qiioted in these proceedings is, in liespondent's sub-
inission, tlie opinion expressed by Professor Feinberg at The Hague
Academy of International Law in 1937,as follows:
"Like most of the writers who have, in their works, expressed a
view on the question, 1 consider that the judicial settlement clause
does not confer on Members of the League of Nations the right
unilaterally ta bring a Mandatory Power before the Court except
in cases where they can allege the violation of some right of their
own or some injury to the interests of their nationals. This inter-
pretation would seem to me to be entirely correct and in conformity
with the general scheme of the Mandates System. It is indeed
difficult to imagine that, by tlie inclusion of the judicial settlement
clause in the test of the Maiidates. it uras intended to ri-e each
.\icnit)er of the Leaye of Sations ;Ipo\i'ersu ~~xteilsiit:1h:it!vould
cnsble it to set itaelfIII:o.:iccnsur uf ttic \l.t~~datorv's:~<liiiiiiijtra-
tion. The aim pursued was certainly a more limitëd one; it was
desired ta secure compulsory reference to the Court of al1conflicts
which might arise as a result of the non-performance of obligations
assumed by the Mandatory, under the Mandate, in relation to
other Members of the League of Nations Z."
29. For tlie reasoiis aforestated, it is submitted that the Permanent
Court did not possess any function of judicial supervision in respect of
hlaiidates, sinceits competence was limited ta deciding disputes relating
to the rights or legal interests of hfembers ofthe League in the Mandate,
and hfemhers didnot individually possessany right or legalinterest in the
observance by the Mandatory of the conditions imposcd in the Mandate
for the benefit of'the inliabitants of the territory except in cases where
the breach of these obligations affected the materialinterests of individual
League hlembers, eitlier directly or through their nationals.
For this reason alone, therefore, it follows that the compromissory
clriuse could not have played any role in preventing, or assisting ta
prevent, the lapse of the Mandate on the falling away of the supervisory
functions of the League Council.

30. If Respondeot's submissions in section R of this Chapter as to
the scope of the compromissory clause are not accep!ed, the further
contention is advanced that in any event the compromissory clause has
itself lapsed, and for that reason also cannot serve to keep, or assist in
keeping, the Mandate in existence. Two reasons will be advanced why
the compromissory clriuse has lapsed, viz., firstly that on the dissolu-'

2 Quoted by Preçident Winiarski in South Werl Africa,Preliminary Obj6ctions.
Judgmenl. I.C.J. Report1962. p.455. '94 SOUTH WEST AFRICA

tion of the Permanent Court there was no judicial body rested with
jurisdiction ta hear disputes arising from the provisions of the Mandate,
and, secondly, that on the dissolution of the League of Nations no
quired for invocation of the Court's jurisdiction in terms of Article 7.
The former basis will be dealt with in this section, and the latter in the
nest succeeding section.

31. Article 7 of the Mandate made express provision for submission
of disputes ta "the Permanent Court of International Justice provided
for by Article 14 of the Covenant of the League of Nations". No sug-
gestion has ever been made that any process of iuterpretation of the
result whereby any other organ was or could be substituted for the
Permanent Court. Reference has been made to the dissolution of the
Permanent Court '. The effect of this dissolution would clearly be to
render the provisions of Article 7 inoperable, unless some new provision
was made for the substitution of another iudicial or-an for the defunct
permanent Court.
Applicants rely on Article 37 of the Statute of this Court as making
such new provision 2.
Article 37 reads as foliows:
"Whenever a treatyorco~tvention inforceprovides for reference of
a matter ta a tribunal ta have been instituted by the League of
Nations, or to the Permanent Court of International Justice, the
matter shall, as between the parties to the present Statute, be
referred to the International Court of Justice." (Italics added.)

Article 37 therefore provides for a substitution of Courts only for
tions in force. Other instruments are not affected by the terms of ths
Article.
Respondent's submission in this section will be that Article 37 is
inapplicable ta the circnmstances of this case in that the Mandate
never was, or at any rate, on dissolution of the League ceased to be,
a "treaty or convention in force".

II. Definitionof Treaty orConvention

32. In his separate opinion on the Preliminary Objections,Judge
Jessup states the following:
"The notion that there is a clear and ordinary meaning of the
word 'treaty' is a mirage. The fundamental question is whether a
State has given a promise or undertaking from which flow inter-
national legal rights and duties '."
For the purposcs of tlus arguriient Rcspndent is pre arcd to saurne
the correctncss of this proposition (despite strong autlont!. in fli;,our
of a more limited meaning) ' providcd one point is kept in mind, namely

' Vide Chap. II. para42, supla.
Vide 1, p. 88.
' South West Africn, Pveliminary ObjectiJudgmntl, Z.CJ.Reports 1962.p.402.
' Ibid.. pp475-476 (dissenting opinion of Judges Spender and Fitzmaurice). COUNTER-MEMORIAL OF SOUTH AFRICA =95

that the concept of a promise or undertaking involves ,at leaçt two
.parties, i.e., a promisor and a promisee. Thus the promise or under-
'takine will not eive rise to an international treatv relationshi~ unless
accepÏed (or deeAed to b~.acccpted) by the proinisçç. Co>rsenst<bsctween
ttic parties 1s al\wys requircd. It is subm~tted that tliis proposit~on
appears clearly or irnpliçitly fronflicautliurities quuted by the Icarirlictl
.Judge.
Thus the leariied Judge discusses the formalities required for treaties,
and concludes that oral agreementswould suffice.
He proceeds to state:
"It is also aenerallv reco~nized that there mav be unilateral
agreements, mGaning igreemënts arising out of unilateral acts in
which only one party is promisor and may weii be the only party
bound '."-

The expression "unilateral act" may give nse to some confusion.
An agreementcan,in the strict sense, never be constituted by a uni-
lateral act alone. Althongh only one party may be the promisor, the
acceptance express or implied of the promisee is required. Thus, for
instance, in the Free Zones case 2 the "unilateral manifesto" issued
I>y a domestic Sardinian organ was treated as follows by the Court:
"This Manifesto, moreover, which was issued in pursuance of
: royal orders, following upon the favourable reception by H.M. the
King of Sardinia of the request of the Canton of Valais based on
Article 3 of the said Treaty of Turin, terminated an international
dispute and settled, with binding effect as regards the =ngdom
of Sardinia, what was henceforward to be the law between the
Parties. Theconcordof wills thusrefiresentedbytheManifestoconfers
on the delimitation of the Zone of Saint-Gingolph the character
of a treaty stipulation which France must respect as Sardinia's
succcssor in the sovereignty over the territory in question '."
(Italics added.)
It a pears clearly therefore tliat this "unilateral manifesto" was
treate2 as havinf: the character of a treaty stipulation becauseit reprc-
sented theconcord-ofwills ofthefiarties. ~.
Respondent does not propose discussing the various authonties in
detail, because it is prepared to accept for the purposes of its argument
the foliowing conclusion reached by Judge Jessup:

"If the fact of agreementis established, the identification of a
document or instrument embodying the agreement is not repuired
by any de of international law. International law contains no
rule comparable to a Statute of Frauds in some municipal legal
systems. The weU-known Ihlen Declaration dealt with by the Per-
manent Court in the case of Eastnn Greenlandbecame an eneaee-
ment when it was uttered; the minute in which it was subsequën'ily
recorded waç an instrument whicli proved the fact and the content
of the engagement but these might have been proved by other
1 SouthWest Af*ico, Prcliminory Objcdions, Judgmant, I.C.J. Reports rg62.
p. 402.
Referredto ùy Judge Jmup atp. 403.
Sevies AIE. No. 46, 145.avoy and tha LJislriclof Gex, judgmcnl. 1931.P.C.I.J.,19~ SOUTH WEST AFRICA

evidence. As Judge Anzilotti said in his Dissenting Opinion (Series
AIB, No. 53.P. 91):
'There does not seem to be any mle of international law re-
quiring that agreements of this kind must necessarily be in writing.
in ordcr to be valid.'
Nothing in the form-or formlessneçs-or novelty of the Mandate,
militates ae-inst its beinr -onsidered a 'treatv' '." (Italics added.)
The last proposition in the quotation from Judge Jessup's opinion
is probably somewhat too wide-the fom or formlessness of the iIlan-
date may well be a pointer to its true nature, although not necessarily
a conclusive one.

III. Did the Righls and ObligationsIncorporatedin the Mandate Derive
theirForce/rom InternationalAgreenient ?

3:. It must be emphasized at this stage that the question is not
whether the mandate instrument was precedeù by certain agreements,
or ewrenwhether as a fact the Xandate would have been promulgated
in the absence of such antecedent agreements. The question is whether
the legal act which gave it its legal effect, \vas an international agree-
ment or not. In this respect, one miglit quote legislation in inunicipal
law as an esample. Where a law is passed unanimously because al1
interested parties had previously agreed on its terms, it nevertlieless
derivcs its effect from the \vil1of the leci-lature. and not from the con-
sent <ifilic in<li\.idu;ilj,:ilthoiigli ucli i:oiiicnt iiiay IiavI~i.~:dz !are
or ,ts/.ILIUa ii~.cc..;ar!.~>r~.r<:i~uisItc>IIICl~:is;iiigof tl~ç Içgiil.iti~2.i
Iiitlic r~r<~sc.crije.ttic niaiiclatr in,triiiiicnt ilid not take the foriii of
an agreekent, but of a council resolution. Naturally the form is not
necessarily conclusive as to the nature of the act, and it will be necessary
to consider carefullv the historv and surroundine circumstances in order

the mere fact thaïit followed on certain ameemenfs would not ber se
reiult in itj [orcc bciiig contrncrii:il. 13aîic:~ljjt.he qiit:srion must re.;olve
it;eli iiiio ail cs;iiiiiii;itioii uf tht: intention of the partics responsible
for bringing the Mandate into existence.
34. The history relating ta the framing of the Mandate has bcen
dealt with above 3. Respondent wishes to refer to certain aspects thereof
in the next succeeding paragraphs.

35. The draft Mandates were first put into the form of treaties. At
some stage the drafts werc changed to take the form of League resplu-
tions '. This is a strong indication that the parties did not. consider
the final documents as recording international agreements at a11,other-
wise there would have been no necessity for effecting any change 5.

Soulh West Africn, Prelimi+iary Objedionr, Jitdgmenl. I.C.J. Rcporls r96a. p. 405.
Vide also pp. 474-475(Judges Spender andFitzmauricç).
Ibid.. pp. 460.46(Judge Basdevant): p.qg~ (Judges Spender and Fitzmaurice).
Vide Chap. II. paras. 10.~6.upra.
4--h-.,n- - ... .
Africo, Prclimixary Objections, Judgnzcsl, I.C.J. Reports 1962.pp. 483-484.h Wesl COUNTER-MEMORIAL OF SOUTH APRlCA I97

36. It will be recalled that on 5 August rgzo the Council unanimously
approved a report and draft resolution submitted by M. Hymans
regarding the implementation of the mandate system '. In it, hl.
Hymans, inter alia, pointed out:
(a) That the allocation of the mandates was the prerogative of the
Principal l'owers, but that it reqiiired confirmation by the Council.
(b) That it would not be practical to secure agreement between Mem-
bers of the League in terms of Article 22 (8) of the Covenant as to
the demee of authoritv or administration to be esercised bv the
~anda'ior~ Powers. a ,
(c) That the Council was therefore itself entitled to define the degree
o- -uthoritv or administration. but that it would be reasonable

in view of 'the techiiical nature of this task, to make use of the
drafts already prepared by the Principal Powers.
In the result, the draft resolution clearly distinpished between the
roles of the Council in confirming the allocation of the mandates (the
granting of which was the prerogative of the Principal Powers) and
in delïning the terms of the mandates (which was the prerogative of
the Council, but which it would exercise by making use of the work
already accomplished by the experts of the Principal Powers).
Thus iii paragraph (i) the resolution requested the Principal Powers
to"name the Powers to whom they have decided 10allocale"the mandates
and to "infornt" the Council of the frontiers of the mandated territories.
On the other hand, it requested the Principal Powers to comrrrunicate
to the Council the terms and conditions of the mandates "that they
fxopose should be adopted by the Council".
Paragraph (ii) provided that the Council would "lake cognisanceof
the hfandatory Powers appoinled" but would "~xaniinethe draft man-

dates cmmicnicated to it".
Paragrapli (iii)provided that the Councilivouldnotify each hfandatory
that it was invested with the mandate, and would communicale to it
the terms aiid conditions.
It is therefore clear both from the terms of the resolution and from
the contents of the report on which it was based that, at least as from
the date of this resolution, the Council considered that it was within
its cornpetence to formulate the terms of the Mandates (agreement
between Members of the League bcing impractical) and that it took
the initiative in giving effect to the provisions of Article 22 of the
Covenant 2.
37. When the draft mandates were handed in, the Council referred
them to tlie Secretariat ". . . to consider the Mandates and to consult
other legal experts on any poiiits which they considered necessary"
It is ouite clear oncc again that the Council did not consider itself

a mere kbher stamp whose only fuuction \vas to approve the drafts
submitted to it.
38. The same point arises from the following aspect, Le., the changes
actually brought about by the Council. These are set out in Chapter II,

' VidaCliap. 11,para.13,aupra.
VideSoi'thWestAfrica. Preli+nina Objedions.Judgment, I.C.J .cporls1962.
p.486 (Judgcs Spender and Fitrrnauricc).
' L. ofN..O.].,lgzr (No. 1)p. 12.VideChap. II.para. 14, supra.?Y3 SOUTH WEST AFRICA

paragraph 15. srrpra. Of particular significance is the insertion of a
fourth paragraph in the preamble. In its natural meaning this paragraph
clearly indicates that the degree of authority,control or admtnistration
was being dehed b the Council, becausethere had been no previous
agreement by the niembers of the League. In fact one knows that there
had been no ~revious aicreement bv Members of the Leaaue, and that
Members of ihe Leaguë were notueven made aware ofthe terms of
the draft Mandates '.
In his separate opinion, Judge Jessu suggests that the expression
"Members of the League" should, in t %e context of Article zz (8) of
the Covenant and paragraph 4 of the preamble to the Mandate instru-
ment, be read as refening to the Principal Allied and Associated Powers,
or the Principal Aüied Powers 2.As a matter of construction, this would
be entirely untenable. The authors of the Covenant and the Mandate
would hardly have used the expression "Members of the League" in
different senses in different parts of these instruments. As far as the
mandate instrument is concerned. the expression "Principal Aüied and
Associated Powers" is used repeatedly (see paragraphs I and z of the
preamble) and the expression "Member [or Members] of the League"
1s equally used repeatedly (see fourth paragraph of the preamble.
Article 5.Article ,,.There is no su--estion that in one instance the two
concepgare synonymous ).
Furthermore, the references given by Judge Jessup do not bear out
his suerrestion that the ex~ression "Members of the Leaeue" was eiven
any c&ïsistent interpretatTon by the Council and its~embers toproduce
a result departing from the natural meaning of the words. Thuç M.
Hymans, in his report adopted on 5 Auyst 1920, considered this
expression to signify "al1 the signatories except Germany of the Treaty
of Versailles" or "those signatories of the Treaty of Versailles who
are Members of the League of Nations" 4. He. and since the Council
unanimously adopted the report, resumably also the other Members
of the Council, clearly therefore dij not consider the expression to refer
only to the Principal Aüied and Associated Powers. or the Principal
Aüied Powers.
Respondent does not propose dealing in detail with the further pas-
sages referred ta by tlie learned Judge. In part they merely emphasize
of the Mandatewas necessary in that they were Members of the Coun-erms
cil, which required unanimity for its resolutions 5; and in part they
rnay well have been motivated only by the consideration. expressed in
M. Hyinans' report of 5 August 19206, that agreement between the
Principal Powers was a desirable (though not essential) preliminary to
action by the Council. However that may be, there is no warrant for
finding that there ever was any general agreement that the expression

VideSouth Wa~lAfvicn. Prelinzinary Objections,J<fd$I.C.JH epot'lr1962,
pp. 500-5or(Judges Spender and Fitrmaurice).
Ibid.. p. 395.
' L.ofN.,50.J..1920(No.e6)p. 338.Fitrrnaurice).
' Vide.cg.,the statement otheBritish Prime hlinister referinSoulh Wcsl
Afriro. Prcliminary Objections.Judgmefrf,I.C.J. Keporfp. 392.
Vide Chap. II, para. 13.rupro.200 SOUTH \\'EST AFRICA

"For its confirmation, the Mandate for South West Africa took
the form of a resolution of the Councilof the League but obvjouslv it
was of a different character. It cannot he correcilv reearded as im-
bodying only an executi& action 2 pursuance of Che?oven~ut. The
hlandate,in fact andin law, is an international agreement haoing the
character of a treatv or convention. The Preamble of the Mandate
itself shows this chiracter. The agreement referred to therein was
effected by a decision of the Principal Allied and Associated Powers
including Great Britain taken on 7 May 1919 to confer a Mandate
for the Territory on His Bntannic ifiajesty and by the confirmation
of its acceptance on 9 May 1919 by the Union of South Africa. The
second and third paragraphs of the Preamble record these facts. It is
furtherstated therein that 'HisBritannic Majesty, for and on behalf
of the Govemment of the Union of South Africa ... hns under-
taken to exercise it on hehalf of the League of Nations in accordance
witli the following provisions'. These 'provisions' were formulated
'in the foiiowing Grms'.
The draft Mandate containing the explicit terms was preseuted
to the Council of the League in Uecember 1920 and, with a few
changes. was confirmed on 17 December 1020. The fourth and final
parairaph of the ~reamble' recites the {ravisions of Article 22,
paragraph 8,of the Covenant, and then 'confirmin-:the said Mandate,
defitieç{ts terms as follows: ..'
Thus it can be seen from what has heen stated above that this
type of instrument coiiposite in nature and instituting a novelcial
international regime. It incorporates a definiteagreementcoiisisting
in the conferment and acceptance of a hlandate for South West
Africa. a brovisional or tentative agreement on the terms of this
an date 6etween the Principal ~lïied and Associated Powers to
be proposed to the Council of the Leaaue of Xations and a Iorvnal
coniirmation aereementon the terms therein exolicitlv defined hv

th> charactér of a trëatv or convention and embodvine international
engagements for the ilandatory as defined by'the Council and
accepted by the Alandatory '."(Italie added.)
Now the "definite agreement" consisting of the conferment and
acceptnnce of the Mandate was not incorporated in the mandate instru-
ment-the preamble merely States that this agreement had taken place
previously. It seems clear that this "agreement" \vas merely a prelimi-
nary act. The Mandate could not operate as such before its terms had
been settled in one of the two ways provided for in Article 22 (8).The
"provisional or tentative agreement" among the Principal Powers inter
se clearly did not estahlish the Afandatory's rights aiid obligations. The
vital stage in the Judgment of the Court is to be found in the last
portion of the above quotation commencing with the words "and a
forma1confirmation agreement". Xo reasons are advanced for the Court's
concliision that this act of the Council's amounted to an agreement,
or that the Council therein represented the League and its Members.

' VidaSoriihlVcsfAlrica, PreliminarObfeciionsJudpwenl. I.C.J. Rafiorls 1962,
PP. 330-331. COUNTER-MEMORIALOF SOUTH AFRICA 201

43. Judge Bustamante, in dealing with this matter 1,recognizes that
the "'pre-agreemeiit' by which one or more Powers allocated the
Mandate for a particular territory to another State" was "a matter out-
side the League of Nati~ns"~. The actual mandate instrument is,
however, in his view, an agreement, and acceptance by the Mandatory
was at least implied ". . . above ail, because in fact the very exercise
of the Mandate was objective evidence of the agreement of the
Mandatory" 3.
This reasoning presupposes-

(a) that the Council, in defining the terms of the Mandate, intended
to enter into an agreement, and not to pass a resolution; and
(b) that, in exercising the Mandate, the Mandatory was doing more
than merely recognizing the right of the Council to pass the resolu-
tion in questioii, aiid was in fact accepting an offer proposed by the
Council in its resolution.

Xeither of these presuppositions is established by the learned Judge,
or is, in Respondent's respectful submission valid.
In regard to non-registration of the mandate instrument under
Article 16 of the Covenant, Judge Bustamante emphasizes that the
form of registration of, and publicity for, declaratory instruments of
the Council are similar to, and equally effective as, registration in terms
of Article 16. He also emphasizes that a mandate is in many respects
different from an ordiiiary treaty 4.
In this respect, it must however, be pointed out that Respondent is
not, for the purpose of the present argument, submitting that the

Mandate was inualid because it was not a treaty or was not registered
as such, but that its non-registration suggests that it was not considered
a trealy. From this point of view. the differences between Mandates
and ordinary treaties, and the differencebetween the mannes of securing
publicity for the two types of instrument, both point to the conclusion
that they were regarded as basically dissimilar instruments.
44. Judge Jessup, in his separate opinion, refers to the following
agreements:

(a) The first agreement was the decision of the Council of Four on
7 May Igrg to confer the Mandate on Respondent 5.
(b) The second agreement was the agreement by the Principal Powers
on the terms to be proposed to the Council of the League 6.
(c) The third agreement was the acceptance by the hIandatory of
the Mandate as nllocated in the firstagreement between the Principal
Allied and Associated Powcrs; and the acceptance of the second
agreement between the Priiicipal Powers by which the terms of

the Xandate were formulated 7.

' South lVest Africe. Preiiminary Obic~lions,Judgntent, I.C.J. Reports 1962,
PP-358-360 371-374.
Ibid..p. 358.
Ibid..p. 3.59.
' Ibid.,p. 399.-360. 371.373.
Ibid..pp.399-joo.
7 Ibid.,p.400.202 SOUTH WEST AERICA

(d) The fourth agreement was "the entire body of the Council's reso-
lution" in defining the final tems of the Mandate '.
(e) The fifth agreement was the compromissory clause as distinct
from the rest of the Mandate 2.
It is submitted that the first three "pre-agreements" (to use Judge
Bustamante's descri~tion) did not establish the Mandatorv's riehts and
obligations under the Mandate. Before such rights and obÏigations
could be created, Article 22 8) of the Covenant had to be complied with.
This was efiected by the iouncil's resolution of 17 December ïgzo.
With regard to the "fourth agreement", it is submitted that it is arti-
ficial to treat the Council'sact asan agreement merely becanse it repre-
sented the unanimous decision of the Council of which Britain, being
also the representative of the ùlandatory, was a Member. In terms of
Article 22 (8)of the Covenant, the degree ofauthority, control or admin-
istration to be exercised by the hlandatory could be established by
agreement only if such agreement was reached by the Members of the
League-agreement among Members of the Council would not have been
sufficient. No other provision gave the Members of the Council any power
to define the terms of Mandates by means of agreement with the Man-
datory. Such agreement could not bind the League (as an entity) or its
hlembers. The "fifth agreement" considers the compromissory clause
in isolation from the rest of the hlandate. In this regard Respondent
~espectfully associates itself with the following passage from the joint
dissenting opinion of Judges Spender and Fitzmanrice.
"We recomize in this connection that it mav be temotine to
regard an instrument containing an adjudication clause ipa&cu-
larly one worded LikeArticle ?-'the Mandatory aqees .. .', etc.)
as 6eing protafito of a convenfional character. We 80 not however
think it possible or legitimate todetach and isolate one provision of
an instrument, ascribe a treaty character to it and then, on that
basis. deem a similar character to be therebv im~arted to the whole
instrhment. Article 7. standing on its own: codd not be a 'treaty
or convention' for the purposes of Article 17 of the Statute, for
an adjudication clause,-standing on its 0x6, and apart from the
context in which it occurs, is meaningless and can have no real
existence. It could not be interpreted, and certainly could not be
applied in isolation. The fact that it is in the instrument may indeed
be a pointer to the character of the latter, may afford some evidence
as to the nature of the instrument: but that is all. Moreover, it
would seem that ifone did detach Article 7 from the rest of the
Mandate, it would then assume the character of a uiiilateral declara-
tion involving a unilateral assumption of obligation. since the
Mandatory alone gave the undcrtaking. Unilateral declarations
niay contain undertakings, and cari certainly crcate valid inter-
national obligations; but, as noted above, they do not come within
the category of treaties. conventions or other forms of international
agreements, since they have no bilateral character

' South WartAfrica, PveliminarObjeclionJudg>nent,I.C.J. Report1962.p. 400.
Ibid., p. qor.
3 Ibid.p. 478. 45. Judge hlbanefo's arguments with regard to this issue may be
surnmed upas follows':

4a) After posing the question: "If the Mandate Declaration was never
a treaty, by what right then did the Respondent assume the ad-
ministration of the temtory?", the learned Judges States:
"For upwards of 40 years it has administered the territory
because it regarded the Declaration as a treaty or convention
empowering it to do so on the tems therein set out. If the law
of estoppel has any meaning or a plication in international law
the Respondent would be preclude i from raising such an issue on
the face of its own conduct during the past 40 years Z."
The reasoning seems to be based on a prffiupposition that the
Mandate could not have had any validity unless it was a treaty
and that therefore the recognition by the Mandatory of its vaiidity
necessady involved a recognition of its character as a treaty or
other international agreement. This argument fds away if it is
appreciated that Respondent does not assert that the Mandate
was invalid ab initio; it merely contends that its vaiidity did not
arise from international agreement. It accepts that the Mandate
was vaiid as a Council resolution in terms of Article zz (8). . the
Covenant.
(6) As authority for the view that the Mandate was an international
agreement, the leamed Jud e refers to the 1950 Advisory Opinion
and the Mavrommatis case . In neither case, however, was there
any dispute as to whether the Mandate's legal effect derived from
international agreement or not.
(c) Finaiiy, Judge illbanefo holds that the Mandate is a treaty be-
cause it was "an annex to the Covenant" or "part of Article 22
of the Covenant" in that the Councii'spower to define the terms of
the Mandate derived from Article zz (8) of the Covenant '.
It is respectfully submitted that this finding is untenable. The Ifan-
date does not purport to be an annex to the Covenant. and in fact
was concluded long after the Covenant came into force. A document
recording the exercise of a power granted by an enabling instrument
clearly does not become part of such instrument. For instance, a statute
passed by virtue of some power in a Constitution, does not become
part of the Constitution. If Judge Mbanefo's reasoning is correct, every
statute passed, e.g., by the legislature of the United States of America
mnst be considered a part of, or an annex to,its Constitution '.
46. To sum up, a number of agreements have been suggested as being
the international agreement which gave the Mandate its binding force.
Respondent concedes that a number of agreements were concluded
])rior to the promulgation of the Mandate, but denies that they, whether
considered singly or together, can be regarded as the constitutive
source of the rights and obligations recorded in the mandate instmment.

' Saulh West Africn. Preliminary Ohicctions. Judfment.I.C.J.Rcporlr ,1962.
I'P.Ibid.. p. 440.
Ibid.. p. 441.Vide also p.442.
' Videalso thefurther examples set outin South WcrlAfrico. Prelitninnry Ob-
jections. Judgmenl. I.C.J. Repo1962.p. 4gr (Judges Spender andFitzmaurice);
and pp. ggg-600(Judge van Wyk).204 SOUTH WEST AFRICA

On the contrary, Respondent submits that the Mandate was created
in the instrument of the same date. This decisive act can in iio sense
be described as an international agreement, since it is, for the reasonç
stated above, botli in form and substance a Council resolution and no
more or less '.

47. The conclusion that the Mandate did not derive its legal effect
from international agreement, is strengthened when one considcrs who
could conceivably have been parties to any mandate agreement. This
topic wiUbe dealt with in the next succeeding paragraphs.
IV. Who Coz~ldHave Been the Parties to any Mandate Agreement?

48. An analysis of the above question shows that there exists con-
siderable doubt whether any international person other than the Man-
datory could have been a contractual party to the Mandate. Since an
agreement cannot exist unless there are at least two parties, it would
follow that, if this doubt were justified, the lack of parties would be a
further reason why the Nandate could not be considered as ever having
been an international agreement.
But an exainiiiation of who could have been parties to a mandate
agreement is important also for the purposes of Respondent's alterna-
tive argument in the event of the Court finding that the Mandate was
initially a treaty or convention. Respondent's basic submissions in this
regard may be rendered as follows:
(a) For a treaty or convention to have effective existence, therc must
of necessity be at least two parties possessed of international
personality. who enter into an agreement and between whom the
intended rights and obligations can operate as provisions thereof.
(b) Likemise, for its continued operation as sucli, a treaty or conven-
tion requires the continuation in being of at least two parties pos-
sessed of international personality, who can inter se and by reason
of the contractual nexus betweeii them, claim observance of the
agreed rights or performance of the agreed obligations.
(c) When by extinction of parties to a treaty or convention their
number is reduced to one, its continued contractual operation be-
tween parties becomes impossible in fact,and the continued exist-
ence of contractual rights and obligations as between international
persons, by reason of that treaty or convention, is rendered impos-
sible inlaw.
(d) Such extinction of parties could occur in varions Lvays,e.g., their
extinction as States, or their ceasing to be parties although re-
maining in existence as States. And there may be various reasons
for ceasina to be a Dartv. ex.. release b. a-reement. or loss of an
agreed qualification'for beinga party.
(e) Upon dissolution of the League there was sucli ai1 extinction of
al1~arties (other than the Rlandatorvl between whom the Mandate
couid previously have had contractiikl operation.

Vidai.n thiregard. also the declarakofnJudge Spiropoulos at pp. 347-348.
and the dissenting opiniofsJudge Basdevant at pp. 460-462 and Judge vWyk
atp. 598. COUNTER-MEMOR OFALOUTH AFRICA 205

) Even if the Mandate is regarded as having ab inilio been a "treaty
or convention", there thus ceased to be in operation a mandate
agreement,Le., a "treaty or convention in force3'-and tliat so quite
irrespective of the auestion whether certain vested consequences
of the agreement rehained in existence for a reason independent
of the continued contractual operation thereof.

Respondent wili therefore consider in turn the various entities that
have been, or may be, suggested as being, apart from the mandatory,
-partiesto a mandate agreement.
49. The Principal Allied and AssociatedPowers.
Although the group of States linown at the time as the Principal
Aliied and Associated Powers participated, under that name, in the
.establishment of the mandate system, in the manner and to the estent
indicated above ',the terms of the respective mandate instruments did
.not, eitlier by themselves or as read against the background of Article
22 of the Covenant, provide for any function to be fulfilled by the
Principal Powers as such in the operation of the system. In other
words, the instruments did not confer rights or impose obligations upon
the Principal Powers as a body or group, or as individual States because
.of their membership of that body or group. It is significant that the
.original idea of casting the hlaiidates into the fom of treaties between
the respective l\landatories and the Principal Poivers was abandoned 2.
'Theirrole as Principal Powers was apparently intended to be transitional
only, namely to esercise their power of disposa1 over the ex-enemy
territories in such a way as to get the mandate system establislied in
.respect of such territories. Tlieir CO-operationwas particularly neces-
.sas. with a view to the establishment of the respective Afandatories'
.title to the territories. Having done what was necessary from their
:side to achieve that purpose, their function as Priiicipal Powers in this
respect was fulfilled. In the operation of the system itself the role con-
templated for them \i.ould be tliat of individual Mandatories, or of
Members of the League ',or of both.

$0. The absence of any contractual nexzcs as far as the Principal
Powers were concerned, is further evidenced by the fact that, although
-the United States of America had participated in the allocation of the
Mandates and in the earlier drafting of the B and C Mandates. it was
.motpresent at the Council Meetings of December 1920 (since it was not
.a hfember of the League) and was unaware of what had been sub-
mitted to the Council in the form of draft mandates, or of wliat action
-the Council had taken thereanent, until after the event. Moreover, in
.the separate treaty which the United States concluded with Germany
-in Berlin in 1921. it reserved for itself al1 rights and advantages set
,out in the Treaty of Versailles for the Principal Allied and Associated
Powers, including those concerning the former German colonies, and
.stipulated that it should not be bonnd by any action taken by the
League of Nations unless the United States should expressly give assent
to such action. \Vhether the United States ever did expressly give its

VideChap. II, para. 5-gsupra
2 Ihid, nxra r r
'Article4of the Covenant provided that they wauld also be permanent Members
.ofthe Councilofthe League. 206 SOUTH WEST AFRICA

consent to tlie terms of the Mandate for South West Africa, does not
appear '.
51. It is also significant that the Powers have never claimed any
rights as a separate party to the mandate instmments, or any interest
in any mandate otherwise than as Mandatories or Members of the
Council. This is particularly significant when one considers the events
at the last session of the League Assembly in April 1946. No suggestion
was then made that in respect of BIandates the Principal Powers 2pos-
sessed rights which would survive the dissolution of the League. or
that the consent of the Principal Powers would be required for any
future variation of the Mandates. In this regard Judges Spender and
Fitzmaurice drew attention to the League resolution of 18 April 1946.
which referred to the Mandatories' intentions to continue to discharge
their obligations under the Mandates "until other arrangements have
been agreed to between the United Nations and the respectzueMandatory
Powers" (italics added by Judges Spender and Fitzmaurice) 3. If the
Principal Powers considered that they had any rights, this would have
heen the stage to assert them, particularly since their position was
not as firmlv entrenched in the United Nations Oreani-ation as it had
been in the League of Nations.
On the contrary, however, at least one of the Principal Powers,
namely Great Britain, in relation to the Mandate for Iraq, had pre-
viously recognized the sole competence of the Council to agree to the
terms of the Mandate. The details are set out in the joint dissenting
opinion of Judges Spender and Fitzmaurice ' and it is not necessary
to repeat them here.
52. Finally. the provisions of paragraph I of Article7 of the Mandate
seem to exclude any possibility of the Principal Powers being parties
to a mandate agreement. This paragraph read as follows: "The consent
of the Council of the League of Nations is required for any modification
of the terms of the present Mandate."
It is difficult to conceive of the Principal Powers being parties to
an instrument, but leaving the power to modify it in other hands
53. Judge Jessup holds that:
6,
.. . the Mandate agreement was, in 1945, and was on 4 November
Principal Allied Powers. The contractual arrangement between the
Mandatory and the four Principal Powers was not terminated by
the dissolution of the League and therefore the rights and obliga-
tions of the four Powers at any rate were not affected by the disso-
lution of the League, and the rights vested in third States bene-
ficiaries, which category includes the Appiicants, persist as long
as this treaty is in force. The only theory on which it can be said

pp. 496-497 (Judges Spender and Fitzmaurice).tionr,Judgmcnf. I.C.J. Rc1962,
Three of whom were not represented at the Session.z.the United States of
Amenca, Japan and Italy.
Vide South West Africa. Prsliminavy Objections.Judgnzcntj.IReports196s.
P. 499.
' Zbid., p. 498. footnoI.
' Ibid., pp. 497-498. COUNTER-MEMORIALOF SOUTHAFRICA =O7

that this treaty is no longer in force would be one posited on the
total elimination of the Mandate in every respect '."
The "contractual arrangement" referred to in this passage, isthe "pre-
agreement" relating to the provisional formulation of the terms of the
Mandate 2. It does not refer to the conferment of the Mandate, which
happened by agreement with the Principal Allied and Associated Powers
(including the United States of America), not only the Principal Allied
Powers (i.e., Great Britain, France, Italy and Japan) 3.
The last two sentences of this quotation are, it is submitted, unsound
for the reasons set out above '.This "contractual arrangement" clearly
did not establish tlie rights and obligations of the Mandatory. The
intention at al1times was that it should be superseded either by a forma1
convention, or by a resolution of the Council in terms of Article 22 (8)

of the Covenant. In fact the latter method was employed.
Judge Jessup does not deal with the various arguments advanced
above which tend to show that there never was any intention that the
Principal Powers should be contractual parties to the Mandate.
54. The Leagueof Nations.
In determining whether the League was a party to, and derived con-
tractual rights from, the Mandates, the hrst question of importance is
whether the League could be regarded as a legal personaand a subject of

international law.
There is considerable authority in favour of the proposition that the
League was a legal persona.
Thus QuincyWright stated:
"There remains the possibility that the League is itself a penon-
ality capable of contracting obligations and acquiring rights. apart
from its members. This is the most generally accepted theory ... '"
And Oppenheim stated:

"The question of the legal nature of the League was a matter of
considerable controversy. The predominant opinion was that tlie
League, while being a juristic person sui generis, was a subject of
international law and an International Person side by side with the
several States 6."
55. If. in consonance with these authorities, the view is accepted

'South West Africa. Prcliminnvy Objections,Judgmcnt, I.C.J. RcPwls 1962. p. 416.
Ibid., pp. 399-400 (JudgeJessup). Vidz also para. 44, supra.
' Vidc paras. 44, 49-52. supra.
J Wright. op. çit., p. 366. Vide the various authorities quoted in foot52 (a)
on that page. Vide also Starke, J. G.. An Inlroducti10Inttnintiaol Law (3rded.).
p. 57; Verdroîç. A.. Die Verfassunt dcr V6lkerrcchts~enrcinrchaft(1926). p. 51:
\Villiams. J. F.."The Status of the bague of Nations in International Law:'.
I.L.A., Rep XXXIV (1926). pp. 688-689.
Oppenheim, L.,IntarnationalLnw (8th ed.). Vol. 1. p. 384, Vide the authorities
quoted in footnote 2. Vidc alço Schwarzenberger, G.. Intcnzational Law (3rd ed.),
Vol. 1,p. 138 (quoted at 1,p. 308); Rcpnralion for Injurier SuUered in the Sewica
of fhz Unitcd Nalias, Adoirory Opinion, I.C.J. Reports 1949.p. 179 (quoted at 1,
p. 3ogJ;and Commr<nicolions/rom theSm's$FcderalCouncilconcming th8Dipiornatic
Immunitics to Be Accorded tofheStaf of theLeagueofNaliar and of theInt~rnationol
LabourOncc in L. of N., O.J., 1926 (No. IO).pp. 1407. 1422, of which Article 1
is quotedat 1,p. 309.208 SOUTH WEST AFRICA

that the League was an international legal persotw (and stiU on the
assumption that the Mandates were in fact agreements) it must follow
that the League itself was a party to the mandate agreements and
derived contractual rights therefrom correlative to the obligations im-
posed upon the respective Mandatories. Article 22 (2) of the Covenant
rendered clear that the respective hlandatories would fulfiltheir functions
"as Mandatories on behalf of theLeagale".(Italics added.) Consequently,
on the premise of "the League" being a legal persona, the Council's role
in entering into themandate agreements ivith the respective Mandatories
would be of the nature of an agency performed on behalf of the League,
rvhereby the latter would be constituted a party to the mandate agree-
ments. In fact, each of the mandate instruments records in its preamble
the hlandatory's undertaking to exercise its Mandate "on behalf of the
League of Xations"; and it was such a Mandate that was in eacli case
cotzfirmed by the Council as "the said Mandate", and the terms of
which were definedby the Council in pursuance of Article 22 (8)of the
Covenant.
56. In the above regard some views on the part of Members of the
Coiirt were revealed in the Judgment and opinions on the Preliminary
Objections in this matter. The Court held that the hfandate was an
agreement "between the Mandatory and the Couricil represetztingthe
Leagareand ils Members" ',and said:
"The Mandate for South West Africa. like all the other Mandates,
is:in iiitcrnational instrument of XII iiitiriitioiial chars<tcr.10 hich
Ihz Luiigt<eof .\'alini!s.reprrsriirrJL! rhî Ci,r<ncil,:,os trsilu I'urt).
It 151112 imulcinciit;itiuiiiof:iiiiiistiriitioiii\r.liii;il1th,: lIcrnl>cr
Statesare interested as siich 2." (Italics added.)

The Court, therefore, accc ted !oth that the League \vas a legal
p.. .na, and that it (and its ilembers) were represented by the Coun-
CI1'.
Judges Spender and Fitzmaurice, on the other hand, were inclined
to doubt whetlier the Leagiie had legal personality '.
As wiU appear hereunder5, it is in the ultimate analysis of nocon-
sequence to Kespondent which of these viewsiscorrect sinçe.in Respon-
dent's submission, on either basis al1 entities which could have been
parties to a mandate agreement fell away on dissolution of the League.
57. The MembersofTheLeague.
There are a number of formidable àifficulties in the way of finding
that the hfembers of the Leagiie were parties to any mandate agree-
ment. Firstly, the espression "Alandatories on behalf of the League" in
Article 22 of the Covenant and in the mandate inst~ment would be
inapt if Members of the League were to be regarded as partie to the
Mandate. It should then have read, "Mandatories on behalf of Memb~rs
of the League". Secondly,it is clear that the Members did not partici-
pate directly in the conclusion of any mandate agreement. They could

' South lï-cst Africa, PreliminaryObjecfions,JudIg.C ,.i.R>epor.ts 1962, 331.
Ibid., p. 332.
' As far asthe Itlembers of the Lcagueareconcerned, vide para.57, infrn.
' South West AfricaP ,relimi>tnOrbyjection Judgmcnt. I.C.J. Reports 1962,
pp. 475 (footnate1).pz.
' Vide para 6,. infra. COUNTER-MEMORIAL OF SOUTH AFRICA Zog

were authorized to act on their behalf. No such authority can be founders)
in the Covenant or in the mandateinstrument,or anywhere else.
Perhaps, the strongest indication that the Members of the League

were not considered to be parties to the Mandate derives from the
amendment effected by the Council to the compromissory clause as
draft provided for compulsory jurisdiction in the event of disputestthe
"between the illembers of the League of Nations". This was altered by
the Council to relate only to disputes "between the Mandatory and
another Member of the League of Nations". This change "was inspired
by the consideration that Members of the League other than the Man-
datory could not be forced against their wili ta submit their differences
to the Permanent Court of International Justice" '.
Had the Council been authorized to act on behaif of Members,or
had the Members been parties to the Mandate on any other basis, thi5
consideration could not arise, since they would have consented to jwis-
diction by becoming such parties Z.
These difficulties were not dealt with by the Court in its Judgment on
the Preliminary Objections when it held that the hfandate was an
ameement between the hlandatorv and the Council "renresentine the
~iague and its Members" 3. -
Respondent submits, for the reason aforestated, tbat the Members
of the League were not parties to a mandate agreement. Upontheaccept-
ance of this submission, it would follow that the Mandate could have
been an international agreement ab initia only if the League were a legal
persona. For if the League did not possess legal personality and if the
hfembers of the League were not parties to a mandate agreement,
then. since Res ndent contends tbat no otherpersons could have been
parties, the i andate could not have been an international agree-
ment '.

58. If despite the strong indications to the contrary dealt with above,
it should be held that Members of the League (with or without the
League as a CO-party),became arties to a mandate agreement-whether
through the agency of some otger international person or perçons, or by
way of contract for the benefit of member States as third parties-they
could, as Respondent will submit elsewhere by reason of the qualifica-
tion upon which those contractual any) were dependent, re-
main parties only as Ion as they of the League. Con-
sequently they could, in fiec;mdent's submission, not have remained
parties after dissolution of the League.
59. The Inhabitants of theMandated Territory.
In his separate opinion on the Preliminary Objections Judge ust tg
mante expressed the view that the populations of the mandated tem-
tories were, in the mandate system, "recognized as having the capacity

1 Vide Chap. II.para.16,supra.
Vide generally South West Africn. Prelimi>rnryObjections. judgment, I.C.J.
Reports1969, pp.499.50~ (Judges Spender and Fitrmaunce).
' Vide para.48.supra. . .
Vide paras.69-84. infra. 210 SOUTH WEST APRICA

of legal persons"' and that they "are in fact parties to the mandate
agreements and represented by the League of Xations" 2.
Judges Spender and Fitzmaurice, in their joint dissenting opinion.
referred to the proposition that the inhabitants of the mandate terri-
tory were "directly or indirectly parties" to the hfandates as "obviously
untenable", and tbey consequently refrained from even cxamining this
proposition 3.

60. It is submitted that whatever mieht have been the oosition of the
peoples inhabiting A Mandated areas'j, the inhabitarits'of a C Man-
dated area could not on ordinarv principles of international customarv
law be regarded collectivcly as Ln'intemational person or separately &
international persons.
The possibility exists that individuals, though not ordinary or fuii
subjects of international law, can by agreement between States become
the bearers of rights in international law in a sense and to an estent
intended bv the parties to such ameement. Whether sucli iiitent exists in
a particulgr cas6 is always a maiter for interpretation of.the agreement
in question 5. The general trend of opinion appears to be that rights in
international law -&niiot be considëred to have been conferred upon
individuals unless thcre is covenanted for them procedural capacity to
pursue their interests in an international political and/or judicial forum
In the case of the C Mandates, although obligations imposed upon
the Mandatories were undoubtedly intended for the benefit of thein-
habitants of the territories, there is nothing to indicate that rights in
international law vis-à-vis the Mandatories were intended to be con-
ferred upon them. In this regard it will be recaiied that there was a
proposa1 during the drafting of the Mandates to grant rights to indivi-
duals to move the Permanent Court 6.It is si~nificant however that
tliis rifiht \vas prupojid to hc.graiitiil in 'stililc~tsor citizen5 uf States
>lcmbrrs of rtie I.eaguc of Sntiorii" ancl iiot to tlic intinbitaiit; of man-
datcd territories, and that itdid nnt relate totheesr.riise hv the >l;iiidarorv
ofthe "sacred t&t" provisionsof the~andate, butpurelyfo theprovisio<s
inserted for the benefit of citizens of League hlembers. This shows that

the States responsible for the drafting of the mandate provisions never
contemplated a right of access to the Court for the inhabitants of the
territory-and, in the final event, even the right proposed for utizens of
League Members was not agreed to.
Certain writers suggest that the inhabitants were,in a sense, accorded
rights in international law vis-à-vis the Mandatories in that they were
uermitted the facilitv of ~etitionine the Leaeue '.It is to be recaUed.
however that there was'no provi$on for suzh petitions either in the
mandate instmments or in the Covenant of the Leame; and the Man-
South WestAfrica. Preliminary Objections,JudgmentI.C .. Rcporls 1962p. 354.
Vidc also pp. 356. 362-363. 369.
Ibid...o-""<.
Ibid., p. 496.
As to which vide Wright, op. cit.,460.
' Vidc François. J. P. A.. Gradlijnenuaiihct Volkenrecht(2nd ed.). pp. 227-231;
Korowicz. hl. St.. "The Problem ofthe International Personalitvof Individuals",
A.J.I.L., Vol. 50(1956), pp. 53656'
Vidc Chap. II, para. iz.supvo.
7 Vide, cg., Wright.O#. cil.p.4...
8 Vide Chip. II,para.'zo,supra. COUNTER-MEMORIAL OF SOUTH AFRlCA 211

datories did not by international agreement undertake any obligations
relative to petitions by iiiliabitants. In sofar as therules of procedure.
as laid down by the Council, required petitions from inhabitants to be
forwarded through theres e~tiveMandatories, this was in reality directed
towards affording the &/andatories an opportunity of commentirig on
the contents of the petitions. If there could be said to have been an
obligation upon the Mandatories to forward the petitions to the League,
the obligation was of a procedural nature only, concerning the hfan-
datories' relationship with the League; and it was not of the nature of
an obligation towards the inhabitants undertaken by treaty or couven-
tion. hloreover, althougli inhabitants could szrbnzitpetitions, they had
no capacity of pzrrsz~iltsuch petitions in the proceedings of the League
itself; even consideration of tlie petitions depended entirely upon the
willof the Members and organs of the League. In al1these circumstances
it seems erroneous to suggest that the facility for submitting petitions
wasto beregarded as a right in international law,vested intheinhabitants
vis-à-vis tlie Mandatories.
However, evenif such a suggestion could be countenanced, the "right"
:involved therein would have been dependent entirely on tlie existence
of the supervisory body. Upon the dissolution of the League and the
consequent lapse of the Mandatories' obligation to report and account
to the Council as supervisory organ, the very basis of the suggested
"right" on the part of theinhabitants also feu away.
In the result no possibility exists of the inhabitants having rights
which involve any procedural capacity for them in an international fortria.
whether political or legal. If they could possibly be said to have rights
in internationallaw in any other sense, such a proposition would have
to be fonnded on some basis other than regarding them as contractual
:parties to the Mandate.
61. For the reasons aforestated, Respondent submits that:
(a) Neither the Principal Allied and Associated I'owers, nor the in-
habitants of the mandated territory, could Iiave been parties to
any mandate agreement.
(b) The only ossible parties, apart from the Mandatory, could have
been the E eague and/or its Members in their capacities as such,
and even that is doubtful.
(c) The circle of possible parties (apart from the Mandatory) is therefore
no wider than the 1.eague and/or its hlembers in their capacities
as such,and ondissolution of theLeague both feu away-the League
was then no longer in existence, and no States could thereafter
retain their capacities as hlembers of the League. Consequently,
on dissolution of the League, the Mandate ceased being a "treaty
or convention in force" if it had ever been one'.
62. It wiUbe convenient at this stage to advert briefly to the attitude
<ofthe majority members of the Court to this aspect in the Judgment
and opinions on the Preliminary Objections.
63. TheJudgment ofthe~ourt.~
It will be recalle2that the Court held that the parties to the Mandate
' Vide South West Africa, Pveliminory ObjectJudgmcnt.I.C.J. Reports 1962.
pp 347-348 (Judge Spiropoulos); 503 (Judges Spender and Fitzrnaurice)598.
(Judge van Wyk).The other rninority Judges did not deal with this point.
Vide para.56,supra.212 SOUTH WEST AFRICA

were, apart from the Mandatory, the League of Nations and its Mem-
bers. The Court based its conclusion that the Mandate continued as a
"treaty or convention" even afterthe dissolution of the League, on two
grounds. Firstly '. it relied on the 1950 Advisory Opinion. The 1950
Opinion did not. however, deal with the question whether the Mandate
continued in force as a treaty or conventionor who the parties thereto
could have been. In the wordsof Judges Spender and Fitzmaurice:
"The issue arising on Article 37 of the Statute is whether the Man-
date is in force as a Ireatyor conuention.For this purpose it is not
sufficient to rely on the Court's 1950 Opinion asestablishing that the
Mandate is. in any case, in force on annstitutionalbasis2."

The Court also relied on the alleged agreement of April 1946 '. An
agreement in 1946 could conceivably have kept the Mandate alive in
an amended or tmncated form between new parties. For the reasons
stated helow 'Respondent submits, however, that this did not happen.
64. Judge Bustamante.

Judge Bustamante. it wiiibe recalled, conceived of the Mandate as
an agreement between the Mandatory and the population under Man-
date.These parties both survived the dissolution of the League s.
Whether the po ulation ofthe mandated temtory could be regarded
as a party to the R andate, has been considered above, where it is sub-
mitted thatthe answer must be inthe negative 6.
In addition Judge Bustamante considered that the Lea e resolu-
tion of 18 A ri1 1946 "recognized" the survival of the J andates as
"intemationa P conventions in force" 7. The effect of this resolution is
discussed below '.

6j. JudgeJessup.
Judge Jessup relied on a contractual arrangement between Respond-
ent and the Principal Powersn. It has been subrnitted above that the
four Principal Powers could not be regarded as parties to any Mandate
agreemcut 9.
In addition his reasoning regarding an undertaking by the Maridatory
on 9 Aprilrg46 'O,was advanced as further support for his conclusion
that there can still be said to be a treaty or convention in force. This is
dealt with below', where it is submitted that this undertaking did not
give rise to any legal rights.

South West Africa, Preliminary Obicdions. Judgnze>tf, I.C.J. Rcp1969,
PP.333-334.
Ibid., p. 495. Vidt also p. 472.
Ibid.p.334 read withp. 338.
' Vide paras. 114-135. infro.
J Vide paras59-Go.supvo.iminaryObjedions.JudgmI.C.J. Rcporl1961p,.369.
South West Africn, Preliminnry Objediorrs.Judgmcnt. I.C.J1962.p.370.
Ibid., p. ~IG.
Vide paras. 49-53, suera.
'0South West Atricn.Preliminary Objections, Judgmenl. I.C.J. Rcpo1962, COUNTER-AIEMORIAL OF SOUTH AFRlCA z13

66. Judge Mbanefo.
It seems that Judge Mbanefo's reasoning ' may be summarized as
follows:
(a) The Court in the 1950 Advisory Opinion held that the Mandate still
existed.
(b) No distinction can be dramn between the Mandate asan agreement
and the Mandate as an objective institution.
(c) Therefore the Mandate as an agreement still exists.
Judge Mbanefo did not advert to the question who the parties ta the
Mandate could be at present. In fact his reasoningZ merely leads him
to the conclusion that the rights and obligations in tems of the Man-
date stili exist "in so far as they are still ca able of being exercised
and enforced . . ." '. This is, in his view, suffcient to dispose of the
matter. since if the riehts and oblie-tioiis stili exist. the instrument
&eatini them must stilïbe in force.
The crucial aspect of Judge Mbanefo's reasoning is therefore that
t--e Mandate can exist onlv as ail international ameement. Althoueh
lie purports to folio~ the ;gjo Advisory opinion: he thus reachesua
conclusion which in Respondent's submission, is the opposite to that
reached by the Court in 1950. The Court then dealt mainly with an
argument that the Mandate as a whole had lapsed when, on the dis-
r;olution of the League, there were no longer contractual parties to
it. This argument was rejected by the Court on the basis that the Man-
date was capable of existence independently of any continuing con-
tractual aspect '.The Court was thus in 1950 able to decide that the
Mandate continued irrespective of whether tbere were still contractual
parties to it. Judge Mbanefo now uses this continued existence as a
bais for finding that there are still contractual arties to the Mandate.
If Judge Mbanefo were correct that the Man ate cannot exist other-
.,visethan as a treaty or convention, it would in Respondent's submission
foiiow that the Mandate as a whole must now have lapsed, solely by
reason of there being no longer any contractualparties thereto.

V. ConclusionregardingtheDissolutionof thePermanentCourt

67. For the reasons aforestated, Respondent submits that the Man-
date never was, or at any rate, since the dissolution of the League of
Nations, no longer is, a "treaty or convention in force".
The effect of this submission is that Article 37 of the Statute of this
Court, could not (in any event as from the date of dissolution of the
League) operatc so as to effect a substitution of this Court for the
Permanent Court in respect of disputes falling under Article 7 of
the Mandate. Consequently there is, at any rate since the dissolution of
the League, no tribunal vested with jurisdiction to determine disputes
falling under Article 7 of the Mandate.

' South Wesl Africa, PrrlintinaryObjeclions. Judgmeni. I.C.J.Reporls 1962.
PP. 442 fi-
' Ibid.p..445.-445.
' Inlernalional SlatsfSouth-1Vesl Africa. Advisory Opinion, I.Reporlsrg50,
p.132.214 SOUTH WEST AFRICA

The above in itself would provide a complete answer to any sugges-
tion that the provisions of the compromissory clause could have played
any role in keeping the Mandate alive.
In the next section of this Chapter, Respondent wiU deal with the
further reason why, in its submission, the compromissory clause has
lapsed, namely that since dissolution of the League no States possess
the qualification, Le., Membership of the League, which was required
for invocation of tlie compromissory clause.

I. Introductory

68. The compromissory clause provided for the adjudication of dis-
putes "between the Mandatory and another hlember of the League of
Nations". Since the dissolution of the League no State can claim to be
"another Member of the League of Nations", unless this expression
ordinq, niraii;iig of thc \i.ordsdiInetlie absencr:of such an interprctàtion,

to invokconitsiiow vesrs in States not fnllinrc.\vitIiiithe cntecorv of 3Icrn-
bers of the League. Such a change could: in the circumscances of this
case, conceivably have been brought about only by a term to be implied
in the Mandate itself, or by an agreement, express or implied, concluded
during the years 1945-194 or by the operation of some objective mle
of international law 1. These various possibilities will be considered
in turn.

Il. Interpretation of the Phrase "AnotherMemberof the League O/
Nations"

69. As in ail cases of intemretation. the obiect must be to ascertain
the;iitcntion of thc pnrties ;i;csprcs.icd iiitlii\irittzii (locuniciit, rend
aj :i ~vholt?.in tlir. liglit tli~circuin~r;~iiicjcuiiriii::;rttlic tiiiiof iti
execution. .
In the present case, the phrase which is in essence to be interpreted.
viz.". another Member of the League of Nations", occurs in the context
of a compromissory clause in which the Mandatory consented to the
jurisdiction of an international tribunal in respect of certain types of
disputes. The cousent is quaïified, inter alia, with reference to the other
party to such dispute. And the reference is not to another State or
States by name, but to another State or States to which the expression
"Member of the League of Nations" applies.
The immediate linguistic context is:
"... ifany dispute whatever should arisebetween the Mandatoryand
another Memher of the League of Nations .. .suchdispute. . . shall
besubmitted .. .".(Italie added.)

In thiscontext, not only the literal but also the natural and ordinary
The approach is consequently the same as that ndopted inçeeking toascertain
whethcr Article 6 of the Mandate survived the dissolution of the League. Vide
Chap. III. para.19,supra. COUNTER-MEMOR IFLSOUTH AFRICA 2x5

meaning of the language is that the expression "Member of the League
of Nations" must apply to the other party at the time when the dispute
arises.i.e..atthe timë of oberationor Zncidence of the clause. as envis-ged
i:lierein-otheru~ije theC&L' \\.il1not becoverc.r0).tlic consent.
The eflect of thii natural construçtiori md.v bc esprcr;scrliit\iro\irvi,
each of the same practical import. namely:
(a) that the expression"another hlember of the League ..." is des-
criptive, with reference to the lime of envisaged application of
the clause, or
(b) that the right of the other State is conditionalupon its complying
with a qualificationat the time of envisagedapplicationof the clause.
This natural and ordinary meaning of the phrase derives support
from the probabilities and surrounding circumstances, which will be
iconsideredhereafter.

70. An analysis of the Covenant, in pursuance of which the mandate
instmment \vas framed, clearly shows that the expression "Member of
rhe League", wherever it occurred in the Covenant, carried the same
requirement as above, namely that of membershiputthetime ofenvisaged
applicationofthe provision in question-Le.. when such provision would
be sought to be invoked for the exercise of a right or for enforcement
of an obligation due by another. This entails that such provision could
not have heen invoked by or against any State which had either never
joined the League, orhad ceased to be a Member pnor to such purported
invocation.
71. The Covenant provided, inter alia, as follows with regard to
membership in the League:
(a) "The original Members of the League of Nations shall be those
of the Signatories whicharenamed inthe Annex to this Covenant
and also such of those other States named in the Annex as shall
accede without rescrvation to this Covenant." (Art. I (I).)
(b) "Any fully self-goveming State, Dominion or Colony not
named in the Annex may become a hlember of the League if
its admission is agreed to by two-thirds of the Assembly,
~.--i~ ~~ . ." (Art. I >-,~;
(c) "Any Memberof the League may, after two years' notice of its
intention so to do, withdraw from the Leame, p-ovi~-d . .."
(Art. r (3).)
(d) "Any Member of the League which has violated any covenant
of the League may be declared to be no longer a Memberofthe
League by a vote of the Council concurred in by the Represen-
tatives ofal1theother hlembers of the Leame.represented there-
on.'' (Art. 16(4).)
(e) "Xo such amendment [to the Covenant] shaii bind any hlember
of the League which signifies its dissent therefrom, but in that
case it shali cease to be a îvIemberof the League." (Art. 26 (z).)
72. In al1escept four of the Articles of ttic Coveiiant (the cxt:eptions
being Art3 2, 3, ?T tirid ri) the csprcssion "!Jembc.r(s) of thc Letigue"
is erni>lovwi:niid thnt so in dr:ilinlr hoth \vitIl rirlits and I>eriefitscon-
ferrecf on member States and withobiigations aGd duties imposed on
them. As examples the following are mentioned:216 SOUTH WEST AFRICA

Article 3: Assembly consists of Representatives of "the alembers
of the League". "Each &lemberof the League" has one vote.
Article 4: Kepresentation in the Council for the Principal Powers
and "four other Members of the League" to be elected by the Assem-
h--,.
Article 6: Obligation imposed upon "the Members of the League"
to contribute to expenses of Secretariat in accordance with appor-
tioArticle7: Diplomatic privileges and immunities of Representatives
of "Members of the League".
Article 8: Obligation upon "the Members of the League" to inter-
change information as to armaments, etc.
Article12: Obligation upon "the illembers of the League" to sub-
mit disputes between themselves to arhitration.
Article 15: Obligation upon "Members of the League" to suhmit
disputes between themselves to the Council of the League.
Article zz: Equal opportunities for trade and commerce of "other
Members of the League".
These provisions may be used to demonstrate the absurd results that
would ensue if the construction suggested above were not followed,
i.e., if the construction were to be that States which had never been,
or had ceased to be. Hembers of the Leaeue. would nevertheless be
entitled to the right; and subject to the obligations embodied in the
Covenant. The followina illustrations sbould suffice:
The non-Member woild have a seat and a vote in the Assembly
(Art. 3) and could be elected a Member of the Council (Art. 4); it could
be held liable for a contribution to the expenses of the Secretariat
(Art. 6); and desuite the fact that it had been refused membership
or evpellcd (in pii&uance of Art. 16)by re3soii of iicts of w;ir perpetrateil
by it.3leiiibers ivoiild nc\.erthc.less I>eobliged to siil)mit informatioii
to it in regard to their atmaments, military, naval and air programmes
(Art. 81.
That only Members of the League were subject to any obligations
nnder the Covenant, is illustrated also by the proviso in the last para-
graph of Article 1, to the effect that a Member was allowed to with-
draw voluntarily, on the two years' notice there prescribed, only if "al1
its obligations under this covenant shail have been fulfilied at the time
of its withdrawal".
73. Certain provisions of the Covenant were such that non-Members
of the League could benefit from them, in an indirect manner or by
the grace of the Lcague or its Members. Thus promotion of the League's
general object "to achieve international peace and security" ' would
certainly benefit di nations, whether Nembers of the League or not.
But this factor would not, by itself, enable such non-member States
to claim that they were parties to the Covenant or that its provisions
conferred any rights or legal interests upon them,as little as they woiild
have been prepared to accept a suggestion that the provisions of the
Covenant imposed any legal obligations upon them. Throughout the
Covenant the intention was clear that in so far asits provisions conferred
rights or legal interests or imposed legal obligations upon States, they
' Prearnble ofthe Covenant. COUNTER-MEMORIAL OF SOUTH AFRICA 217

did so with reference only to Members of the League. There were no
provisions, capable of being interpreted as stipulations for the benefit
(ofnon-member States, resnlting in "legal interests" being vested in
such States. and capable of being turned into rights by acceptance or
iexerciseon their part. The basicpurpose of the authors of the Covenant
.in that regard was obvious, viz., to reserve rights and legal interests
!or such States as were, inter dia, willing to accept also the obligations
of membership.

provisions of Articless16 and 17 of the Covenant. Article 16 provided
that a Member resorting to war "in disregard of its covenants under
Articles 12, 13 or 15", would be deemed, ipso facto, to have committed
an act of war against ail other lllembers of the League; the latter would
then be obliged to take certain action against the "covenant-breaking
State" and to support one another in tbat regard. Articles 12,13and 15
related to methods of peaceful settlement of disputes, but only disputes
betweenMembers of the League: hence Article 16 applied only where a
Member had failed to resort to tliose methods relative to such disputes.
Article 17 proceeded to deal with disputes between a Meinber and a
non-member State or between non-member States inter se, in order
to make, for such cases, provision corresponding to that contained in
Article16.But as a prerequisite it prescribed that non-Membersinvolved
insuch a dispute should be "invited to accept the obligations of hfember-
çhip in the League for the purposes of such dispute, upon such conditions
as the Council may deem jnst". Upon acceptance of the invitation the
provisions of Articles 12 to 16 would apply, with such modifications
as the Council might deem necessary: in other words, the non-member
State(s) would then have. the benefitof those provisions, on the same
bais as League Members, but only aber acceptance of corresponding
Members'obligations.In the event of a non-Member's refusal to accept
the obligations of membership for the purposes of a dispute, and resorting
to war against a League hlember. the provisions of Article 16 would
apply "as against" it: in other words the non-Member could then expe-
rience the detrimentenvisaged by Article 16 (for protection of a League
Member), but could not invoke the benefitthereof upon being attacked
by another State.
75. In terms of Article 22 of the Covenant the "tutelage" entrusted
to Mandatories over mandated territories would be exercised "on be-
half of the Leugue".The Mandatories were, therefore, in terms of Article
22. to be responsible to the League-in other words, either to a distinct
international entity existing apart from its hlembers, or to a collection
of States which together formed an association. On either supposition
non-Members would again be excluded from the circle of international
persons intended to acquire or hold rights against the Mandatory.
76. Likewise an analysis of the mandate instruments made in pur-
suance of the Covenant shows that in so far as legal rights or interests
were incorporated for States other than the hlandatory, whether for
their own benefit or for that of the inhabitants of mandated terntories,
such rights or interests were intended to be enjoyed by a State only
while it was a Member-thus again a requirement of membership ut
the lime of envisagedapplication, i.e., of exercise of such rights or enjoy-
ment of such interests.218 SOUTH WEST AFRICA

77. The vreambles state that the Mandatories undertgok to exercise
th& Mandates "on behalf of the League". This was merely a projection
of the languace used in Article 22 (2) of the Covenant, and expressed
the same concevt. namelv that the klandatories were to be res~onsible
to the Le:igue, êitheras 3.distinct internatioiial enrit). or.îjniiAa.isocia-
tion of States. On either supi>osition, non-\lembers would again be
excluded from the circle of iniernational versons iutended to ëxercise
rights against the Mandatories.
78. The provisions of the mandate instmments in terms of which
rights and privileges were granted to States other than the Ilandatory,
render it clear that such rights and privileges were not intended to be
available to States other than Members of the League.
The expression "Member of the League of Nations" was used in ali
the B and C Mandates where provision was made for rights of entry,
movement and residence to be enjoyed by missionaries wbo were
nationals of "any State Members of the League of Natioiis" '.
Pursuant to paragraph 5 of Article 22 of the Covenant, ail the B
Mandates provided for equal opportunities for the trade and commerce
of other "hIembers of the League of Nations" in the said Ilandated
territories Z.
Somewhat similar provisions in favour of "Members of the League
of Nations" were contained in some of the A Mandates 3.
In al1the aforesaid provisions, the expression "hlember of the League
of Nations" could have been used in one sense only, namely Blembers
at the time when the intended privilege was sought to be enjoyed, and
never been, or had ceased to be,
Members of the League.s which had

79. Strange anomalies, similar to those discussed in paragraph 72
above, would be involved in a suggestion that the above rights or legal
interests would be available to States which had never been filembers
of the League, or had ceased being Members. Such States may have
been refused admission as nIembers of the Leaeue. or mav have been
espellçd, b~<.:~iiic of bclliger~ncy. biit woiild &\~crtlieles~ I>e cntitled
to cal1 tlic 1laii~l;itoryti) t:isk c~iicerning fortificntion oft1.tTcrritt-~r).
or niilitarv traiiiinc oftlitSatives. or. in tlii, case o:\ ancl 13Mandates.
insist on "open douar "rivileges for a11their nationals.
80. The practice of States and of the League itself bears out that
non-Members were not intended to possess rights or legal interests de-
riving from the Covenant or the mandate instmments. Thus:
(a) The United States of America, which did not join the League,
entered into separate treaties with certain Mandatories in order to
secure the same rights in the territories as Members of the League '.
(b) When Germany, in 1yz5,prior to becomiiig a Member of the League,

Ruanda-Uriindi (Art. 8); Mandate for Gerrnan Samoa (Art. 5): Mandate for South
West Africa (Art.5)in U.N. Doc. Alïo.
2 Vide. e.g., British Afandate for Togoland (Ar6):British Mandate forTangan-
yika(Art. 7); Belgian hlandate for Ruanda-Urundi (Art. 7) in U.N. Doc. A/~O.,
Vide, cg., RIandate for Syria and the Lebanon (ArII); hlandate for Palestine
(Art. 18)in U.N. Doc. Al7o.
' VidcAIcSair, A. D., "Mandates". C.L.J., Vol. IIXo. 2 (rgzS) p. 157; XVright.
op. cit.p. 55; Hall. H. D., diondates, Departd~nciesand TrirrtceahiP (1948). p. 140. COUNTER-MEMORIAL OF SOUTH AFRICA 21g

raised a complaint about Mandatory administration by Belgium
in Ruanda-Urundi, the Council of the League declined to reply
thereto, and the Belgian Govemment rejected the complaint, inter
alia, on the express grounds that the Covenant "confers rights
only upon States which are Members of the League of Nations"
and that so long as Germany is not a Memher of the League she
has no right or title to intervene. ..'
(c) Wright refers also to an Aliied exchange of notes with Germany
hefore the signing of the Covenant as clearly suggesting that
Members only would be entitled to the benefits of the Covenant.
One of the notes stated, iptleralia, that "as soon as Germany 1s
admitted to the League, she would enjoy the benefit of these
provisions" (i.e., of Art. 23) Z.
SI. It is precisely for the reasons aforestated that the compulsory
jurisdiction clauses in the mandate instruments were so worded as to
make the provisions thereof available to Memhers of the League only.
It could never have been the intention of the Council of the League
that a State which had ceased to he a Member of the League, should
be entitled to implead before the Court a Mandatory of the League
with regard to the administration of a mandated territory-a matter in
which such State, by reason of termination of its membership, had no
further legal interest. Any contrary view must permit of the strange
result that sucli a State, though having no longer a seat in the League
of Nations and heing unable to raise in the League for its considecation
a matter concerning the interpretation or application of the proyisions
of the Mandate, could nevertheless raise the very same maver in con-
tentious proccedings before the Court, possibly even in confict with an
attitude unanimously resolved upon by the Council.
Nor can it he conceived that the respective Mandatories, in agreeing
to the terms of the compulsory jurisdiction clause. intended to accept
compulsory jurisdiction at the instance of a State which, though at
one time a Member of the League, had ceased to be such.
82. The above observations would he al1 the more forcible if it
should be held (contrary to Respondent's submission ahove) that the
compulsory jurisdiction clause entitled a State to rcfcr to the Court also
matters which did not affect itself or its subjccts, but solely concerned
the interests of the inhabitants of the mandated territory. The Man-
datory, even though it may have been exercising its Mandate in complete
accordance with the views of the League, may nevertheless then still
have been obliged to entertain negotiations with, and be subject to
judicial proceedings instituted by, a State which was no longer a League
Member and which held a view with regard to aspects of Mandate
administration in conflict with that of the Mandatory and the League
i. -.-.
This could iiot have been the intention of the authors of, or parties
to, the mandate instruments.
83. That the League itself regarded membership as a qualification for

' Vide L. ofN., O.J.,1927 (Xo. 3). pp. 3r6-317. Vide also Wrightop.cif.. pp.
493-Wright. op.oit., pp494-495.
3 Vide paras.2-zg.supra.220 SOUTH WEST AFRICA

the questioning by another State of the administration of mandate&
territories, is evidenced by the League's refusal to answer the com-
plaints of Germany, made wberi the latter was not a Member of the
League, with regard to the administration by Belgium of the mandated
territory of Ruanda-Urnndi '.
It is submitted that the League would have adopted the same attitude
if this question had arisen after termination of Germany's membership
of the League, and that Germany would not then, upon the League's
refusa1to entertain its complaint, have been entitled to raise the same
complaint in contentious proceedings before the Court.

84. For the foregoing reasons, Respondent submits that the natural
meanine of the phrase "another hlember of the Leame of Nations"
is confi-med by ieference to context and relevant exfraneous circum-
stances.
85-..Judg-eMcNair's Descriptive Meaning.
In his separate opinion in Sir Arnold hlcNair suggested a meaning
different from that contended for bv Kes~ondent. He said:
". .. 1 have endeavoured to show tbat the aereement between the
Mandatory and other Members of the ~ea~ueknbodied in the Man-~
date isstill 'inforce'.Theexfiression'MemberoftheLeaaueof Nations'
is descriptiue,in my opinion, motconditional;and dois IZ& mean 'sa.
long as the League exists and they are Members of (Itaiics.
added.)
Hy "descriptive .. . not conditional" the learned Judge apparently
meant that the expression "Member of the League" was employed to.
identify States which were intended to have the competence provided
for in Article 7, without prescribing a condition or qualification to be
complied with by such States for retaining such competence. Respond-
ent has respectfully to point out, however, that to speak of descrip
tive" in this sense solves nothing, save upon reference to a point or^
period of time at or during whicb the identification by description is
intended to apply. Respondent has shown that upon the natural inter-
pretation contended for by it, the meaning assigned to the expression^
"another Member of the League" is also "descriptive", but only with
reference to the time of intended application of the clause-which in
effect renders the competence conditional.

86. If the "descriptive" meaniug is tested with reference to membef-
ship at other concei\,able points or periods of time, the following impli-
cations emerge:
(iz) The time of enleringi»to the mandate.This would:
(i) exclude States which might later become hfembers-a most im-
~robable contemolation: and
(ii)ireserve the cornpeten& to invoke Article 7 for a State which
resiens or is es~elled from the Leaeue durinrr it" lifetime-again -
moG improbahlé and anomalous. -
(b) Any time: The same as in (a) (ii).
(c) The time of dissolzdion of the Leagiie: This would have rendered

1 A matter dealt with inpara. 80 (b), supra.
I~~tcrnotiaalStaturofSouth-WestAfrica,Advirory Opinion, I.C.J. Repor1950,
PP. 158-159. COUNTER-MEMORIALOF SOUTH AFRICA 221

the clause completely unworkable during the lifetime of the League,
been unascertained.titled to invoke it would ex hypothesi still have

(c) the clause completely unworkableeaguduring the lifetime of the League,
since the States entitled to invoke it wonld ex hypothesi still have
been unascertained.
(d) A combinationof twoperiods or points of time, whereby, during the
lifetime of the League, regard was to be had to the time of intended
application of the provision in question, and after dissolution of
the Leame. to the time of dissolution. This would:
{i) involve the logical absurdity that the meaning of the expression
"another Member of the League" malr be different at different
points of time;
{ii) distinguish between States losing membership before dissolution,
and States losing memhership at dissolution-a distinction for
which there is no iustification in the wordinl: of Article 7 or
of any other of the Mandate; -
(iii) attribute to the parties to the Mandate, at the time of its creation,
an intention to regulate consequences of a possible future dissolu-
tion of the League, in circumstances incapable of being exactly
foreseen-an improbability, for which the language of Article 7
and of the Mandate as a whole aeain affords no iustification:
(ivl ~iiurcspscific:illv :ittril>iiri,to rhc partieI<)LULn int~mtion to
prc.ervc, tiftcr possihl<,fiitiiri, dissuliiofotlie T.c~gue.curnpc-
tencc for ru-\lcmbcri to obtain adjudication hy a Court ttiçeftçc-
tivc esistciir(i\vIiit:\v;is!ino\rn to bi,dcpendent un tlie 1,c:iguc.-
:t~aina niost iiiil)rub:ilileintcnt. iinlcss coupl\vitItlie cq~iall\,
-
CO& alive after théLeague's demise.
When regard is further had to the fact that each of the above alter-
natives would involve giving an unnatural and strained meaning to
the language of a compulsory jurisdiction clause, it becomes evident
that none of them can weigh up against the natural meaning supported
by the considerations dealt with ahove.
87. Since Applicants at one stage seemed to rely on Judge McNair's
formulation ', Respondent in the Preliminary Objections dealt with its
applicability z. Thereafter Applicants addressed no argument to the
Court on this aspect, although Respondent again dealt fully with the
matter in the Oral Proceedings on the Preliminary Objections 3.

88. The Judgment and Opinions on thePreliminary Objections.
In the Judgment and opinions on the Preliminary Objections, only
Judges Bustamante and Jessup appear to have adopted reasoning which
purported to assign a different meaning to the expression "another
Memher of the League" than the one contended for by Respondent.
Their opinions wiU be considered hereunder. Although the Judgment
also stated its approach to this question as one of interpretation, the
context makes it clear, in Kespondent's submission, that the word "in-

Vide 1,pp.go, 439.
VIOral Proceedings8,Oct. 1962.afternoan. 222 SOUTH WEST AFRICA

terpretation" was not used in the sense of assigning a meaning to a
word or expression. This will also be considered hereafter.
On the othcr hand, Judges Spiropoulos, Spender, Fitzmaurice,
Rlbanefo and van Wyk expressed views expressly or impliedly contrary
to that of Judge hlcNair '.Thus Judges Spender and Fitzmaurice said:
"It is, naturally, witli diffidence that we feel bound, for rcasons
whichwill appear, to differfrom this distinguished Judge. Lord Mc-
Nair's opinion was iiidecd an attempt, the only one whicli has ever
been made, to reconcilc such a claim as that of the present Applicants
with the actual language of Article 7. But it appears to us to have
overlooked the fact that Article 7 was never intended to apply to
any particular States as States. Xobody knew in 1920 what the
exact membership of the League would be, or what it would remain.
This membership might, and did, Vary periodically a good deal.
It was a shifting membership. At one time it might comprise
States A, B aiid C; at anotlier A and B might have dropped out,
and D and E have come in. This kind of thing occurred from time
to time. Article 7 \vas not intended to apply to any of these States,
A, U, C, D or E, as sirch.It was intended to apply to any State
which, at any given moment was-and only if and so long as it
was-a Member of the League. It \vas not intended to apply other-
wise. Therefore, if Article 7 conferred a right on Etbiopia and
Liberia, the present Applicants, it \vas solely as a consequence
of the fact that they happened to fulfil the criterion specified.
namely membership of the League. Otherwise they would iiot have
had this right 2."
89. SefiarateOpinio+t ofJi~dge Jelessup.

In his separate opinion on Respondent's Preliminary Objections,
Judge Jessup purports to follow Lord hfcNair's reasoning. It 1sthere-
fore necessary to examine Judge Jessup's opinion in some detail.
go. At the commencement of this aspect of his opinion, Judge Jessup
States the particular questioii as being concemed with the operability
or inoperability, after dissolution of the League, of the compromissory
clause in its reference to "another member of the League of Nations',' '.
He then proceeds to point out that, for the purpose of answering
this question, it is not necessary to assert that the bIembers of the
League were "parties" to the Mandate. They were, however, in his
view, third-party heneficiaries +.
Respondent respectfully agrees that the operability or otherwise of
the rights in question dcpends on the identity or capacity of the States
to whom it was intended to be granted, and not on a question of a
classification of the grantitself into one or other legal category. Respon-
dent also agrees that valid rights were granted by the Mandate, the
only question being whether there still exist States to whom the descnp
tion relative to such rights applies, or who have the necessary qualifica-
tion for the exercise of these rights.

1 South West Africa, Prcliminary Objections, Judgmnt. I.C.J .eports 1962.
p. 445 (JudgeAIbanefo);pp. 655-657 (Judgevan TVyk). Spender and Fitrmaunce):
a Ibid., p. 508.
Ibid., p. 408.
Ibid.p. 409 COUXTER-MEMOR OIALSOUTH AFRICA 223

91. Judge Jessup thereafter remarks that-

"the situation in regard to the rights of Members of the League as
third States beneficiaries may be more clearly seen in its basic ele-
meuts ... l", (Italics added.)

by r~.fcrriiitu uiic of rlic 13\llndat~j. aucli as tliat of 13~1-iiiinin respect
of Ku:~iida-CriiriJi. \vhicIi conr:iincd ririopen-door ~ird\.iîioii,1111eur/r.d,
forbiddiiic I5rlciiiiii ro discriniinritu :ic;<iiijt the rit~o~l of otlier
"~embe; of the League" in the grantiig of concessions. He then con-
tinues :
"It is not apparent why it would be reasonable to Say that while
it would have been a violation of Belaium's contractual obligation
so to discriminate against a French chen in the matter of con-
cession ou 18 April 1946, tlie day before the dissolution of the
League, Belgium would have been free so to discriminate on 20
April 1946. On the contrary, ifBelgium had so ùiscriminated on

zo April, France could properly (if diplomatic negotiations failed to
result in a settlement) have seized the Court of this dispute con-
cerning the interpretation or application of the Mandate, relying
on Article 13 of the Mandate for Ruanda-Urundi (which contains
a compromissory clause identical with that in Article 7 of the
Mandate for South West Africa), and on Article 37 of the Statute
to which both Belgium and France are parties l."
Respondent, with respect, finds this reasoning difficult to under-

s-and~ ~irstlv, .he reference to the riehtsuof Members of the Leaaue -
"as tliird Stntc hcncfici~rics" seenis er.tiruly pointlcjs. As poiiited out
above, the enquiry relates to the idzntitj. or cnpacity of the benofici+es,
not to tlitcl:~.;siiic.itionof tlie le~.alactivhrrt:l~vtlicv bcc:unehcrieficianes.
Whether they were direct to a cont;act, or third State bene-
ficiaries, cannot provide any answer to the question whetlier the rights
were iutended to vest in them only in their capacities as Members of
the League, or in their individual capacities ?.
Secondly, the conclusion reached in the last sentence of the quoted
passage, is not supported by any re<asoningat all, Save that it would
not be "reasonable" to assert the contrary. Hy this the leamed member
of the Court is presumably not to be understood as suggesting that
the ouestion under consideration could be iudiciaüv resolved on the
basis'of what a Judge regards as "reasonablé" in thécircumstances. It
seems that he rather had in mind the principle of interpretation which,
in its application to the question uuder discussion, would be to the
effect that the authors of the Mandate are not to be presumed to have
intended to achieve an unreasonable or anomalous result. But a mere
statement of this principle refutes its applicability in the manner
apparently contemplated by Judge Jessup. As the leamed Judge him-

self points out: ". . . the Mandates were drawn np as part of the whole
Leaeue svstem. a svstem which it was fondlv ho~e< in A 1,10< would
becgme uhiver&l" S.'
Dnring the existence of the "League system" there was nothing un-

South West Africa, Preliminvry Objediar.Judgment, I.C.J. Rq3ortr196a. p4".
Ibid., pp509-560 (Judges Spender and Fitzrnaurice).
3 Ibid., p4'2.224 SOUTH WEST AFRICA

reasonable or anomalous involved in the contemplation that loss of
League membership would result in loss of benefits stipulated for
Members of the League: this is aiso conceded by Judge Jessup later in
his opinion '. Thus, if France had resigned from the League say on
19April of a particular year, the position in Ruanda-Urundi would
indeed have been that:
"... while it would have been a violation of Bel~um's contractual
obligation so to discriminate against a French citiien ... on 18April
... Bel-ium would have been free so to discriminateon 20 April ...2"
It is not clear whv the same result. flowine from termination of
membership by dissolution of the ~eabe, beromes unreasonable or
anomalous or othenvise inconsistent with the 'probable intent of the
authors of the Mandate-particularly when it is borne in mind that
the authors did not purport to provide at ail for such dissolution or its
consequences, but did provide in the Mandate for machinery for amend-
ment which could be utilized unon unforeseen chanees of circumstances '.
Indeed, if the result under diLcussioncould be re6rded as unreasonable
or anomalous at au, that would be because of failnre on the part of the
parties concerned to make provision for adaptation at the stage of disso-
lution, and not because of unreasonable intentions on the part of the
authors ofthe Mandate.
92. Judge Jessup continues to apply the same "reasonableness" argu-
ment to the missionary clause in the South West Africa Mandate '. He
.States that there is ni iustification"aç a matter of common sense and
rcx$oii:ible construction' for a conclusion that the provision III.\rticle
5 of the Mandate rcquinng the lree admiision of riiissionltrizswho werz
nationals of a "\iember of tlie I.eac.-ie" Ianîcd on dissolution of the
League.
Respondent is unable to follow this reasoning. As in the previous
.example Judge Jessup, notwithstanding the clear language ofthe instru-
ment, rejects as contrary to "common sense and reasonable construc-
tion" a result which seems to flow inevitably from the language used
and from the practical design of an instmment "drawn up as part of
the whole League system".
93. Having thus already concluded on the basis of the "reasonable-
ness" argument that these rovisions in favour of "Members of the
League of Nations" surviverfthe dissolution of the League of Nations
in favour of States as yet unspecified, Judge Jessup addresses himself
to the onestion whether the exoression "Member of the Leame of -
~ations"does not provide some ol;stacle in this regard.
The arg-ment calling for an answer is put bv him as follows:
"Rut, it is argued, the right of the French missionary to enter into
or reside in SouthWest Africa depended, according to the terms of
Article 5 of the Alandate, upon the missionary being a national of a
'hfember of the League'; after the dissolution of the League there

Swth West Ahica, Priliminnry Objediorrs. Judgmenl. I.C.J. Re1962,p. 416.
Ibid., 41 I.
Art. 7 (1)of the hlandate.
'South West Africn. Preliminory Objections, Judgment. I.C.J. Reports 1962.
PP. 411-412 226 SOUTH WEST AFRICA

duration ouly, was giveti effect to by later according them the oppor-

tuBefore leaving this point it must be emphasized that the reasons
given by Judge Jessup why rights in terms of the hiandates were limited
to hlembers of the League, do not include the most important one,
namcly that the whole League system involved a reciprocity of rights
and obligations between Members. Rights in the Mandate were conse-
quently limited to States which were. by virtue of their membership,
also bound by obligationstowards the blandatory. That this was the vital
motive or reason underlying the use of the expression "JIember [or
Alembers] of the League" when granting rights in respect of the man-
dated territories to States other than the Mandatories, appears indeed
to be accepted by the learned Judge later in his opinion'.

94. That the learned Judge was dealing with motive and not inten-
tion, appears also from the next passage which reads as follows:
"The loss by the French missionary in 1946 of the quality of
beiug a national of a 'Memberof the League' did not introduce any
element of fmstration which would impede the performance of the
Mandatory's obligation to permit bis entry and residence. Granted
the reasons which have beeu suggested why there should have been
granted special rights to the klembers in 1919,such reasons would
not be applicable in 1946; cessantel'ationelegis,cessatipsa lez. If the
Mandatory claimed the right to limit the privileges to missiouaries
who were nationals of States which were Members of the League
when the League came to an end,the claim would be reasonable and
it would avoid any charge that there wasimposed on the Rfandatory
an obligation more onerous than that which it had originally as-
sumed 2."
Analysis reveals a number of different concepts in this passage.
(a) Themarimcessanterationelegis,cessat@salez.
The meaning of this maxim is that when the reasons (or motive)
giving rise to a lawor some other provision fall away, the law or provision
itself must lapse. Whatever the scope of this principle ma), be in interna-
tional lawgenerally, it is clearly inapplicable to the circumstances of the
present case. Judge Jessup does not argue that the Mandate as a wbole,
or some self-contained vrovision thereof. lav.ed when the reasons eivi., u
rise tticreto fellau;i!., h;it on tliecontracet:ksto in\.i,lir.tliis iiiauiin for
the piirlnxr of removiiig a qu:ilifiration which h~ilprcw~ioiislylimired the
txtent of an obligation. Tlierc cm be no niltof Iaw 1i:ivirigtlie t:if<ctof
iricrea~iiiçor ;iltering tlic xopc ofa State'; treaty obligations (or;itanv
rare, ohligntionj voliintarily assiinied b. the Stnte r,oncerncdl irirlioi~t
further cuiijcnt of thc St;rtc bound ttierel)~. aiid vojsiblv aminstirs\i.ill.
merely because the reasons which had pr6mpted the pktres in limiting
the obligations and correlative rights had, in the meanwhile, fallen away.
The practical effect of the application by analogy of the masim cessante
rationelegis in the present case, would be that on cessation of the ratio
or reasons for limiting rights to Members of the League, this limitation
would faIlaway altogether and the rights be available to al1States,irrespec-

' South West Africa. Preliminory Objections, Judgmcnl,I.C.J. Reports 1962,
PP.416-417.
Ibid.p. 4x2. COUNTER-DIEMORIALOF SOUTH AFRICA 227.

tive of meinberslup or p,ast inembership of the Lengue. That this would
be the logical, result-seems to be appreciated by Judge Jessup, and
consideration will be giveii below to the method whereby he seeks to
remove this anomaly by iiitroducing a new limitation, i.e., a limitation,
to States which were Membersof the League at its dissolution '.
But in any event, the iiivocatioii of tliis maxim falls down on its
basic premise, i.e., that the reasons for limiting rights to Members of the
League had fallen away prior to April 1946. .4t least the reason of
rir, \r.liicli rccngii~ïcI I t w:ii unrc.ijuii:,blc to <~xpcct a
hl.iiid~tor)~to I)c obligltecl to otli<:r St.jtq:s \vliit:Ii 1,x~Ii~ui'~cipruc;il
oblig~tioiis toit,:ita11tiiiics rétaincdits \r.îlidity.
(b )he "Elemeut of Frrlstration".
Judge Jessup refcrs at various stages of hisopinion to the "frustra-
tion" of certain of the hIandatory's obligations Z.The argument is that
because there are States who are physically capable of exercising a

certain riglit, therefore the Mandatory's obligation in that regard is
not frustrated, and therefore continues. This is, however, an irrelevant
consideration and indeed a question-begging argument. If the right in
question could, in accordance with the intention of the parties, be
exercised only by Members of the League, and no snch Members exist
aiiy more, the provision conferring such right would be fmstrated and
it could be no answer to say that there are in existence States which
are physically able to exercise the right. The frustration arises not from.
the absence of States who are physically able to exercise the right, but
from the absence of States who possess the prescribed qualification to
exercise the right.
In concentrating on a suggested lack of frustration of the Manda-
tory's obligations, Judge Jessup appears to lose sight of the fact that
a Mandatory had certain rights as well. One of the important rights
was not to be accountable or obligated to any State who was not a
Member of the League, in the familiar and orgaiiized context of the
League organization.
(c) If the Mandatory claimed fo limit privileges to States which were
Members of the League nt its dissolidion, "the claim zoouldbereasonable".
As submitted above, the logical result of applying the "cessanle ra-
tione" principle by suggested analog),, as Judge Jessup seeks to do, is
that the missionary rights clause would thereupon become available to
al1States without limitation. In order to avoid such a result, the learned
Judge provides a new limitation, i.e., a restriction to States which were
Members of the League at the time of its dissolution. In so doing, he in

tmth abandons the proposition that the term "another hlember of the
League of Nations" was descriptive and not conditional: by no method
or principle of interpretatioit can the words "another hlember of the
League of Nations" be read to mean "another Member of the I.eague
of Nations, or, after its dissolution,.any State which was such a Mcmber
as at the date of dissolution". He also derives no support in this regard
from the "cessa~iteratione" principle-for even on his application thereof,
this principle cannot serve to provide a new limitation to replace one

Vide ~ ~-narn. ,~, .~,..
' South Wed Africo, PrelintinaryObjcclions ,udgmant. I.C.J. RePorts 1961,
PP. 4'2 4x3. 414. 417.228 SOUTH WEST AFRICA

that has fallen away. The only manner in which that could have been
achieved, would have been by new consent on the part of the hlandatory.
And, on analysis, Judge Jessup's own formulation isindeed, in substance,
based on the hypothesis of a new act by the Mandatory in order to
provide the new limitation. Thus he postulates that the Mandatory
would claim a right to limit the privileges to States which were Members
of the League when it came to an end, that such a claim would be
reasonable,and that it would avoid a charge that there was imposed ou
the Mandatory an obligation more onerous than that which it had
origindy assumed.
In drawing attention to this facet of the reasoning, Respondent is
not concerned with a mere matter of wording. Whatever wording might
to produce the result arrived at by Judge Jessup, amount to somethingder
which is not intemretation of an actual leeal transaction. but evaluation
of what would haie been a reasonableatgttuddefor interésted parties to
adopt if theyshouldhavene~otiatedfor an amendmentof their transaction
in order to adaut it to the Chaneed circumstances broueht about bv the
dissolution ofthe League. In other words, the suhstanc~of the reasoning
accords with its form; which is a revision of the compromissory clause
and not an interpretation thereof.
95. A further argument is raised by Judge Jessup in the following
words:
"If it be said that only such elements of the Mandates survived as
related to the welfare. etc.. of the inhabitants. theriehtsof mis-
.;i»ii.ui<s\vuul<ltjc.iiizludcth;itgroiip uf I"u\.isior~>.The righri of
inii;ioiiariiiithe Soutli\Vr.s,\frican .\land:.tc asttout iri:\rticlc
5.which deals in general with freedom of conscience and worship.
Surely the Mandatory should iiot be privileged to interfere with the
religions lifeof theinhabitantsy expelling missionaries on April20,
1946, on the technical ground that they no longer qualified as
nationals of a Member ofthe League. If this sti@ulation@ourautrui
survived the dissolution of the League despite the reference to a
descriptive qualification which was no longer applicable, other such
stipulations could also have survived '."
The first two sentences of this passage are based on an assumed
argument which has not been used by Respondent,and which it does not
accept as correct. In the last two sentences Judge Jessu appears tu do
no more than reiterate his previous argument thatit WOU fd be anomalous
if the rights of missionaries were to faiaway on the dissolution of the
League. He seeks however to strengthen his reasoning by using the
phrase "privileged to interfere with the religious life of the inhabitants
by expelling missionaries". If the expulsion of missionaries amounted
to an interferencewith the religioiis life ofthe inhabitants. it may have
were the correct position it would entail that, even during the lifetimes
of the League, the Mandatory may possibly not have been entitled to
expel particular missionaries even although they were not nationals of
League Members. If the contrary view is held, i.e., that during the life-
time of the League al1 missionaries who were not nationals of League

' South West Africa, Preliminary Objedionr.Judgment, CC.J. R1962.p. 413. COUNTER-XEMORIAL OF SOUTH AFRICA 2zg

Members were liable to arbitrary expulsion irrespective of the effect
thereof on the religious needs of the inhabitants, there does not appear to
be any anomaly in applying the same principle after dissolution of the
League.
96. Judge Jessup next considers whether the disappearance of the
capacity of "Members of the League" caused a frustration of the Man-
datory's obligations, and cornes to the~conclusion that it did not '.This
is put as follows:
"It has been shown that the disappearance of the quality of
Member did not make Article 5 inoperable and the case is even
stronger Iiere since under Article 7 the Mandatory is not the actor,
isnot the operator, soto speak 2."
The aspect of frustration has been discussed above 3. Respondent
does not appreciate why the case is stronger under Article 7, where the
whole provision was expiicitly rendered dependent upon a matter of
League membership, as against Article 5, where the same did not apply
to the overriding general provision for "freedom of conscience and the
free exercise ofall forms of worship".
97. Judge Jessup continues:
"For the successful operation ofthe Mandateduring the life of the
Leaye, the quality of being a Member of the League was not neces-
sary to the operation of Article 7; as already shown there were quite
other reasons for referring to the Members 2."

Once again. in Respondent's submission, a confusion between reasons
for referring to Members, and the inlended meaning of the expression
"Member ofthe League". Even if it be admitted that the founders of the
League could have achieved the object involved in tlieir reasons by
other means (which is not readily apparent) the fact is that they sought
to achieve it by limitingrights to Membersof the League.
Then folloivs :
"After all, these 'hfembers of the League' were not just concepts,
'ghosts seen in the law, elusive to the grasp'. They were actuzilStates
or self-governing entities whosenames could berecited. The names or
the original hfemberswere listed in the annex to the Covenant, but it
was not a fixed group; it fluctuated as new Members were admitted
or as old Members terminated their memberships. Yet at any given
moment-as for example the moment of the dissolution ofthe League
-the Mandatory would always have been able to draw up, by names.
a list ofthe States included in the descriptive term 'Memberof the
League' '."
Respondent must confess with respect that it finds the meaning which
Judge Jessup seeks to assign to the expression "Members of the League"
to be "elusive to the grasp". Although he purports to deal with the
interpretatioii of the expression "Members of the League", Judge Jessup
at no stage indicates how bya process O/ intnpretation a resnlt is reached
different from the one contended for by Respondent. In the passage

' South lVest Africa. PrcliminavyObjed8ons. Judgment, I.C.J. Reports 1962.
PP. 413-414.
Ibid., p4'4.
' Vide para.gq (b). supra.230 SOUTH WEST AERICA

quoted above he emphasizes the fluctuation ofthe group. At what point
of time then must a State have been included in the group in order to
acquire a right which would tliereafter tiot be surrendered by loss of
membership of the group? And where does Judge Jessup find anything in
themandate instmment laying down the point of time?
Judge Jessup says that at any given moment the Mandatory would
always have been able to draw up, by names, a list of the States included
in the descriptive term "Member of the 1-eague". This statement is
correct, as far as it goes. Such a list would presumably not include
States which were no longer Members. otherwise the em~hasis on the
fluctu:ition aiid tlic given koniciit \vuuld not be intclligibie. And tlius.
ifthe !dantlütory \i.vrcat aiiy givcn manient aftzr the dissolution of thc
Lcwue to ti:i\.c <Ir~\\.nUD a Iist of llemt>ers at the rnoiiient.it\r.ould
have contained no namesivhatsoever.The learned Judge gives no reason
why a list drawu up at any time after the dissolution of the League
should reflect the iiames of States no longer Members of the League but
which were sucti immediately before dissolution.
98.In his further reasoning, Judge Jessup considers the change of
Courts effected by Article 37 of the Statute of the Court. This aspect is
not of importance in the particiilar enquiry dealt with here; Article 37
merely provides for a substitution of Courts, not of parties entitled to
invoke compromissory clauses, and Respondent does not linderstand
Judge Jessup to give a wider effect thereto. He then correlates the re-
sults of his enquiry as ta the meaning of the phrase "Members of the
League of Kations" and of the effectofArticle 37, to reach the conclusion
that Applicants have competence ta invoke jurisdiction in the present
case '.
99. Thereaftcr Judge Jessup considers the question of States who
during the lifetime of the League gave up their League membership. He
deals with it as follows:
"Are the conclusionswhich have up to this point beeii arrived at,
vitiated by a consideration of the case of a Stateuch as Rrazil which
gave up its League membership during the active lifeof the League?
I think not. While the Leagrcewas operatiag, it was natural for the
Members to intend that membership, which entailed some very de-
finite obligations-actual in the matter of hancial contributionsand
potentialh the matter ofpolitical responsibilities such as might arise
under Article 16 of the Covenant-should entail also some corre-
sponding advantages. Obviously the territorial guarantces under
Article ro of the Covenant werereciprocal and Brazil-to continue
the example-lost its right to invoke that guarantee. Similarly in
regard to economicrights in the mandated areas, a Mandatory might
well have said: 'My freedom is limited, 1 am restricted by, the
obligations which1have assumed in the Mandate and 1shall continue
to bear these burdens in respect of the large numbers of States
which are Members of the 1-eague. But since you have chosen to
leave the League, 1am not obliged to continue to subject myself to
an additional burden on your behalf.' The view set out above,
followingSir Arnold hlcKair, that the term 'Afembersof the League'

' South West Atrica. Pveliminary Objections, JudgnienI.C.J. lieporls1962.
PP. 415-416. COUNTER-MEMOR OALSOUTH AFRICA 231

was descriptive and not conditional, does not mean that upon
assuming the Mandate for South West Africa the Union of South
Africa was obligated to gant certain privileges to missionaries,
nationals of Germany. Nor does it mean that alter the resignation of
Brazil, the Union was bound to gant those privileges to nationals
of Urazil. But the situation was very different when by common
consent in 10~,.the hlandatorv i, ,ed with the other States which
\r.r.tticn .\lembcrsof tlie I.cagueiidisjol\.iiig the Leagiiî hccausctlie
Cilitcil Sarions liaiticcriesrabl~~liedin its [~lacc.lo ;<..sertchar this
Jiisolotion imni~di:atel\~frccd tlic \lnnd.,tor\f ui tlie oblir.itiuiii in
the Mandate such as ihose relating to misSionaries, in yegard to
which the disappearance of the League introduced no iota of frus-
tration or impossibility of performance, but that at the same time
the Mandatory retained rights of authority, contra1 and adminis-
tration, cannot, in the lauguage of the Court's 1950 Opinion 'be
justified'. What is said conceming the 'missionary' clauseapplies
with equal force ta the provisions in the compromissory clause of
Article 7 which provided that disputes concerning these surviving
rights might be submitted to the Court. If the Mandate survived
as an institution, the Mandatory was still subject to certain obli-
gations and those obligations were owed to the States which were
hfembers of the League at the moment when by common consent
the League was dissolved 1."
Respondent must confess to being perplexed by this passage. Judge
Jessup apparently concedes that the parties in 1920 intended that while
the League was operating, the expression "Members of the League" was
ta be given its natural meaning, and indeed for the very reason set out
above by Respondent Z. In other words, in 1920 the parties intended
rights to be accorded only to States which were Members of the League,
and only while théy were Members of the League. What then is meant
by saying the expression "Members of the League" was "descriptive .
and not conditional"? Does the learnedJudge suggest that the expression
bore a different meaning in 1946 from tliat which it had in ~gzo? Does
the learned Judge attempt ta imply a term in the Mandate? If so, on
what grounds,and how does Judge RlcNair'sformulation become relevant
to such an attempt; and how can this passage be reconciled with the
"cessanteratione"principle?
Judge Jessup does not answer these questions. He proceeds to refer
again to lack of frustration (which has been dealt with above) l; to a
conclusion which he, without reasoning, considers not "justified; to
the "common consent" of the parties in 1946 (this phrase is repeated
twice-is any significance sought to be attached to it?) to come to the
conclusion reached before, Le.. that the compromissory clause can stiU
be invoked by States which were Members of the League at its dissolu-
tion.
One is left with the conclusion that the learned Judge gave wide
and exhaustive consideration to possible bases for distinguishing be-
tween States which lost their membership of the League prior to its

' South 1Vesl Africa, Prelrnrinary Obiecfio~Judgmcnl, I.C.J. Reporls 1962.
PP. 416-417.
Vide paras. 72-7993.rupva.
' Ibid.. pura94(b).232 SOUTH WEST AFRICA

dissolution and those which lost their membership at the dissolution.
but that none of the various bases thus considered can on analysis be
regarded as sound in law.
IOO. To sum up, although Judge Jessup purports to rely on Judge
McNair's separate opinion in the 1950Advisory Proceedings, his reason-
ing in fact makes it clear tbat he does not assign a different meaning
to the expression "another Member of the League of Nations" than the
one suggested by Respondent.
His whole discussion of tbis aspect is devoted to an attempt to give
effect, not to the meaning of the words concemed, or to the intention
which the authors of the Mandate wished to express in using these
words, but to the reasons or motives which he considers gave rise to
view still retain their validity. His approach is apparently thatsince the
methods employed by the authors of the Mandate in giving effect to
their motives have become inoperable, new methods must be created to
apply to the changed circumstances the motives which still retain their
validity.
It needs no argument to establish that this approach bears no relation
to the principle enunciated by Judge McNair in 1950 or indeed to any
principle of interpretation, but amounts to the imposition of a new
obligation on the Alandatory. In addition, as respectfully demonstrated
above, several of the separate stages of Judge Jessup's reasoning are
either untenable or mutually inconsistent.
101. TheJudgment of theCourt.

In its Judgment on the Preliminary Objections, the Court commenced
its consideration of the problem raised by the words "another Member
the natural and ordinary meaning of the words should be appliedt that'.In
that regard it stated:

"But this mle of interpretation is not an absolute one. \Vhere
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'."
Although the Court thus stated its approach to this problem on the
bais of the application of mles of interpretation entitling it to depart
from the natural and ordinary meaning of the Article. Respondent
submits that the Judgment as a whole makes it clear that the Court's
cmcial finding on the problem did not rest on interpretation in the
strict sense. Interpretation of Article 7 would involve an ascertainment
of the meaning of the Article in the context of 1920. At no stage in the
was, in its view, different from that suggested by Respondent. Thession
Court itself never used the expression "Member (or Members) of the
League" in any sense which would suggest that a different meaning
was attached to it than the words seem to indicate. Reference may be
made for example, to the foiiowingpassages:

"The only effective recourse for protection of the sacred trust
would be for a Member or Members of the Leagueto invoke Article
'South West Africa, Prcliminary Objcdions. ]udgmcnl. Repovls1962.p.336. b COUNTER-MEMOR IFLSOUTH AFRICA 233

,'><<
7 ... . . . the right to implead the Mandatory Power before the
Permanent Court was speciaily and expressly conferred on the
MembersoftheLeague. . .'"
"For the manifest scope and purport of the provisions of this
understood to have a legal right ort interest in the observance by the
Mandatory of its obligations. .. .2"

States ofi11e League of Nations is an essential part of the Mandate
itself. . .'"

against the Mandatory for the same purpose in each of the otherion
Membersof the League '."(Italics added.)

In fact, some passages indicate strongly that the Court assigned the
natural meaning to the expression, Seein thisregard:
". .. an agreement was reached . .. to mainlain the rights of the
Membersof theLeague '".
". .. the literal objections derived from the words 'another Member
ofthe LeagueofNations' are not meaningful, sincetheresolulionof18
April 1946 mas adopted precisely with a viewto averling them . . . 5"
(Italics added.)
The meaning attached to the word "interpretation" in the Judgment
appears also from the followingp.s-age:
"In conclusion, any interpretation ofArticle 7or more particularly
the term tlierein 'another Member of the Leame of Nations' must
take into consideration al1of the relevant fac& and circumstances
relating to the act of dissolution of the League, in order to ascertain
the true intent and purpose of the Members of the Assembly in
adopting the finalresolutionof 18 April1946 5." (Italicsadded.)
To sum up, a fair reading of the Judgment suggests that its authors
accepted that the expression "another Member ofthe League of Nations"
in iti ori~inal contexi bore its natural and ordinarv meanina as contended
for by ~is~ondent, but that in their view special.features Ibrought about
an adaptation to the circumstances arising on the dissolution of the
League. What these featuresare, will be considered at a later stage.
102. Separate Opinion of Judge Bustamante.
Judge Bustamante deals with the interpretation of Article 7 at two
stages of his opinion. Firstly, he States as foliows:
"Thisis the explanation of the participation ofthe States Members,
alongside the League, in the compromissory clause of the Mandate
agreements. Each of these States acquiresa right oflegal intervention
to protect the interests of the mandated population; and this
right-which is at the same time a responsibilit~-extends to the
whole drrrationof the Mandate. From the entry into force of the
agreement with the Mandatory, this right of intervention of other

SolittvesfAfrica, Preli~ninaryObjcctionr,]udgment, I.C.]. Repovts r962. p. 337.
Ibid.p. 343.
' Ibid.. p. 344.
' Ibid.p. 338
Ibid.. p. 343. .<
234 SOUTH WEST AFRICA

States Members becomes part of thelegalheritageof eachoneof them,
not for the duration of the League of Nations, butfor thedurationof
the Mandate ilself. Possession of this right by the States which
acquired it thus extends beyond the life of the League of Nations,
even if the League isdissolvedbefore theespiry of the Mandate 1."
This is later amplified as follows:
"When the text of Article7refers to thestatesenjoying the benefit

of the compromissory clause, the reference to the status of States
Alembers of the Leaguc of Nations must be interpreted as a means
for theindividual identificationof thoseStates and not as a permanent
condition required for the role of applicant it&legal proceedivigs.In
other \vords, Article 7 means, in my opinion: 'States belonging to the
League of Nations and identified with the purposes of the League
shall individually have the right to require before the Permanent
Court the faithful execution of the Mandate during its entire
duration' 2."
The basic difficulty in advancing any suggested interpretation of this
sort is that it fails to provide for the case of States which, during the
lifetime of the League, lost their membership by resigiiation or as the
result of a disciplinary measurc. This in tum leads to the further diffi-
culty that there is nothing in the Article upon which such cases cau be
distinguished, as a matter of interpretation, from loss of membership
due to dissolution of the League-with the result that the distinction,
if any, must needs be sought in something which is in substance not
interpretation at all, e.g., revision, new agreement or the like.
Judge Bustamantc's opinion provides no exception in this regard.
He considers that States lost tlieir rights when leaving the League. by
resignation or expulsion 3,but that the same result did not flow from
loss of membership occasioned by the dissolution of the League, since
he regards such loss of membership uot to have been voluntary ".
103 Even on the wide interpretation of Article 7 suggested by the
learned Judge, this distinction between, on the one hand, a voluutary or
disciplinary loss of membership, and an involuntary loss on the other,
does not follow from the wording of, or indeed, £rom anything con-
tained or suggested in, Article 7. Tojustify it, something like the follow-
ing interpretation of the expression "another Member of the League of
Nations" would be required:
"-4ny State which at any stage was a hlember of the League of
Xations, Savehowever any State which either voliintarily renounced
its hlembership, or was expelied from Membership . . ."

Judge Bustamante does not Say how he reaches this conclusion as a
matter of interpretation, Savein so far as the following may have to be
regarded as directed tothat end:
"It is only in this way that the purposes of the institution can be
served.
If this interpretation were not accepted, and since the League of
Nations as such has heen dissolved, the legally unacceptable conclu-

'SIbid.p.V382.fricaPreliminary Objcctionr,Judgme~il,I.C.J. Repov1962,p. 378.
' Ibid,pp. 352.383.
' Ibid., p. 383. COUNTER-NEMORIAL OF SOUTH AFRICA 235

sion would be reached that the mandated populations would not
have had the possibiiity of recourse to international judicial author-
ity in respect of possible abuses or deviations by the Mandatory.
And it must be recalled that the right of defence before the law is
expressly mentioned in the Declaration of Human Rights '."
.And he States further:
"But the intention of the Article was not to say that: 'The States
Members of the League, so long as it continues to exist, shall indivi-
dually have the rights .. .", etc. That latter interpretation would
render ineffective the judicial security in the Mandate in the event
of the disappearance of the League of Nations; and that cannot
have been the intention of the authors of the agreement because the
effect would be to prejudice the peoples under tutelage Z."
Since the reference to the Declaration of Human Rights in the second-
last passage does not appear to have been intended as independent
justification for the learned Judge's conclusion, the whole basis of the
reasoning seems to be that any other interpretation would, by reFon
of facts which have supervened and which were unforseen in 1920, give
rise to a result which the learned Tudee considers undesirable. Clearly
such reasoning amounts to revision, and not interpretation. As was <O
ap-.y stated by .-dces -pend-r and Fitzmaurice:
"But it is not a legitimate process of interpretation to read a
provision on the basis of presumed intentions deduced in the Iight
of notliing but after-knowledge. One can only deduce intentions in
the light of what the parties might reasonably have been expected
to foresee at the time, and not on what those intentions might have
been liad the parties had an actual foreknowledge of the future.
whicli they could never in fact bave had '."

104. For the reasons advanced ahove, Respondent submits that there
is no justification for assigning to tlie expression "another Mernber of
the League of Nations" any but the natural meaning.

III. Can a Term Be Implied in the Mandate to Provide the Necessavy
Adaptation to theEzistence of the Provisions of Article 7 O/ the Mandate
alter theDissolutionoftheLeagueofNations?

' ~oj. In the light of the attitudes adopted by Applicants', this ques-
tion must be considered with a view to two ~ossibiiities. Firstly, is there
scope for an iniplicd terni IO tlie cfi,:i:tt1ihi1 Ji;;oliitii,ii tliiI.c.:ih%~
the riglits of hlcinbrrs \i.oulJ lx exercised by .\lernbers of the ncw orçani-
zatioi, Le.. the United Nations?
finding that the Mandate contained an irnplied term providing geiherdly
fortransfer ofthe League's supervisory functions to the United Nations '.
It is inconceivable that there could, by a process of general tacit intent.
have been a transfer of the rights of Members to invoke the compro-

' South West Africa.PrclirninnryOb~ecfionr.Judgmcnt, I.C.J. RtPor1962. p.379.
Ibid., p382.
' Ibdd., p. 5r5.
' Vide Chap.4IV, paras. 14-18 .upra.236 SOUTH WEST AFRICA

missory clause without there being a transfer of supewisoxy functions-
and Applicants indeed submitted that transfer in the two respects went
hand in hand '. Inasmuch as the object of the compromissory clause
was to protect the rights of League htembers, ,transfer of competence
to invoke the clause must necessarily presuppose that also the League
Members' substantive rieht- have devolved on M~ ~~ ~ of the United
Sarions '1'hcs~inçconsider;itioiiswliiclicoriclusively est;iblisli thnt therc
could Iia\.e betn iio irnplicd teriii providiiig for succession oi tlie United
Satioiis to the fiiiictiorisof rhc Leaeuc 2.~~~~c~abi~-I~ that thcrc couid
be no implied term providing for Guccession of the Members of th;
United Nations to the riah-s formerlv held bv the Members of the Leame
of Nations.
As has been pointed out ', no Member of the Court accepted Appli-
cants' submissions in regard to such succession.
106. In the second instance, the question is whether the Mandate
carried an implication that al1States which were Members of the League
at its dissolution, would continue ta have legal rights in the Mandate,
including the right ta bring contentious proceedings against the Man-
datory.
This would presuppose that the authors of tlie Mandate contemplated
the possibility of dissolution of the League, and meant toguardagainst
the disadvantages attendant thereon. Assubmitted above there is no
warrant whatsoever for such a presupposition 4.
In addition, this suggestion would have to involve that the authors
of the Mandate foresaw that on dissolution of the League, there would
nevertheless still be a Court which could exercise the functions allotted
to the Permanent Court. This would attribute an unwarranted degree
of prescience to the authors of the Mandate.
107. The "Essenlialily" oftheCompromissoryClause.

At this stage it is desirable to refer to an argument used by the Court
in its Judgment on the Preliminary Objections 5. The argument is that
the compromissory clause played a vital role in the machinery of the
League relative to mandates, in that, as the Council \vas bound by the
unanimity rule, a Mandatory could at will block any Council resolution,
and that for that reason the riglit to bring contentious proceedings was
vested in League Nembers to enable them to impose the will of the
Council on the alandatory.
Respondent has dealt with the question whether this argument is
inherently valid, and hassubmitted that it is not6. At thisstage Respond-
ent wishes to consider what relevant consequences would flow from
an assumption that tlie compromissory clause was intended to play the
vital role in the mandate system. as described by the Court.
Itis not clearwhat use the Court made of this suggested "essentiality".
As pointed out above, the principle of essentiality or maximum effect
may he used either for purposes of interpretation. i.e., to assign amean-

' 1, Pl>..429. 445-446.
Vide Chap. IV, paras. 14-i8.supra.
' Ibid.. para. rg.upro.
' South West Africa. Preli~nina- Objections. Judgment, 1.C.J. Hcporls 1962,
PP. 336 fi.
Vide paras. 13-15,supra. COUNTER-MEMOK IF SOUTH AFRICA 237

ing to a doubtful text. or as one of the factors from which an implied
-tem could be inferred '.It has also been indicated that although the
,Judgment is cast in the mould of an interpretation of Article 7, it in
Tact accepts the ordinary meaning of the words but holds that such
-meaning was extended as a result of the operation of certain features,
.of which "essentiality" in the sense above described, was one2. The
anly basis upon which "essentiality" could therefore be relevant in the
instant case is as one of the factors that might be relied upon in an
attempt to establish an implied aereement. For the present, the quest-on
iswhéthersuch an irnplicaiion arEes from the ~and'ate itself.
Dealing thcrefore with "essentiality" in the sense described in the
.Judgmeni, Le.. that the compromissoÏy clause \vas designed to impose
-the Council's wiil on the hfandatory, one must, in determining whether
.an implied term can be read into the Mandate, consider the intentions
or presumed intentions of the authors of the Mandate. If they had at al1
.contemplated the possible future dissolution of the League, they would
have realized that the Council itself, with ail its incidents, would dis-

.appear with the League. It follows that once the Council went, there
-would be no point in retaining an institution, the raison d'étreof which
was to impose the Council's will on the Mandatory. Had there been the
.essentialitv in the sense relied uoon bv the~-~~r-~ it follows therefore
that it wohd not have served as iny inkucement ta'the parties to retain
-the compulsorv -.risdiction in the event of a future dissolution of the
League.
108. Another feature relied upon by the Court was the so-called
:reliability of judicial superuision. This is expressed in the following way:
"In the second place, besides the essentiality of judicial protection

for the sacred tmst and for the iights of hlember States under the
Mandates, and the lack of capacity on the part of the League or the
Council to invoke such protection, the right to implead the Manda-
tory Power before the Permanent Court was specially and expressly
conferred on the Members of the Leae<,. evidentlv also because it
\vas I~ICniost rc1i:ibleproct.durc of tin;iiriiig protci:tlon b!. tliz Court,
wliatr\.cr nii~lit IiappénIO or :iriic from the in:ishiner). of ndmiiiii-
trative supervision 3.''
This passage may be interpreted in two ways. It may mean that the
:right to implead the Mandatory was conferred on the Members of the
League (in preference to conferring it on any other entity or body)
because Members could be relied upon to exercise this right properly.
.On this interpretation, the Court was considering only the relative
merits of varioiis possible entities as initiators of legal proceedings. If
-this is the correct reading of the Judgment. it is difficult to see the rele-
vance of this consideration to the question of survival or otherwise of
the compromissory clause after dissolution of the League.
On the other hand, it may he interpreted as meaning that theright to
implead the Mandatory usas more reliable than any other procedure,
.e.g., than administrative supervision, because the machinery of adminis-

' Vide Chap. III.para.27.supra.
Vide para. ror.supra.
Soufh West Atrica, Prelirnina~~ Obfections. Judgmenl,I.C.J. Reports 1962.
:PP. 337-338. ~38 SOUTH WEST AFRICA

trative supervision \vas more liable to cease functioning than the Court.
If.this is the correct interpretation, then it might be a factor tending
to the implication of a term in the Mandate. But it would involve that
the parties in 1920 foresaw the possibility of a break-up of the League,
realizedthat this would or might entail the completelapse of administrative
supervision, and therefore provided for judicial supervision which could
function even when administrative supervision had fallen away.
Again, however, it is quite clear that the parties in 1920 did not
foresee the possibility of a break-up of the League. And it seems com-
pletely artificial to suggest that they would in 1920 have considered the
Permanent Court to be a more durable institution than the League of
Nations, to the extent that they thought it would survive the dissolution
of the League.
log. For the reasons set ont above, Respondent submits tliat no
term can be implied in the Mandate to provide for the existence of the
provisions of Article 7 after the dissolution of the League of Nations. .

IV. Was any Agreement, Express or Implied, Entned into during the
Period 1945-1946 providit~g for the Adaptation of the Compromissory
Clanse to an Existence afterthe L)issolutionof the Leagueof Nations?

110. The Charterof the United Nations Organization.
In the 1950 Advisory Opinion, the majority of the Court held as'
follows :
"According to Article 7 of the Mandate, disputes between the
Mandatory State and another Memher of the League of Nations
relating to the interpretation or the application of the provisions
of the Mandate, if not settled by negotiation, should be submitted

to the Permanent Court of International Justice. Having regard
to Article 37 of the Statute of the International Court of Justice,
and Article 80, paragraph 1, of the Charter, the Court is of opinion
that this clause in the hlandate is still in force and that, therefore,
the Union of South Africa is nnder an obligation to accept tliecom-
pulsory jurisdiction of the Court according to those provisions '."
This passage is relied npon by the Applicants in their hlemorials 2.
It is therefore necessary to consider to what estent Article 37 of the
Statute of the Court and Article 80 (1) of the Charter may be said
to provide, or assist in providing, foran adaptation of Article 7 of the
hlandate to an existence in the absence of the League of Nations.
III. Article 37 of the Statute of the Court.
This Article is cited verbatim ahove '. It eoes no further than to sub-
stitnte the International Court of Justice ior the Permanent Court of
International Tustice in treaties or conventions containing a reference
to the latter. "
Its effect could at most 4 be to read Article 7 of the hlandate as if

it ~rovided as follows:
Inltrirolionol SinloiSoulh-West Africa,Advisory Opinion. I.C.J.Reporls 1950,
p. 138.
1, pp.88-89,
3 Vidc para. 3,. sueo.
' That is if. contrary to Respondent's submission in section C,supra,theMandate
shauld bcregarded as a"treaty or convention in force". COUNTER-MEMORIAL OF SOUTH AFRICA 239

"The hlandatory agrees that, if any dispute whatever should
arise between the Alandatory and another Member of the League of
Nations relating to the iuterpretation or the application of the
provisions of the Mandate, such dispute, if it cannot be settled by
negotiation, shall be suhinitted tothe Internationalcourt ofJustice."

When Article 37 of the Statute of the Court uras accepted by the
Sigiiatories to the Charter of the United Nations in the year 1945. the
1-eague of Nations was still in existence and it continued in existence
iintil April 1946. Article 37 of the Statute does not in terms, and was
riot intended to, amend treaties or conventions hy altering qualifica-

tions upoii xvhichthe rigbt to refer a dispute to a tribunal or the Court
xvas dependent-it merely substituted a new forum for the adjudica-
tion of disputes '.
The effect of Article 37 was discussed or referred to by various
hIemhers of the Court in the Judgment and opinions on the Prelimi-
iiary Objections 2.
Kespondent does not read the Judgment or any of the opinions as
giving a different interpretation to Article 37 than the one suggested
zibove.

112. Article 80. Paragra#h I, of theCharter.
Not only was this Article as noted above 3 referred to by the Court
in the 1950 Advisory Opinion, and relied upon by the Applicants in
l.heir hfemorials but Applicants placed particular emphasis on it in
the Oral Proceedings on the Preliminary Objections However, the

Coiirt in its Judgment on the Preliminary Objections did not base its
tinding on this Article, and indeed made no mention thereof in its
1:easoning.
In his dissenting.opi.ion Jnd-e B-sdevant referred to:
". .. the silence preserved in the reasoning of the Judgment with re-
gard to the Applicants' reference to Article 80, paragraph I, of the
Charter 6"

In view of this silence, which wns found also in the findings in the
:separate opinions, Respondent wishes to refer only to the considera-
tion already given to the effect of Article 80 (1) above 5, where it was
demonstrated that this Article was not intended to, and could not. pre-
:servethe rights of the League or its Members from lapsing as a result
(ofthe dissolution of the League of Nations.

113. (a) It is submitted therefore tbat the Charter of the United
Nations did not make any provision for the adaptation of the

1 V~deAndatrelos, Preliminory Objadion, Judg+nenl. I.C.J. Reports 1952. p. 39.
Vide also Hudson.M. O.,"The Twenty-ninth Year of the WorldCourt", A.J.I.L..
Vol. 45 (1951). p. '5; Rosenne, op. cif., p. 282.
Vid8. e.g.S,outh Weal Afnca. Prefiminnry Objections.Judgm~nl. I.C.J. Reports
7962. PP. 334-335: PP. 367-368. 376-377. 384 (ludgeBustamante): PP. 414-415
(JudgeJesçup);pp. 472-473, 505 (Judges Spender and Fitrmaurice); pp. 613-615
~.udee van Wvk-,
3 Vide Dara. 110.su.ra
' 1,p. i8.
Vide Chap. IV, para. 24, supra.
6 South Wsst Africa, Preliminary Obiecfiona.'J~~dgmcn, .J.Reports 1962.p. 459.240 SOUTH WEST AFRICA

compromissory clause to an existence alter dissolution of the League of
Nations.
(b) The further question then anses whether any other agreement
was concluded during the years 1945-1946 as a result whereof the
rights or interests 'previously possessed hy Rlemhersofthe League,
would in future he possessed by States not having the qualification
of such membership.
1x4. N'as an Agreement Concluded outside the Charter of the United
Nations during the Yerirs1945-19462

Here again. the same two alternatives are to be borne in mind as
in tlie case of possible implication in the Mandate itself 2. Thus, in the
first instance, Respondent could conceivably have agreed with the United
Nations Organization (and/or its hlembers) with or without the con-
sent of the League of Nations and101 its Members, that the rights of
Members of the League were to he transferred to Members of the
United Nations. Although, as pointed out ahove ', Applicants did in
fact contend (albeit apparently not on the basis of an agreement in
1945-1946)for a general succession of the United Nations and its Mem-
bers to the rights of the League of Nations and its Members regarding
Mandates, this contention was not accepted by any Member of the Court,
and is manifestly unsound for the reasons there set out '.
The second possibility is an agreement hetween the Mandatory and
the Members of the League of Nations wherehy the rights previously
vested in States in their capacities as Rlembers of the League would re-
main vested in them despite loss of membership. Since the Court in its
Judgment on the Preliminary Objections relied on such an agreement,
it may he convenient to consider this topic with reference to the Court's
Judgment as wiii he done in the next succeeding paragraphs.
115. The Judgment of the Court on the Preliminary Objections.
It has alreadv heen ~ointed out that the Court in its consideration of
the qiicjtion \dicther.'aftrr dissolution of ttie I.engue, tliere were still
States <~n:~litiet(l in\,oke the cornpromisior! clause. stiited itinpproach
to bc one of "iiitt~rnretntion". biit ttiiiin fnct itj (Ircision r~.stednot on
the meaning of thé words of Article 7, but on various features which
were said to have extended the meaning 5.
In paragraphs 107 and 108 above, Respondent considered the first
two features relied upon by the Court in concluding that there are still
States entitled to invoke Article 7 of the Mandate. These features are
the "essentiality" and the "reliability" of "judicial supervision". Since
"essentiality" and "reliability" of "judicial supervision" cannot hy them-
selves provide for the continuation of such "supervision" in an amended
form. thev can at most su~olv motives or reasons which mieht have
promptedAthe parties to prh;,iile for its continuation. .Assuch tïic!' rii:~).
bc factors in irnplying an agreenient. It ij not stated in the Jiidgmeiit
wliritinfercnce is dra\vn from these fenturcs. Thcy \wre dealt with above

'That is. the cornpetence to invoke the compromissory clause. asaell asthe
sribstantive rights and interests to which the clwaçeintended to relate.
Videparas. 105-106 .upro.
Vide Chap. IV. para.14,supra.
' Ibid. Vide also paras. rg-17, following thereon.
Vide para. Ior,supra. COUNTER-MEMORIAL OF SOUTH AFRICA 241

Irom the point of view of a possible implied term arising from the
Mandate itself '. Respondent will next consider what value thev have
as sul~porting inatcnil for the Court's conclusion that an agrzzmént \rus
conclutlcd irii\l>ril 1346 \rlicrr.by rigtits of St;itcs wtiicli were .\leinben
of the Lca~ue wcre maintaincd alter dissolution of tlie Leacuc.
- "
116. The "essentiality"of "judicial supervision" as wiii be recaüed,
is said to arise from the consideration that in the last resort the Council
of the League was powerless to impose its will on the Mandatory in
view of the unanimity mle. and the fact that the Council was not em-
powered to institute contentious proceedings.
The merits of this armment have been considered above. where it
was subiiiitted that iti;unsound 2. llcre ais0 Responderit '\r.ishc,$to
considcr thc implic:itioii of essentiality in thiz,senje on the assumption.
for DurnosCsof arcunieiit. ttiiititdid in fact exist durinil tlic.lifetime of
this considerationeslikely to have had in the minds of the Members ofwas
the League at its dissolution? The circumstances during April 1946
were as foilows:

(a) The League of Nations was being dissolved and the Council could
of course not survive the League itself. Since the Council would
no longer exist, there was no point in providing for the continuation
of a provision the raisond'ttreof which was enhyfiothesito provide
for the enforcement of the Council's wiil.
(b) The United Nations Charter had come into force on 24 Octo-
ber 1945. The Members of the League were weli aware of the pro-
visions of the Charter. In particular, they were weil aware that the
Mandatory as a Member of the United Nations did nnt have the
power to block resolutions of the General Assembly, or of any other
organ of the United Nations, inasmuch as the unanimity rule does
not operate in that organization. If it was envisaged that super-
"essentiality" of the compromissory clause in the framework of the
League of Nations could not have been a consideration for reten-
tioii of the provisions of the clause in the framework of the United
Nations, in which organization it could not have served the pur-
pose of enabling the will of the supervisory authority to be imposed
on the Mandatory. The logic of the proposition just stated is ac-
cepted by the Court in another context. When dealing with the
fact that some Tmsteeship agreements do not contain compro-
missory clauses. it States:

"To deny the existence of the agreement it has been said that
Article 7was not an essential provision of the Mandate instmment
for the protection of the sacred tmst of civilisation. If therefore
claim of jurisdiction would fali to the ground. In support of this
argument attention has been called to the 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 res-

' Videpara.s.13-15.8.
Vide para. 107. supla. 242 SOUTH WEST AFRICA

pective Trusteeship Agreements any comparable clause and that
these three were the Trusteeship Agreements for the temtories
previously held under hlandate by Japan, Australia and New
Zealand. The point is drawn that what was essential the moment
before was no longer essential the moment after, and yet the
principlesunder the Mandatessystem corresponded to those under
the Trusteeship system. This argumentapparently overlooksone
im@ortantdiferencein thestructure andworkingof thetwosystems
and losesits wholepoint whenit is notedthat under Article 18 of
theCharterof the UnitedNations, 'Deczsionsof theGeneral Assem-
bly on important questionsshall be made by atwo-thirdsntajority
of the memberspresent and voting', whereasthe unanimity rule
prevailedin theCouncil andtheAssemblyof the Leagueof Nations
undertheCovenant.Thus legaiiy valid decisions can be taken by
the General Assembly of the United Nations and the Trusteeship
Council under Chapter XII1 of the Charter without the concur- .
rence of the trustee State, and thenecessityfor invokingthePer-
manent Courl for judicial protection which preuailed under the
Mandates system is dispensed with under the Charter '." (Italics
added.)
It fouows, therefore, that the "essentiality" relied upon by the Cowt
could have been of importance only in the context of the League of
Nations. Once it was decided to dissolve the League, any reason for
keeping the compromiçsory clause alive on the ground of such "essen-
tiality" fell away.
117. The "reliability" of "judicial supervision"has been dealt with
above relative to a possible implication of a term in the Mandate itself2.
There it was pointed out that it is not clear what was meant by relia-
bility in this context. Respondent will assume however that the Court
intended ta convey that "judicial supervision" was regarded as more
reliable than "administrative supervision" since the latter was more
liable ta cease functioning than the former.
Respondent has already pointed out that there is nothing to support
such a findine. In anv event. however. the factor of reliabilitv in this
particular sense could hardli have beénrelevant at all at thé time of
dissolution of the Leame. when the administrative supervision of the
mandate system in fact came to an end without provision for any
substitute. There could then no longer be a question of weighing up the
relative reliability of administrative and judicial supervision: the only
question could be whether the latter-if thought of at all at that stage-
was worth the trouble of special measures to keep it alive. This is dealt
with below, relative to the agreement found by the Court to have been
concluded in this regard.
1x8. It is submitted, therefore, that neither the "essentiality" nor the
"reliability" of the "judicial supervision" could have played any role
in the minds of the Members of the League resulting in inducement to
enter into an agreement in April 1946, as found by the Court.
119. With regard to the alleged Agreementof April 1946, it isneces-

' Vide para.108.supra.reliminary Objections,Judgmcnt,Reports1961.p. 342. COUNTER-MEMORIAL OF SOUTH AERlCA 243

.jary to examine the actual facts from which the Court seeks to deduce
it. This topic is 6rst raised in the Judgment as follows:
"The third reason for concluding that Article 7 with particular
reference to the term 'another Memher of the League of Nations'
continues to be applicable is that obviously an agreement was
reached among al1 the Members of the League at the Assembly
session in April1946 to continue the different Mandates as far as it
was practically feasible or operable with reference to theobligations
of the Alandatory i'o%i,ersand therefore to mriintain the rights
of the Memhers of the League, notwithstanding the dissolution of
the League itself. This agreement is evidenced not only by the
contentsofthedissolution resolution of 18April 1946, but also by the
discussions relatingto theqzrestionof Mandatesin the First Commit-
tee of the Assembly and the wholeset of surroundingcircumstances
which preceded, and prevailed at, the session '." (Italics added.)

The agreement is accordingly, in the Court's view, evidenced hy:
(a) the contents of the League resolution of 18 April 1946;
(b) the discussions relating to the question of Mandates in the First
Committee of the Assembly; and
(c) the whole set of surrounding circumstances which preceded. and
prevailed at, the Session.
These varions features are discussed hy the Court at pages 338 ff.
Judge Jessup, in his separate opinion, relies on a statement made by
the representative of Respondent in the Meeting of the League Assem-
bly on g April 1946 as one of the bases for his finding that the com-
promissory clause survived the dissolution of the Leaguez. Since
this basis of his finding overlaps with that employed hy the Court,
Respondent will deal with them simnltaneously.
120. Inasmuch as the compromissory clause imposed an obligation
on Respondent to submit to jurisdiction at the instance of "another
Memher of the League of Nations", this obligation could only by the
consentof the Kespolrdentbe altered or extended in favour of indivi-
dual States not possessing the qualification of League membership.
What has to be established therefore, is an act of consent hy Respondent
to jurisdiction in favour of specified States. which act was accepted by
or on behalf of the States concemed 3.

121. The question therefore is whether South Africa undertook in
at that stage Members of the League. It ise clear that there was no express
suhmission. However, as the Permanent Court said in the Minwity
Schoolscase:

". ..there seems to be no doubt that the consent of a State tothe
submission of a dispute to the Court may not only result from an
express declaration, but may also be inferred from acts conclusively
establishingit '".(Italics added.)

2 Ibid.. pp. 4xA.cn, Pveliminary 0bjeclions.Judgmcnt. I.C.J. R196a.p. 338.
Ibid.. p. 526 (Judges Spender and Fitzmaurice).
' Rightr of Minorilies in UpperSil6sio (Minorify Schoolr),Judgniant 1928.a.
P.C.I.J.. Scrics A, No. 15,24.244 SOUTH WEST AFRICA

Later the Court repeated:
"... there is no de laying down that consent must take the form
of an express declaration rather than that of acts conclusivelvestab-
iishing ii"'. (Italics added.)
122. The relevant facts must therefore be considered with a view to
detennining whetlier they conclusively establish consent to jurisdiction
on Kespondent's part. As regards the events leading up to and at the
last Session of the League Assembly, the foilowing are of importance:
(a) At the San Francisco Conference dunng the discussions concem-
ing the provisions of the Charter relative to a proposed trusteeship
system (in Committee III4 on II hlay 1945) t.e South African
representative made a long and expiicit statement, the full text of
wliich is set out in Chapter II, paragraph 31. supra.
At this stage Respondeiit wishes to emphasize only the conclud-
ing portion, which reads as foilows:
"The Uelegation of the Union of South Africa therefore
claims tliat the Mandate should be terminated and that the
territory should be incorporated as part of the Union of South
Africa.
As territorial questions are however reserved for liandling
at the later Peace Conference where the Union of South Africa
intends to raise this matter, it is here only mentioned for the
information of the Conference in connection with the Man-
dates question. -
As stated in the hlemorandum, this is not a matter that can
be decided here. but 1 am,directed to mention it for the infor-
mation of the Conference so that South Africa may not after-
wards be held to have acquiesced in the continuance of the
Mandate or the inclusion of the territory in any fonn of tms-
teeship under the new International Organisation."
(b) The histov of the resolutions whereby the United Nations made
provision for "assumption" of certain League functions and powers
was dealt with in Chapter II, paragraphs 33-35,supra.Aspointed out
there, a specificproposal envisaging investigation and recommenda-
tion concerning possible "transfer" of "functions ... under the
mandate svstem" was reiected and nothine substituted for it. Al-
tlioiigti th6 proposal related prim;irily IO<"adniiiiiitr.itive jiil)i:r-
visiuii" it \vould ;ils0have rcsulted in at lcnst a corisid~.ratioiiof any
"judicial .iuper\,ijioii" iiliicli may have e~isted as a part of the
ninii<latesystem. Tlie irilercricrsçemsinescapablc that theomissions
were Ocliberate. particularly since Rr.spuntlent niiil ccrtaiii othcr
3land;itories had in:irlcit clear thtnistce.îliioaereeniciitwoul<lnot
be concluded as a matter of course. The sou;h xfrican reservations
were particularly explicit =.
(c) When the Memberç of the Leagie of Nations met in Apnl 1946
the position, which must have been knoyn to the hfembers, was as
foilows:

' Rights oIlli>~orilierin U9pcrSile(hlinarily Schoois), Judgmenl 1s.1928.
P.C.I.J..SeriesA, No. 15.p. 25. Vide also SouthlVesAfrica, Preiirninary Objcc-
liotiJudgmenl. I.C.J. Repwls 1962.pp. 419-.+2(Judge Jessup).
Vide Chap. II. para3j. ruprn. COUNTER-MEMORIAL01: SOUTH AFRICA 245.

(i) The Charter of the United Nations made provision for $e
voluntary placing of mandated territories under trusteeship.
(ii) Some States had made it quite clear that they would not, or
might not, conclude trusteeship agreements. South Africa, in

particular, was clearly on record as contemplating the incor- . .
~orati~-~~f~-ou~ ~West Africa.
(iii) 'Therehad been a deliberate omission to provide fqr the contin-
uation or ada~tation of the Maridates bv the United Nations '.
123. It is in these circumstances that Kespondeiit's representative

made the statemeiit.to which Judge Jessup attributes such decisive im-
portance. It wiii be recalled that the statement made on behalf of South
Africa was one .of a series made on behalf of the various Mandatory
Powers (excluding Japan) pursuant to informal discussions between
them 2. . .
For convenience, the Soutli African statement is here repeaied in fuli.
It read :

"'Since the 1st League meeting, new circumstances have arisen
oblieine the mandatorv Powers to take into review the existina
arrGg&ents for the administration of their mandates. As was full:
explaiiied at the recent United Nations General Assemblv in London,
the Union Government have deemed it incumbent uDonthem to con-
sult the peoples of South West Africa, European and non-European

alike, regardiug the form which their own future Govemment should
take. On the basis of these consultations, and having regard to the
unique circumstances which so signally differeutiate South-Wesf
Africa-a territory contiguous with the Union-from al1other man-
dates. it is the intention of the Union Government. at the forth-
suiiiing sessionoi the Unitecl'i:irioiiiGcn~r~rl:\ss,:mbly in Se\v York.
to formiil;ite its case for according Soutli-\I'cst Afric:ia st;itui under

\i.liiclit \voiil<lIJLi.iit~rnntionilllv r~coçriis<~= dan intcg5l part ofthe
üniori. :\s th,: r\sscriibl!. \\.il1kno\r it is nlre:id!, adiiiinisterc.d iinder
tlic tt,rnis i~fthr rnand;ttc iu an inlecrnl ixirt of the Cnion. In the
niéaniinir thc (Jnioii \vil1continiic to i;liiiii;istcr ilic rzrritor). .s<riipii-
loiidy iii ;i;çord;ince \vitti III<-ob1i~;itionsof the mindate. for tlie
;id\~aiiceriiciitniid i,roiiiotion of the intccieits of thc inliabitants, as
she has done d~riG the past six years when meetings of the hlan-

dates Commissioncould not be helcl.
The disappearance of those orgnns of the League concerned with
the su~ervisio~ ~ ~ ~-d~ ~ ~~~r~~a~i~v~t,eL~ ~ ~ ~es Commission
and t6e League Council, will necessa;ily preclude complete com-
pliance with the letter ofthe mandate. The Union Government will
;i~\.crttii.I.:~iregard tlii: clii;i,lutioii of thc Lengiic :tj iii iio SV:,!.
diniiiiiîliiiig its ol>li~;itioiuiid~.rtlie iii;intl;~t~:\.i.liicliit \riIlcontin\ie
ro dijcti:~r#ewirh thc fiill:inclpropcr :il,lireciatioii of its rcs11onsibil-

ities until-such time as otherAa&ang&ents are agreed upon con-
cerning the future status of the territory '."
It will be noted that this statement. in common with al! the otho
statements by Mandatories, did not refer in terms to "judrc!al supeyi-
sion" of any kind or to any continuation of the compulsory ]urisdiction

' Vide Cbap. IV, para. 29. supra.
Vide Cliap. II. para. qr, supva.
' L. o/N., O.].. Spcc. Sup.No. rgq,pp. 39-33; Chap. II, para. 41 (b) (ii ).pra.246 SOUTH WEST AFRICA

of the Court. The expressed intention of the South African Government
was "to adminisler ihe temtory scrupulously in accordance with the
obligations of the Mandate, for the advancement and promotion of the
iuterests of the inhabitants. as shehas done dur in^t-. kt sixvears ...
Clearly tlii~lidiiot cornpreliciid anv intciition io submit to su~ervision,
"judicisl" or othenvise. Subnii;sioii to jiirisrliction c;<ii1i;~rlx i:uJ ro
be a part of administration of a territory.
But the statement went further to point out that "complete compli-
ance with the letter of the Mandate' would no longer be possible by
reason of the "disappearance of those organs of the League concerned
with the supervision of Mandates, primarily the Mandates Commission
and the League Council". Thereafter foilowed the sentence upon which
Judge Jessup apparently places main reliance:
"The Union Government will nevertheless regard the dissolution
of the League as in no way diminishing its obligations under the
mandate, which it willcontinue 10 dischargewith the full and proper
appreciation of its responsibilities ..." (Italics added.)
It must be noted that the word "discharge" (iike the word "adminis-
ter" used previously) connotes the active performance of an act, and
not the mere passive acquiescence in or submission to an act performed
or a nght exercised by another, such as would be involved in submitting
to jurisdiction.
Reading the statement as a whole, it is quite clear that the South
African representative had in mind the two basic types of obligations
in tenns of the Mandate. Firstly. there were the obligations to adminis-
ter the territory for the well-being of the inhabitants. These obligations
were to be continued. And secondly there were the obligationsregarding
supervision. These could not be complied with any more and accordingly
fell away. It seems clear, in Respondent's submission, that no attention
was specificallv directed towards the com~romissorv clause bv anv
persoi at any stage of the discussions, most'likely because it was coi-
sidered of no importance.

portance for present purposes, are:ement which are of particular im-

(a) It was clearly an expressionofintention only, and cannot be regarded
as a promise or undertaking intended to create rights or obligations
vis-à-vis other States '.It was much too imprecise for that purpose.
and there was no indication of the States in whose favour anv
prorniic. ifsuch was intended, !vouldoperate.
(b) The esl~ressionof intention \va confincd to the olligalio~rs refurding
ud~ni~iislr~rlioontlie territory for theti.iiitiof the inhahitants.
Judge Jessup does not suggest that the South African statement alone
contained a consent to jurisdiction-in fact he referstothesouth African
statement and those made during the same Session on behalf of other
Mandatories as "this and similar declarations" 2.An examination of the
other statements shows that one or other or both of the aspects em-

' Vide in this regard hIcXair, A. D., Law ofTrentias(1961).pp. 14-15 quoted
(Judge Jessup).frica, Prcliminnry Objections. Judgmewt, I.C.J. Repovtr 196405.
South West Africa, Preliminory Objections,JudgwntI.C.J. Report1962.p.418. COUNTER-MEMORIALOF SOUTH AFRICA *47

]+siied in subparagraphs (a) and (b) above, were also present in each
ofthem. Thus, the British statement contained the following:

". ..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". (Italics
added.)
'TheFrench statement:
"The French Government intends to pursue the executionof t@
mission entmsted toit bythe League of Nations. It considersthat it
is in accordance with the spirit of theCharter. ..2" (Italicsadded.)
'TheNew Zealand statement:
"New Zealand does not consider that the dissolution of the League
of Nations . ..wiUhave the effect of diminishing her obligations to
the inhabitants of Western Samoa, or of increasing her rights in the
tnritory. Until the conclusion of our Trusteeship Agreement for
Western Samoa, therefore, the temtory will continue to be adminzs-
teredby New Zealand, in accordancewith the terms of the Mandate.
for thepromotionof thewell-beingand advancementoftheinhabitants3."
(Italicsadded.)

The Belgian statement :
"Belgium wiilremain fully aliueto al1the obligations devolvhg on
members of the United Nations under Article 80 of the Charter '."
(Italics added.)
The Australin statement :
"After the dissolution of the League of Nations . . . it will be
impossible to continue the mandates system in its entirety.
h'otwithstanding this, the Government of Australia does not
regard the dissolution of thc League as lessening the obligations
imposed upon it forthe protection and advancementofthe inhabstants
of the mandated territories, which itregards as having still full force
and effect ... Australia will continue to administer the present
mandated territories, in accordance with the provision of the Man-
dates, for the protectionand advancementof theinhabitants. In making
plans for the dissolution of the League, the Assembly willvery prpp-
erly wish to be assaredas to the future of the mandated territories,
for the welfare of the peoples of which this League has been respon-
sible =." (Italics added.)
Apparently, in Judge Jessup's view, al1 these Mandatories must be
taken conclusively to have submitted themselves to the jurisdiction of
the new Court by making the statements from which the above passages
have been extracted.
The Court was, however, not mentioned-not in any of the statements.
nor in any O/ the discussions. On the contrary, the language ofal1the state-
ments was entirely inconsistentwith an intention taassume alegalobligation
torenm ajurisdiction whichin termswasaborrttolapse.And the statements

L. otAr.,O.J.,S~EL.Sup. NO. 194. p. ZR; Chap. II, para. 4r (b) (i). supra
Ibid.p..34; Chap. II. para. 41 (b) (iii), supra.
' Ibid.. p43; Chap. II, para.qi (6) (iv).rupra.
Ibid. p. 43;Chap. II. para.41 (b] (vJ.supra.
' Ibid.. p. 47; Chap. II. parqr (b) (viisupra.248 SOUTH \VEST AFRICA

did not even touch uDonthe most vital as~ect of anv iurisdiction clause.
viz., theidentity of t6e parties who would Qeentitled'tAinvoke it.
If dl the Mandatories did not intend to bind themselves in this way,
one would have the strange position of South Africa, who was openiy
and avowedly pressing for incorporation of South West Africa, going
out of its way to consent to jwisdiction, while other Mandatories were
nut prepared to do so. It is hardly imaginable that any of the persons
present could have denved such an impression from the South Afriwn
statement.

125. Reference has been made above to the Chinese draft resolution
which sought to provide expressly for transfer of the League's snper-
visory functions in respect of Mandates to the United Nations, but
which resolution was not proceeded with '.
This draft resolution was raised aftn the declarations made on behalf
of the United Kingdom and Respondent, but beforethe declarations on
behalf of other States 2.
It is highly signifiantthat Dr. Lone Liang who raised the proposed
resolution, dealt only with so-called administrative supervision. He, in
common with everybody else at the final session of the League, seems
to have been entirely unaware of, or indifferent to,any so-called "judicial
su ervision".
bhen the final League resolution of 18 April 1946 was moved by
Dr. Liang, it oncemore appeared clearly:
(a) that the Assembly-was not concerned witli any problem arising

from the imminent lapse of "iudicial supervision" but. on the
contrary,
(b) that the Assembly was only considering the future administration
of the mandated territories, particularly with reference to the
disappearance of the supervisori organs of the League, and
(c) that the statements by the Mandatories comprised only expres-
sions of intention, and not undertakings or promises intended to
create rights and obligations vis-à-vis other States. Thus Dr. Liang
said, inter alin, as follows:
"lt was gratifying to the Chinese delegation, as representing a
country \hich had always stood for the principle of tnisteeshiq, that
aUthe Mandatory Powers Iud annou~lcedtheirintention to admtnzster
theterritoriesunder their control in accordance with their obligations
under the mandates system until other arrangements were agreed
upoi~ 3." (Italics added.)

Aiid the same aspects appear also in the supporting addresses of the
French and Australian dele~ates *.
126. It is against this background that the League resolution of 18
April1946 must be read. For convenience, it is hereset out iniull:
"The Assembly :

Recalling that Article 22 of the Covenant applies to certaln terri-
tories placed under mandate the principle that the well-bel% and
' Vide Chap. Il,para. 41 (c) and (d), supro.
Ibid.para. 41 (c).
'L. Of N.,O.J.S ,pec. Sup.So. 194,p. 79: Chap. II, para.41 (d), supra.
' Referred to in Çouth lVestAtrica. Prclirninnry ObjectiottrJttdg~~ientI.C.J.
Reports1962, pp. 340.341, und quoted in Chap. II. para. 41(d), supra. COUNTER-h1EMORIAL OF SOUTH AFRICA 249

dc\,elopment of peoplcs not yct ablc to stand alone in the strenuous
conditions of tlic modem world iorin a sacred trust of ci\~ilkatioii:
I. Expresses its satisfaction with the manner in which the organs
of the Leamue have ~erformed the function~ ~ ~rusted to them with
respect to the nisiidatcj iysterii and in particuluppays tribute to the
work accomi>lisliedhy th: !dandates iommisjion;
2. Recalli the rolehf the Leae-e in ass~~tine Iraa .o D.-eressfrom
its st~tuj under aii'.A'in.,iidate to3.condition of complctc indepeiid-
cncc. \r.elcoincitlic tl-riiiiiiation of thc nilindat~d status of Ssria, the
Lebanon and Transiordan. wluch have. sinc~,-he ~ast session of the
Assembly. becomeindePeident members of the world community;
3. Recornises that, on the termination of the Leawe's existence,
its-functioris \rith resDect to the mandated territorieSwiU cometo an
end, but notes that ~ha~ters XI, XII and XIII ofthe Charter ofthe
United Xations einbody principles corresponding to thosedecl'ared in
Article 22 of the Covenant of the League;
4. Takes note of the expressed intentions of the members of the
League now administering territories under mandate to coiitinue to
administer them for the weU-beine~.d deveio~ment of the ~eo~le. .
coricerricdin sssordance \vit11tlie ohligntioiij ço;it:iined in the reqwc-
tive in;iii<latcsuntil otlitr ;irr:ing~iii,iits h:we been ab~cedbetween
tlic United Sntioiis and tlicrcïpt.t:ti\.~.m:iii(latory powc'."
It will hc observ~.dtl~at altliough thc rcsoliitiori makes specihc refcr-
ence to functions under the Xlaiidate.;, none of these could reriiotely
relate to judicial supervision.
Paragraph I expresses satisfaction with the manner in which orgaus
of the League performed their functions with respect to the mandate
system. This cannot refer to the Permanent Court which was not an
organ of the League, but, and this is of even greater importance, at no
time during the subsistence of the League in fact performed any func-
tion pertaining to "judicial supervision".
Paragraph 2 makes no express or implied reference to any function
of the Court.
Paragraph 3 refers only to the functions of the League (not of the
Permanent Court) and only to such functions as are meutioned in Article
22 ofthe Coveiiant of the League and Chapters XI, XI1 and XIII of the
Charter ofthe United Nations. "Judicial supervision" is not expressly or
by implication mentioned in Article 22 of the Covenant, or in Chapters
XI, XII and XII1 of the Charter.
Paragraph 4 "takesizote"of the "expressedintentions"of Mandatories
to continue to "administerthem for the well-beiiigand deuelopmeiztof the
peoples conceriied".(Italics added.) Paragraph 4 thus clearly does ?ot
refer to judicial supervision either. It relates only to the admiltistrntzon
of Msndated territoriesforthe well-beingof the inhabitants. Furthermore,
its wording clearly bears out what has been said about the declarations
made by the Mandatories, Le., that they merely consisted of expressions
of intention. Clearly they were understood by the League in that sense.
Finally. paragraph 4 obviously does not purport to embody any agee-
ment between the States present at that meeting. The expression "takes
note of the espressed intentions" can never amount to "records the
binding undertakings" or words of similar import.

1.. oN.. O.J. ,pec.Sup, No. 194, pp. 278.279C;hap. 11,para. 41 It)supra. 250 SOUTH WEST AFRICA

127. Turning now again to the Judgment of the Court and the
separate opinion of Judge Jessup, the latter wili for convenience be
dealt with first.

128. JudgeJessup States that:
"... one of the 'oblirrations'under the Mandate which the Union of
South Africa tlius :lc., by its srarcment of 9 April 1946; newly
agrced to respect after the dissolution of the 1.e.lgue!vasthe obliga-
iioriurider rlrticl7to suhniit to the iurisdictioii ofthe Cour.. ."'
His reasoning is to the effect that the statement of gApril 1946 pointed
out that the disappearance of "certainorgansofIheLeague"would prevent
full cornpliance with the letter of the Mandate, but did not "indicate
that with regard to the obligation under Article 7 it [Respondent]
intended to rely on the fact that in some ten days [Le.,after the dissolu-
tion of.the League] there would be no State which could cd itself a
'Member of the League of Nations' " since "it could hardly be claimed
that 'Members'of the League were 'organs' ofthe League, which disap-
peared". This reasoning leads the leamed Judge to the conclusion that
the obliaation to submit to the iurisdiction of the Courtwas not excluded
from ~&~>orident's"pledge in ;\r.ceping trrinj, 'to rcgarcl tlic dissolution
A,,n8e''2eape as iiino ivay diriiinishiiiji its oblig:~tioiijunder tlie Man-
..-bu .
sion, in the assumption that the obligations under the compromissorybmis-
clause were included in Respondent's "undertaking" because they were
not excluded. In truth, as demonstrated above, the wording of the
operative part of the statement read against the background of the sur-
roundina circumstances. includine statements on behalf of other Man-
datoriec renders it clear that n; consent to jurisdiction was contem-
plated at all. and thns that the com~romissory clause was in no way
included iu the statement.

129. The Court, as pointed out in paragraph 114 above, relies on an
agreement concluded amongst Members of the League of Xations in
April 1946. Respondent has set out above why it contends that no
tories were merely giving utterance to expressions of their intention re-
lating to mandated territories without any intention of creating legal
rights thereby. This aspect need not be repeated at this stage.
Regarding the content of the alleged agreement, however, the Court
repeatedly stresses that it was in effect "to continue the different Mau-
dates as far us it was practically feasible or operable . .."3. (Italics
added.)
One must therefore ascertain in what manner the Court reaches its
finding that the compromissory clause was "practically feasible or
operable" after the dissolution of the League of Nations.
130. The Court in this regard refers to the coming into force of the
United Nations Charter. and in particular the provisions relating to
Tmteeship, as well as to the fact that the United Nations had begun to
operate in January 1946 .t then wntinues:

' South West Alrico, Preliminary Objeclionr, Judgmenl, I.C.J.1962.p.s418
Ibid.. pqrg.
Ibid., p. 338. COUNTER-MEMORIAL OF SOUTH AFRICA ZjI

"When the Assembly of the League actuaiiy met subsequently in
April of the same year, it had full knowledge of these events. There-
fore before it finaiiy passed the dissolution resolution, it took special
steps to provide for the continuation of the Mandates and the Man-
date System 'until other arrangements have been agreed between the
United Nations and the respective mandatory Powers'. It was fuily
realised by ali the representatives attending the Assembly session
that the operation of the Mandates during the transitional period
was bound to be handicapped by legai teduiicùities and formalities.
Accordingly theytook special steps to meet them '." (Itaiics added.)
The Judgment proceeds:

"To provide for the situation certain to arise from theact of dis-
solution, and to continue the Mandates on the basis of a sacred trust,
prolongeddiscussionswere held both in the Assembly and in its First
Committee to find ways and means of meeting the difficulties and
makin up for the imperfections as far as was practicable 2."(Itaiics
added3
Nevertheless.as has beenmentionedabove,despitethese"prolongeddiscus-
sions", nobodynt any stageutteredonesinglemordrelatingto tlzefutare of
the alleged"judicial supervision". In the circumstances. the only con-
clusion can be that nobod considered that there was any "judicial
supervision" at au, or, if dere was any, that it was worth retaining.
This reticence about "judicial supervision", is in marked contrast to the
attitude of Members of the League in relation to "administrative snper-
vision", which was repeatedly'mentioned and discussed.
131. Later. the Court expresses its conclusion as foiiows:

"It is clear from the foregoing account that there was a unanimous
agreement among ail the Member States present at the Assembly
meeting that the Mandates should be continued to be exercised in
accordance with the obligations tberein dehed although the dissolu-
tion of the League, in the words of the representative of South Africa
at the meeting, 'willnecessarily preclude complete compiiance with
the letter of the Mandate', i.e.. notwithstanding the fact that some
oreans of the Leamie iike the Cou~c~l and the Permanent Mandates
Cokmission \voulz he miising. In otlier words the coiiimon uiidcr-
st:iiidirig of the .\lemt>tirStates in the rlss<;nihl\.-inzluding ttie 3Iari-
datory Powers-in passing the said resolutioi, was to continue the
Mandates, howeuerim$erfect the wholesystem uould be after the
Leagzu'sdissoli~fiona ,nd as muchas it wouldbeofierable,until other
arrangements were agreed upon by the Mandatory Powers with the
United Nations concerning their respective Mandates '." (Italics
added.)
Quite aiart from the fact that, in Respondent's submission, there is
no warrant for findine that anv ameement was conclu-e- at all. it
seems abundantly cle& that nobody could have understood the Man-
datons' attitiide to be of a content higher than as set out in this pas-
sage; and thus, if there had been any agreement, its content could not
have been any higher. None of the Mandatories' statements indicated any

' South WcsfAfricn.Preliminaty 0bjcctionr.Judgment. I.C.J. Reporfs 196p.338.
Ibid.. p339.
' Ibid.. p341,252 SOUTH WEST AFRICA

sions of the Mandate to the new situation supervening after the disso-.
lution of the League. OII the contrary, these statements as weUas the
resolution of the League, indicated acceptance as unavoidable that some
aspects of the Mandate would become inoperable, and contained no.
suggestion of any attempt to adapt them or.to provide substitutes for
them. Thus the declarations lof which the resolution took note) related
only to the continuation of suih ajpectsof the Jlaiidate ;iswerc i~hherently
capablc ut continued opration iiiaccordance \\.itli tliçir tcniis despite
the ilissolution oftlicI~s~wc:and ths i;,iiitli?above DL?S~PC. iniliated
aç the conterit of the "a@ementH found by the court.- ".
132. Notwithstanding this absence of design to adapt the hlandate
in any way, the Court nevertheless held that the agreement found by
it didprovide for adaptation. Thus it says:
"hlanifestiy, this continuance of obligations under the hlandate
could not beein to ouerate until the dav after the dissolution of the
I.eague ul Satioiis and Iiencc the litvrai otilcctions dcri\.cd froni,the
\ror<ls'anothcr Membcr of tlie Leapc of Satioiis' ;ire iiot mcaning-
ful. since tlie resoltitiun of 18April 1346\$,asadopted preciicl!. ivith
a vxeii to a\.erting ilteni ;ind coiitiiiuiiig the JI:in~J::Itredt)' be-
t\vct-rithc \l;iiidator\. ;rnd t1.chlcml>criof tlic I.c.îgiicof Satio'."
(Italics added.)
The Court does not, however, indicate on what basis it fmds that
there was such an intent ("view") to avert the "literal objections".
hlanifestly it cannot be derived from the content of the "agreement"
as found, since, as pointed out above, the avowed content of theWagree-
ment" directly contradicts this view. It does not derive from the pre-
paratory discussions, because there \vas never any discussion of the
compromissory clause or of the effect which the imminent dissolution
of the League would have on the expression "another Member of the
League of Nations" as it occurred iii that clause or in any of the other
clauses of the various mandate instmments. And the wording of the
resolution itself indicates no such intent, being on the contrary. in
its pertinent paragraph 4, limited to taking note of expressed intentions
regarding adntinistration of the mandated territories for the well-heing
and development of the peoples concerned. One can only. with respect.
conclude with Judge van Wyk that this finding of the Court "has no
factual basis" Z. The Judgment reveals none-and Respondent is not
aware of any.
133. Finally, the Court States in support of its finding of an agreement
as under discussion (to maintain the slatus qzroas far as ossible) that
the interval betu-een the dissolution of the League ancrthe coming
into force of other arrangements was expected ta be of short duration :.
Kespondent, \rith respect, does not appreciate the cogency of this
consideration. Had the parties considered that it was necessary to make
provision for a short while only. they would hardly have gone to the
trouble of entering into a special agreement regarding "judicial suyer-
vision" which had never been invoked during the 25years of the League's
existence.
'South Wesl Alrica,Preliminary Objeclions, Judgmerzl, IReportsrg62. p.341.
Ibid.. 633.
' Ibid.. p. 342. COUNTER-MEMORIAL OF SOUTH AFRICA 253

134. As a last consideration regarding the alleged agreement in 1946.
Respondent wishes to refer to Article 102 of the Charter of the United
Nations. which nrovides as foUows:
"1. Evcry trcaty and every iiitcrn:itioiial abq~crnçiirt:iitcrcd irito by
any .\Icmberof tlic Ciiitcd Satioiis .zft~.rthc prrlitCli;irter conics
into forceshall sîsoon as wisiblc be reaistered with the Secretariat
and published by it.
z. No party to any such treaty or international agreement which has
not been registered in accordance with the provisions of paragraph
I of this Article may invoke that treaty or agreement before any
organ of the United Nations."
In the present case, the "agreement" was ailegedly entered into after
the Charter came into force, but no such agreement has been registered.
Consequently, if such agreement existed, the result might well be that
it could not be invoked before this Court, which is an organ of the
United Nations.
What is more important, however, is that the non-registration indi-
.cates forcihly that the participants in the resolution of 18 April 1946
did not consider that any treaty or international agreement had been
.created thereby or in regard thereto '.

135. For the reasons aforestated, Respondent submits that no agree-
ment express or implied was entered into in April 1946 involving con-
-sent on the illandatorv's art to he bound to submit to the iurisdiction
,of the International Coukt of Justice at the instance of scates which
-wereMemhers of the League of Nations at its dissolution.

V. The Applicalion ofSome Principle of International Law, not
Arising /rom Agreement,Express or Implied

136. Respondent has dealt with the interpretation of the mandate
instrument, aiid with the questions whether the survival and adaptation
.of the com~romissorv claise mieht have been effected bv amiement.
cspress or kiplicd, entered into Zther at the tirne of the cicaiibn of the
.\landatc. or during the ye:irs 1945-1946.The onl!. rïiiiaining questioiii
wlictlicr sucli survi\..il aiid ad:intatioii micht have arisen from rlizuner-
.ation of some objective principle of international law.
The concept of a compomissory clause being amended without the
consent of the party bound thereunder by the substitution of different
parties for the ones who were entitled ta invoke it according ta its terms,
is necessarily contrary to the basic principles of international law. Xo
.authority need be quoted forthe proposition that jurisdiction in inter-
national law can rest only on the consent of the party impleaded.
It would be completely contrary to this principle to find that a com-
promissory clause could be amended in the manner set out above,
without the consent of the State bound therehy. Nevertheless various
.arguments suggesting such amendment have been propounded. Respond-
ent wiU deal with each of them separately, but in every case it must
he kept in mind that the whole concept of jurisdiction heing conferred
by an objective rule of law is hostile to the basic principles of interna-

South Werf Africa, Preliminary Objedionr, Judgmcnt, I.C.J. R1962.p.635
,(Judge van Wyk). 254 SOUTH WEST AFRICA

tional law. This is a fundamental objection common to all of them.
and Respondent does not propose repeating it every time.
. .
137. In so far as Applicants have relied on a principle of "succes-
sion" in accordance with which the riahts of the Leame and its Mem-
bers would automatically devolve upon the ~nited-~ations and its
Members, Respondeut has already dealt with this issue 1. It is conse-
quently not nëcessary ta conside; it agaiii.
138 Applicants also advanced a principle of "carry-over", by which
Members of the League at the date of its dissolution were said to have
retained the rights which they had previously possessed in their capacity
as Members.
In their Observations they stated that there was at least a de facto
carry-over of the League's respnsibilities to the extent that an im-
portant function of the League continued beyond the League's formal
existencez. They sought to justify this suggestion as foiiows:
"The concept of the limited de facto survival of an entity which
has been formally dissolved is a concept familiar ta civilised legal
svstems. Shus. in manv States ofthe United-~~at~s ofAmerica. a dis-
Glved corporation r&ains delacta in existence until it windsup its
corwrate affairs. Other States of the United States enable persous

whÔwere corprate directors at the time of a corparate disiolution
to sue as trustees on any claim of the corporation. This is but another
way of recognising the continuing vitality of the rights and obliga-
tions created by the corporation pnor to its dissolution. The 'carry-
over' principle of dissolved corporations is implicit in the nile that
suit may be brought on behalf of the defunct corporation only by
former directors. Civil law countries have similar legislation, which
keep alive and carry-over the legal existence of rights and duties of
dissolved entities 3."
This contention waç dealt with by Respondent in its argument in
chief in the Oral Proceedings on the Preliminary Objections' and was
not thereafter raised by Applicants again. Respondent does not propose
dealing with it again .except to submit that it is without substance.
None of the Judges relied on it, and it was dealt with only by Judge
van Wyk, who rejected it
139..Some of the members of the Court also employed arguments
involving principles which do not appear to anse £rom agreement, ex-
press or implied. They are dealt with inthe next succeeding paragraphs;

140. In its Judgment, the Court States:
"Those States who were Members of the League at the timeof /ts
dissolution continue to have the right to invoke the compulsory juns-
diction of the Court, as they had the right to do before the dis-
solution of the League. Thutright continuesto exist for as long as th
Respondent holds on to the right to adlninistn the territory under the
Mandate %" (Italics added.)

' Vide Chap. IV. paras. 14-17 and7'-73SU~VS.
1,PP.446-448.
'1. P.447.
'Oral Proceeding gs, ct. 1962afternoon.
'South Wast Alrica. Prcliminnry Obj~dias, Judgmcnt. Z.C.J. Rep1962, p.605.
16id.p.. 338. COUNTER-MEMORIAL OFSOUTH AFRICA 255

It is, with respect, not appreciated how the tact that Respondent
"holds on to the right ta administer the Territory" can by itself serve
to keep ative the compromissory clause in Article 7 in an amended
form. If this clause laused on dissolution of the Leame. the- that
;rrould 1>t:iiicirciiiiist~~ccsiiiwliich citli~r the siit,.;t:iiiti\.~ provisions
uf tlie .\l;inJatc a130layse<lor in \i.tiicli thc substanti\.e ~~rovisionjtill
remained in existence. in the latter case. there would be no anomalv in
Respondent retaining administration of the Mandate without a
sion for compulsory jurisdiction.
In the former case, i.e., if the Mandate as a whole lapsed on dissolu-
tion of the League, the fact that Respondent "holds on" to the right
to administer the temtory, whether legitimately or not, cannot by any
mle of law result in the amendment and adaptation of the compromis-
sory clause so as ta impose on Respondent a compulsory jurisdiction to
which it had not consented.
141. Sir Louis Mbanefo. rested his judgment on a somewhat similar
ground. He stated as foUows:
"The purpose of the Mandate, however, is the weU-beingand de-
veloument of the ueoules of the territories as a sacred tmst ofcivilisa-
tion:That yurlm;e ha iiot set Ixen acliieved. and no one kas sug-
gestril that it lias been abandoncd or rçnderctl in\.alid with the dis-
solution of the League.
Although the League was dissolved, the Mandate still continues
and the rights and obligations embodied in it becameasit were,main-
tainedat the levelat which thev wereonthe dissolution ofthe Leame.
It is on this ground that the ~es~ondent can justify its right to Con-
tinue to administer the temtory 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 Memben of the
League at the time of its dissolution, and continues notwithstanding
the termination of the League's functions '."

Sir Louis DIbsnefo does not appear to use the "purpose of +e Man-
date" as a factor from which, together with other factors, an imptied
term relative ta the continued existence of the compromissory clause
is deduced. If that nevertheless were to be the basis of his reasoning,
termsnd2.t refers to its submissions regarding the implication of

However, the learned Judge appears to suggest that there is some
de of law to the effect that an institution such aç the Mandate cannot
not sa. Refereiice need only be made to the passage quoted from Theclearly
Law ofTreatiesby Lord McNair as authority against the existence of any
---. n--e3.
Secondlv. if some such mle existed. it could hardlv eo further than to
pro\,ide tl;:;tlie institution siiould s"r\fi& accordiiii: Ïo its terms. Sur-
vival cannot "sornehow operatc to add stature to the institution, so Io

' South West Africa, Preliminory Objections,Judgmcnl. I.C.J. Re1962.p. 445.
Vids paras.105-109.supra.
V,de Chap. III,para.30.supra.256 SOUTH WEST AFRICA

speak, giving it an added effect" '.Such a principle could not operate
to amend the terms of the institution so as to render them operable
where otherwise they would not be. In this respect, Sir Louis Mbanefo's
reference to rights being maintained "at the level at which tliey were on
the dissolution of the League", is, it is respectfully submitted, fallacious.
As has been pointed out above 2. there is a vast difference in substance

as well as in form between an obligation to be brought to Court by a
Member of the League as a functioning organization, and, on the other
hand, one operating in favour of an immutable number of States quite
divorced from the control and activities of the League.
It is submitted therefore that no principle of law operates to produce
the effect set out in the separate opinion of Sir Louis hlbanefo.

VI. Conclusionregardingth6Efect of theDissolulioiiof theLeague

142. For the reasons set out above, Respondent submits that the
compromissory clause lapsed, also on the ground that after dissolution
of the League there were no States entitled to invoke the Clause.

143. The puipose of the above consideration of the compromissory
clause was to determine whether. on the lapse of the provisions of
Article 6 of the Mandate, it could have served to keep the Mandate
alive. It is submitted that, in addition to the reasons advanced in Part
A above ), this question must be answered in the negative al50 on the
grounds that-

(a) the compromissory clause was not intended to provide for any
supervisory functions in respect of Mandates, and, in any event,
(b) it has itself lapsed as a result of-
(i) the disappearance, on the dissolution of the Permanent Court
of International Justice. of the tribunal provided for in the
clause for the adjudication of disputes, 'and
(ii) the disappearance, on the dissolution of the League, of mem-
bership in the League mentioned in the clause aç a requisite
for invoking it.

1 Souih li'eAfricn,Prelinrinnry Obicctionr,judgment. I.C.J. Reporlr1962,p. 517
(Judges Spender and Fitzmnurice).
2 Vide paras. 72-79and 93,supra.
3 Part A, paras.12-16,rupro. CHAPTER VI

SUBMISSIONS

For the reasons hereinbefore advanced, supplemented as may be
iiecessary in later stages of these Proceedings, Respondent. as far as
this portion of its Counter-Memorial is concemed, prays and requests:
(a) that al1 of Applicants' Submissions I to g ' be dismissed, on the
ground that the Mandate for South West Africa lapsed in toto
upon dissolution of the League of Nations;
(b) alternatively, and in the event of the honourable Court finding
. that the Mandate for South West Africa is still in existence:
that Applicants' Submissions Nos. 7 and 8 be dismissed, as well
nual reports and supervisory functions. on the ground that Res-, an-
pondent's former obligations to report and account to, and to
submit to the supervision of, the Council and the League of Nations,
lapsed upon dissolution of the League and have not been replaced
by any similar obligations relative to supervision by any organ of
the United Nations or any other organization or body. Annexesto Book U of the Counter-Mernorialhled by the
Government of the Republic of South Africa
Annex A

PARTICIPATIO :NY MEMBER SF THE UNITEDNATIONS IN DEBATES IN
THAT ORGANIZATIO DNURING THE YEARS1947, 1948 AND 1949 CON-
CERNING THE "QWÇTION OF SOUTH WESTA~Rlc.4''

FIRST PART

Index toStatements O/Al1StateswhichParticipated

'9Fourth Committee

38th Meeting, 7 October 1947, MY.Lucero.p. 52.
1949
Fourth Committee
130th Meeting,21 November 1949, MY.Tedin Uriburu,p. 218.
134th Meeting, 23 November 1949,Mr. Tedi* Uriburu,p. 242.
139th Meeting, 28 November 1949,Mr. Tedis Uribairu.p. 272.
140th Meetin-. zq November xq.q..r. Tedin Uriburu, -.276.
AUSTRALIA
1947
Fourth Committee
39th Meeting. 8 Octoher 1947,MY.Evatt, p. 58.
Plenary

104th Meeting,I November 1947. Mr. Evatt, p. 581.
Trusteeship Council
2nd Session.1st Pari, 6thme et -nI,December 1~.7..Y.Forsyth.
p.122.
2nd Session, 1st Part, 15th Meeting,12December 1947.MY.For-
syth, pp. 476, 494, 506; Mr. Loomes,p. 509.
2nd Session, 1st Part, 18th Meeting, 16December 1947,MY.For-
syth, p. 596.
1,4.
Trusteeship Council
3rd Session,pst Meeting, 23 July 1948.MY.Forsyth,p. 409.
3rd Session, 41st Meeting, 4 August 1948, Mr. Forsyth,pp. 532.
.rd-.,O-.
3rd Session, 42nd Meeting, 4 August 1948,MY. Forsyth,pp. i40.
54%545.546, 547. 548, 549. 551. 552.
1949
Fourth Committee
134th Meeting, 23 November 1949.Mr. Hood,p. 238.

19Trusteeship Council
5th Session, 25th Meeting, 20 July 1949, Mr. Hood, pp. 310,
312. COUNTER-MEMORIAL OF SOUTH AFRICA

1)ELGIUM

194Fourth Committee

33rd Meeting, 27 September 1947, Mr. Ryckmans, p. 17.
38th Meeting, 7 October 1947,MY.Ryckmans, p. 52.
44th Meeting, 14 October 1947,MY.Ryckmans, p. 90
45th Meeting, 15 October 1947,MY.Ryckmans, pp. 94.96.
Trusteeship Council
2nd Session, 1st Part, 6th Meeting, I December 1947.Mr. Ryck-
mans, pp. 124. 125, 126, 128.
2nd Session.1st Part. 15th Meeting. 12 December 104,.,Y.Rvck-
mans, pp: 473, 482,489,497. ,5&.
2nd Session,1st Part, 18th Meeting,16December 1947,MY.Ryck-
mans. PP. 576.577.580,595,604
1948
Fourth Committee
79th Meeting, 12 November 1948,MY.Ryckmans, p. 324.
8znd Meeting, 17 November 1948,Mr. Ryckmans, p. 362.
83rd Meeting, 18 November 1948,MY.Ryckmans. p. 372.
84th Meeting, 19 November 1948,MY.Ryckmans. p. 375.
Trusteeship Council
3rd Session, 31st Meeting. 23 July 1948,Mr. Ryckmans, pp. 406,
- -. . .~ - -
3rd Session,41st Meeting,4 August 1948,MY.Ryckmans, pp. 531,

3rd Sess~on,4znd Meeting,4 August 1948,Mr.Ryckmns, pp. 540,

54%543. 544.545.547. 548. 549. 550. 551.
'949
Fourth Committee
129th Meeting, 18 November 1949,MY.de Bruyne, p. 211.
132nd Meeting, 22 November 1949, Mr. de Bruyne, p. 227
134th Meeting, 23 November 1949.MY.de Bruyne, pp. 238, 242.
137th Meeting, 25 November 1949, MY.Fenaux, p. 257.
139th Meeting, 28 November 1949. MY.Fenaux, p. 272.
140th Meeting, 29 November 1949,Mr. Fenaux, pp. 280, 282.
Plenary
269th Meeting, 6 December 1949, MY.Lebeau,p. 533.
Trusteeship Council
5th Session, 1st Meeting, 15 June 1949,MY.Ryckmans, p. 2.
5th Session, 25th Meeting, 20 July 1949,Mr. Ryckmans. pp. 310,
312.

BOLNIA
1947
Fourth Comrnittee
40th Meeting, g October 1947,MY.Moreno,p. 61.
BRAZIL

194Fourth Cornmittee
33rd Meeting, 27 September 1947, MY.Petaieado.p. 16.
39th Meeting, 8 October 1947,MY.Penteado,p. 55.260 SOUTH WEST AFRICA

1948
Fourih Committee
78th Meeting,II November 1948,Mr. Maia, p. 318.
'949
Fourth Committee
131st Meeting, 21 November 1949,MY.d'Aquino,pp. 219, 220.
222, 223.
13znd Meeting, zz November 1949,MY.d'Aquino,p. 223.
135th Meeting, 24 November 1949,MY.d'Aquino,p. 243.
136th hleeting, 25 November 1949,Mr. d'Aquino,p. 253
137th Meeting, 25 November 1949,MY.Jobim, p. 256.
139th Meeting,28 November 1949,MY.Jobim, p. 269.
140th Meeting,29 November 1949,Mr. Jobim, pp. 274, 278, 281.

Plenary
269th Meeting, 6 December 1949.MY.d'Aquino,p. 529.
~U-MA
1948~
Fourth Committee
8znd Meeting, 17 November 1948, U So Nuyn, p. 363.
BYELORUSSIAN SOVIET SOCIALIST REPUBLIC

194Fourth Committee
32nd Meeting, 26 September 1947,Mr. Shmigov,p. 12.
40th Meeting, 9 October 1947,Mr. Kiselev, pp. 64, 66.

CANADA
1947
Fourth Committee
39th Meeting, 8 October 1947,Mr. Bradette,p. 56.
47th Meeting,23 October 1947. Mr. Bradette,p. 106.
'949
Fourth Committee
132nd Meeting, 22 November 1949,Major-GeneralBurns,p. 229.
136th Meeting, 25 November 1949,MY.Blais, p. 250.
138th Meeting, 26 November 1949,MY.Blais. p. 267.
139th Meeting, 28 November 1949,MY.Blais, p. 268.

CHILE
1947
Fourth Committee
40th Meeting, g October 1947,MY.Soto,p. 61.
'949
Fourth Committee
134th Meeting, 23 November 1949,Mr. Valenzuela,p. 237.
139th Meeting, 28 November 1949,MY.Valenzuela,p. 272.
CHINA

'9Fourth Committee
31st Meeting, 25 September 1947.MY. Liu Chieh.p. 6.
38th Meeting, 7 October 1947.MY.Liu Chieh,p. 51.
40th hleeting, 9 October 1947,Mr. Liu Chieh,pp. 61, 65.
45th Meeting, 15 October 1947,MY.Liu Chieh.p. 95. COUNTER-MEMOR OALSOUTH AERICA

Plenary
105th Meeting, I November 1947, MY.Chieh,p. 598.
Tmsteeship Council
2nd Session, 1st Part, 6th Meeting, I December 1947, MY. Liu
Chieh, pp. 121. 123. 125, 126, 131. 133.
2nd Session, 1st l'art, 15th Meeting12 December 1947, MY.Liu
Chieh.pp. 473, 478, 485,486,498, 501. 502, 503. 504. 505, 507.
510, $11.
2nd Session, 1st Part, 18th Meeting. 16December 1947,MY. Lin
Mousheng,pp. 575. 577, 578, 580; MY.Liu Chieh,p. 601.
1948
Fourth Committee
76th hfeeting, 9 November 1948.MY.Liu Chieh,p. 294.
77th Meeting, IO November 1948,MY.Liu Chieh,p. 299.
Tmsteeship Council
3rd Session, 31st Meeting, 23 July 1948,Mr. Liu Chieh,pp. 411,

?rd Session,41st hfeeting, 4 August 1948,MY.Liu Chieh,pp. 532,
- 535 (President), 536.-
3rd Session,42nd Meeting,4 Auyst 1948.Mr. Liu Chi& PP.540,
541 (President), 542 (President). 543 (l'resident), 548,549 (Pre-
sident), $50, $51 (President).

'94Fourth Committee
129th Meeting, 18 Xovember 1949, MY.Liu, p. 208.
134th Meeting, 23 November 1949,MY.Liu, p. 237.
139th Meeting, 28 November 1949, MY.Tang,p. 271.
140th Meeting, 29 November 1949,MY.Liu, pp. 277, 280
Tmsteeship Council
5th Session, 27th Meeting,21 July 1949,MY.Liu, p. 334.

COLOMBIA
'947
Fonrth Committee
33rd Meeting, 27 September 1947,MY. Yepes,p. 14.
40th Meeting-.q October 1947.MY.Sourdis,p. 64.
plinary
105th Meeting. I November 1947.MY. Yepes, p. 602.
COSTA RICA

194Fourth Committec
40th Meeting, 9 October 1947,MY.Fournier,p. 63.
Tnisteeship C&ncil
2nd Session, 1st Part, 15th Meeting, 12 December 1947, MY.

Morales, pp. 476, 488, 499, 506.
1948
Fourth Committee
Sznd Meeting, 17 Xovember 1948, MY.Cnnas,p. 365.
84th hfeetin., 1. November 1948, MY.Canas,p. 374.
Tmsteeship Council
3rd Session, qznd Meeting, 4 August 1948, MY.Canas,pp. 541,
546. 548.262 SOUTH WEST AFRICA

'9Tmçteeship Council
5th Session, 1st Meeting, 15 June 1949, Mr. Canas, p. 3.

CUBA
1947
Fourth Committee
32nd hleeting, 26 September 1947. Mr. Meyer. p. 9.
39th Meeting, 8 October 1947,Mr. Meyer, p. 55.
47th Meeting, 23 October 1947,Mr. Meyer, p. 105.
1948
Fourth Cominittee
82nd Meeting, 17 November 1948. MY. PérezCisneros, pp. 355.
84th Meeting, 19 November 1948, Mr. PérezCisneros.p. 373.

'949
Fourth Committee
130th Meeting, 21 November 1949, Mr. PérezCisneros, pp. 216,
217.
131st Meeting.21 November 1949, MY. PérezCisneros, pp. 219.
221,222.
134th Meeting, 23 November 1949.Mr. Ldpez, p.236.
139th Meeting, 28 November 1949,MY.Ldpez, p. 271..
140th Meeting. zg November 1949,MY.L6Pez.p. 280.

CZECHOSLOVAKIA
'947
Fourth Committee
45th Meeting,15 October 1947,MY.Hyka, p. 95.
1948
Fourth Committee
80th Meeting, 13 November 1948,Dr. Chyle. p. 335.
DENMARK
1947
Fourth Committee
31st Meeting, 25 September 1947. Mr. Lannung, p. 8.
33rd Meeting, 27 September 1947,MY.Lannung, p. 17.
38th Meeting, 7 October1947. Mr. Lannzang.p. 46.
40th hleeting, 9 October 1947,Mr. Lannung, p. 63.
45th Meeting, 15 October 1947,MY. Lannung. pp. 93, 95.
47th hleeting, 23 October947,Mr. Lannun~,p. 106.
Plenary
104th Meeting,I November 1947,Mr. Lannung, p. 574.

'9Fourth Committee
81st Meeting, 16 November 1948,Mr. Lan~tung.p. 348.
82nd Meeting, 17 November 1948, Mr. Lannung, p. 355.
Plenary
164th hleeting, 26 November 1948,Mr. Lannung. p. 577.

79Plenary
269th Meeting, 6 December 1949,Mr. Lan~mng.p. 529. COUNTER-MEMOR OIASOUTH AFRICA

I3OMINICAN REPUBLIC
1948
Fourth Committee
82nd Meeting, 17 November 1948,MY.de Marchena,p. 361. , -
'949
Fourth Committee
130th Meeting, 21 November 1949, MY. de Marchena,pp. 217.
219.
131st Meeting,21 November 1949,Mr. deMarchena,pp. 220,222,
223.
13znd Meeting, 22 November 1949.MY.deMarchena,pp. 223,229.
135th Meeting, 24 November 1949,MY. de Marchena,p. 247.
137th Meeting, 25 November 1949.Mr. de Marchena,p. 257.
139th.Meeting. 28 November 1949, MY.de Marchena,p. 272
140th Meeting, 29 November 1949, Mr. de Marchena,pp. 274,
276.
EGYPT

194Fourth Committee
32nd hleeting, 26Septemher 1947,TahaEl-SayedBeyNasr, p. 13.
38th Meeting, 7 October 1947, Taha El-Sayed BeyNasr, p. 51.

'9Fourth Committee
137th Meeting, 25 November 1949. Mr. Farrag,pp.,257, 258.

FRANCE
'947 . .
Eourth Committee
3~nd Meeting, 26 September 1947,Alr. Mayer, p. II.
39th Meeting, 8 October 1947.Mr. Mayer, p. 53.
40th hleeting, g October 1947,MY.Mayer, p. 66.
45th Meeting, 15 October 1947,Mr. Mayer, p. 95.
Trusteeship Council
2nd Session.1st Part.6th Meetin-.IDecember 104*,.r.Gaveau,
pp. 126, 130, 132.
2nd Session, 1st Part, 15th Meeting, Iz December 1947,MY.Gar-
reau, pp. 471, 472, 480. 484, 500. 508. 510, 511.
2nd Session, 1st Part, 18th Meeting. 16December 1947,MT.Gar-
'eau. pp. 578. 579, 580, 594, 597. 600, 603.
1948
Fourth Coinmittee
79th Bleeting,12 November 1948,Mr. Garreau,p. 322.
m rus tee C ouncil
3rd Session,31st Meeting, 23 July 1948, Mr. Garreau,pp. 407,
409.415.416.
3rd Session, 41st hleeting, 4 August 1948,MY.Garreal~p, p. 533.
535,537,538.539. .
3rd Session,42nd Xleeting,4 August 1948,MY.Garreau,pp. 542,
544, 547, 549.
1949
Fourth Committee264 SOUTH WEST AFRICA

130th hleeting, 21 November 1949, Mr. Carreau, pp. 215, 217,
219.
131st Meeting, 21 November 1949,MY.Carreau,pp. 220,221, 222.
133rd Meeting. 23 November 1949, MY. Carreau, p. 230.
134th Meeting, 23 November 1949, Mr. Carreau, pp. 240. 241.
136th Meeting, 25 November 1949, Mr. Carreau, pp. 252, 254.
137th Meeting, 25 November 1949, Mr. Carreau, pp. 255, 256,
2<7.
r38CLil\leeting,26 November 1949, Mr. Carreau, p. 267.
139th hleeting, 28 November 1949, MY. Carreau, pp. 269, 271.
140th hleeting, 29 November 1949, Mr. Carreau, pp. 274, 279,
281.
Trusteeship Council
5th Session, 25th hleeting, 20 July 1949, Mr. Laurenlie, p. 311.
5th Session, 27th Meeting, 21 July 1949, Mr. Carreau. pp. 330
(President), 331 (President), 332 (President).

GREECE
1947
Courth Committee
33rd hleeting, 27 September 1947, MY. Dàamantopoiclos,p. 14.
194s
Fourtli Committee
iyti~ Aleeting,12 November 1948, Mr. Tranos, p. 320.
Sriid 3leeiriig, 17 November 1948. Mr. Tranos, p. 363.
'949
i-ourtli Coiiiniittee
131%Meeting. 21Noveniber 1q49,Mr. Lely, p. 219.
133rd Aleeting 23 Xoveinbei 1049. hlr. Lely, p. 232.
134th Meeting, 23 Xovember 1949. Mr-.Lely, p. 238.
135th Meeting. 24 Novernber 1949. i'vI>Lely, p. 242.
137th Meeting, 25 Soveinber 1419,MY. Lely, p. 256, 257. 258.
Plenary

269th Meeting.. b December 1949. Mr. Lely, p. 530.
GUATEMALA
1947
l;ourtli Committee
31st hleeting, 25 September 1947, Air.h!t.ndoza,p. 8.
40th Meeting, 9 October 1947, Mr. iliie~doza,p. 03.
Plenas.
105th Meeting 1, Xovember 1947, Mr. Mendoza, p. 604.
'949
Fourtb Committee

130th Meeting, 21 November 1949 Mr. Mendoza, pp. 217, 218.
131st hleeting, 21 November 1949, Mr. Mendoza, p. 223.
13znd Aleeting, 22 November 1949. .Ur. hle~rdoza,pp. 226, 229.
133rd Meeting, 23 November 1949. Mf. Mc.n<li~zup. 231.
134th hleeting. 23 November 1949, Mr. Mendoza, iip.236. 241.
135th Meeting, 24 November 1949, Mr. Meitdurr<,p. 244.
136th Neeting, 25 November 1949, Mr. Mendoza. pp. 252, 2jj.
137th Meeting, 25 November 1949, Mr. Mendoza, pp. 254, 255.
257, 258. COUNTER-MEMORIAL OP SOUTH AFRICA 265

139th Meeting, 28 November 1949, MY. Mendoza, pp. 268, 270,
271.
~~iih~eetin~, 29 November 1949. MI. Mendoza. pp. 273. 274.
279.
141st Meeting, z December 1949, Mr. Mendoza, p. 282.
Plenary
269th Meeting, 6 December 1949, MY. Mendoza, p.533.

HAIT1
1947
Fourth Committee
32nd Meeting, 26 September 19/7. Mr. Dorsinville, p. 12
40th Meeting-.9 October 194..~Mr. Dorsinville, p. 59.
Plenary
105th RIreting, I November 1947, MY. Vieux, p. 606.
1077-
Fourth Cc~mmittee
79th Meeting, 12 November 1948, Mr. Apollon. p. 321.
1949
Fourth Committee
13isi Meeting, 21 November 1949, Mr. Alexis, pp. 220, 221.
132nd hleeting, 22 November 1949,MY.Almis, p. 228.
133rd Meeting, 23 November 1949, Mr. Alexis, p. 234.
134th Meeting, 23 November 1949. Mr. Alexis, pp. 238, 240.
136th Meeting, 25 November 1949, Mr. Alexis, p. 254.
147th Meeting, 25 November 1949. MY. Alexis, pp. 255, 256.
138th Meeting, 26 November 1949. MY. Alexis, p. 265.
139th hleeting, 28 November 1949,Mr. Alexis, pp. 268, 270, 271.
140th Meeting, 29 November 1949. Mr. Alexis, pp. 274, 278.

HONDURAS
1947
Fourth Committee
33rd Meeting, 27 September 1947, Mr. Alvarado Trochez,p. 18.

7947
Foiirth Committee
31st Me~ting.25 September 1947,Rajah Sir Maharaj Singh, p. 4.
32nd Meeting, 26 September 1947.Rajah Sir Maharaj Singh, p. g.
33rd Meeting, 27 September 1947, Rajah Sir Maharaj Smgh,
p. IO.
38th Meeting. 7 Octoher 1047. Rajah Sir Marahaj Singh, p. 45.
40th Meeting. 9 October 1947.Raiah Sir Maharaj Singh, p. 62.
45th Meeting, 15 October 194:. Rajah Sir Maharaj Singh. p. 93.
Plenary
104th Meeting, I November 1947. Ruiah Sir Maharaj Singh,
P. 573.
105th Meeting. I November 1947. dlrc. Pandit, p. 596.
105th Meeting, I November 1947, Rajah Sir Maharaj Singh,
PP. 622. 649.
7948
Fourth Committee
77th hleeting, IO November 1948,Mrs. Pandtf. p. 300.266 SOUTH WEST AFRICA

81st Meeting, 16 November 1948,M7s. Pandit, p. 351.
. : 8znd Meeting, 17 November 1948,MY.Shiva Rao, p. 358,
83rd Meeting, 18 November 1948,MY.Shiva Rao. pp. 369, 370.
84th Meeting, 19 November 1948,MY. Shiva Rao, pp. 373, 376.

Plenary
164th Meeting, 26November 1948,M7s. Pandit, p. 582.
'949
Fourth Committee
129th Meeting, 18 November 1949.Mr. Shiva Rao, p. 210.
131st Meeting, 21 November 1949,Mr. Shiva Rao, pp. 220, 221.
13znd Meeting, 22 November 1949.MY. Shiva Rao, pp. 224, 226.
134th Meeting, 23November 1949,M7.Shiva Rao,p. 236.
136th Meeting, 25 November 1949,MY. Shiva Rao, pp. 251, 253.
137th Meeting, 25 November 1949,MY. Chaudhuri, p. 255.
138th Meeting, 26November 1949.Mr. Chaudhuri, p. 267.
139th Meeting, 28 November 1949,Mr. Chaudhi~ri,pp. 268, 269.
140th Meeting, zg November 1949,MY. Chaudhuri. p. 277.
Plenary
269th Meeting, 6 December 1949,Mr. Chaudhuri. pp. 530, 535.

1RAQ

19Fourth Committee
3znd Meeting, 26 September 1947,MY. Khalidy, p. IO.
33rd Meeting, 27 September 1947,MY. Khalidy, p. 17.
40th Meeting, 9 October 1947,MY. Khalidy, pp. 60, 66.

Plenary
~ojth Meeting, I November 1947,MY.Jamli. p. 621.
Trusteeship Council
2nd Session,1st Part,6th Meeting. I December 1947,Mr. Khalidy,
pp. 121, 126, 128, 131, 132.
2nd Session, 1st Part, 15th Meeting, 12 December 1947. MT.
Khalidy. pp. 482, 492, 493. 494,,496. 500. 506, 508. 509. 512.
2nd Session, 1st Part, 18th Meeting, 16 December 1947, MY.
Khalidy. pp. 578. 579, 580. 595. 599, 603.
1948
Fourth Committee
79th Meeting, 12November 1948,MY. Khalidy, p. 322.
Sznd Meeting, 17 November 1948,MI. Khalidy, p. 360.
Trusteeship Council
3rd Session,42nd Meeting, 4 August 1948,Mr. Khalidy, pp. 540,

541, 544, 546, 548. 550.
'949
Trusteeship Council
jth Session,25th Meeting, 20 July 1949.Mr. Khalidy, p. 312.
5th Session,27th Meeting, 21 July 1949,M7. Khalidy. p. 334.

ISRAEL
'949
Fourth Committee
13znd Meeting, 22 November 1949.Mr. Harman, p. 229. COUNTER-MEMORIAL OF SOUTH AFRICA 267

LIBERIA

1947
Fourth Committee
' 33rd Meeting,27 September 1947,MY.Dennis.p. 17.
40th Meeting,9 October 1947,Mr. Dennis,p. 61.
1949
Fourth Committee
13znd Meeting, 22 November 1949,Mr. Kolenky,p. 228.
134th Meeting,23 November 1949,Mr. King, p. 242.
136th Meeting,25 November 1949,Mr. King, p. 251.
139th Meeting,28 November 1949,MY.King, p. 269.
140th Meeting,29 November 1949,Mr. Cooper.p. 280.
Plenary
269th Meeting,6 December 1949,MY.Cooper,p. 531.
MEXICO

19Fourth Committee
33rd Meeting, 27 September 1947,MY.Padilla Nmo, p. 16.
39th Meeting,8 October 1947,Mr. Padilla Nervo,p. 54.
Plenary
105th Meeting, I November 1947,MY.Padilla iVervo.p. 591.

Tmsteeship Council
2nd Session,1st Part, 6th Meeting,IDecember 1947,Mr. Padilla
Nnvo, p. 129.
2nd Session, 1st Part, 15th Meeting, 12 December 1947. MY.
Noriega,pp. 475.483. 492,497,499, 509.
2nd Session, 1st Part, 18th Meeting, 16 December 1947. Mr.
~voriega,PP. 579. 593, 594, 596. 597, 598. 599.604. 605
1, 8
Fourth Committee
79th Meeting, 12Xovember 1948,Mr. Noriega,p. 326.
8znd Meeting, 17 November 1948,MY.Noriega,p. 360.
84th Meeting, 19 November 1948,Mr. Noriega,p. 377.
Tmsteeship Council
3rd Session, 31st Meeting, 23 July 1948, MY. Padilla Nervo,
PP 408.414.
3rd Session, 41st Meeting,4 August 1948. Mr. Noriega,pp. 533.
536, 538.
3rd Session,4znd Meeting,4 August 1948,Mr. Noriega,pp. 541,
543,544, 545, 546,548,549.
'949
Fourth Committee
130th Meeting, 21 November 1949, MY. Noriega, pp. 217, 218.
131st Meeting, 21 Xovember 1949, MY. Noriega, pp. 219, 221.
134th Meeting, 23 November 1949. MY. Noriega, pp. 235, 238.
136th Meeting, 25 November 1949,Mr. Noriega,p. 251.
137th Meeting, 25 November 1949,Mr. Noriega,pp. 256,257.
139th Meeting,28 N~vember 1949,MY.A'oriega,pp. 268,270.
140th Meeting,29November 1949,MY.Noriega,pp. 273,277.280,
281, 282.
Trusteeship Council
5th Session,1st Meeting,15June 1949,MY.Padilla Nervo,pp. 2.3. SOUTH WEST AFRIC.4

5th Session, 25th hleeting, 20 July 1949, Mr. Noriega, pp. 310,
312.
5th Session, 27th Meeting, 21 July 1949, Mr. Noriega, pp. 331,
335.
NETHERLANDS
'947
Fourth Committee
31st hleeting, 25 September 1947,Mr. Kernkamp. p. 8.
38th Meeting, 7 October 1947,Mr. Kernkamp, p. 52.
45th Meeting, 15 October 1947,Mr. Kernkamp, p. 93.
47th Meeting, 23 October 1947,Mr. Kernkamp, p. 106.
Plenary

105th Meeting, I November 1947,Mr. Kernkamp, p. 605.
1949
Fourth Committee
136th Meeting, 25November 1949,Mr. Spils, p. 251.
NEW ZEALAND

194Fourth Committee

~3rd Meeting. 27 September 1947,Sir Carl Berendsen,p. 17.
truste es hi^Council
2nd ~esiion, 1st Part, 6th Meeting, I December 1947, Si7 Carl
Berendsen, pp. 125, 126,127, 132.
2nd Session, 1st Part, 15th Meeting, 12 December 1947.Sir Carl
Berendsen. pp. 478, 508.
10, ,~
Triisteeship Council
3rd Session, 3rd Meeting, 23July 1948, Mr. Reid, pp. 409, 413.
3rd Session,42nd Meeting,4 August 1948,Mr. Reid, pp. 546,550.
551, 552.

19Trusteeship Council
5th Session. 25th Meeting, 20 July 1949, Sir Carl Berendsen,
p. 311.

5th Session, 27th Meeting, 21 July 1949, Sir Carl Berendsen,
' P. 334.
NICARAGUA
1947
Fourth Committee
38th Meeting, 7 October 1947, MY.Sanson-Teran,p. 52.

NORW.4Y
1949
Fourth Committee
129th Meeting, 18 November 1949, Mr. Worm-Muller, p. 212.
134th Meeting, 23 November 1949, MY. Worm-Mzdler, p. 241.
PAKISTA~ ~

19Fourth Committee

39th Meeting, 8 October 1947,Mr. Pirzarla, p. 54. COUNTER-MEMOR IALSOUTH AFRICA 269

Plenary
105th Meeting. I November 1947.Mr. Pirzada, p. 617.
1948
Fourth Committee
78th Meeting, II November 1948,Mr. Chudhury, p. 314.
Y.,
Fourth Committee
135th Meeting, 24 November 1949,MY.Shahban, p.243.
PANAMA

19Fourth Committee
33rd Meeting, 27 September 1947,Mr. Illwcca,p. 16.
40th Meeting, 9 October 1947,Mr. Morales. p. 61.
45th Meeting, 15 October 1947,Mr. Illucca, p. 94.

PERU
1947
Fourth Committee
39th Meeting, 8 October 1947,MY. Labarthe,p. 56.
1949
Fourth Committee
136th Meeting, 25 November 1949,Mr. ArévaloCarreno,p. 252.
PHILIPPINE REPUBLIC
'947
Fourth Cornmittee
31st Meeting, 25 Septernber 1947,GeneralRomulo, p. 7.
39th Meeting, 8 October 1947,GeneralRomnlo,p. 57.
Tmsteeship Council
2nd Session, 1st Part, 6th Meeting,IDecember 1947,Mr. Inglés,
p. 127.
2nd Session,1st Part, 15th Meeting12 December 1947,MY.Inglés,
PP. 472, 475, 495.
2nd Session,1st Part, 18th Meeting,16December 1947,Mr. Inglés.
p. 600.

194Fourth Committee
78th Meeting, II November 1948,MY.Ldpez, p. 316 .
79th Meeting, 12 November 1948,Mr. Ldpez, p. 326.
8znd Meeting, 17 November 1948,Mr. Ldpez, p. 361.
Tmsteeship Council
3rd Session, 31st Meeting, 23 July 1948, MY. Carfiio, pp. 408,
413. 4~6.
3rd Session, 42nd Meeting, 4 August 1948, MY. Carpio, pp. 547,
550. 552.

19Fourth Committee
128th Meeting, 18 November 1949, MY. Inglés,p. 203.
129th Meeting, 18 Kovember 1949.MY.Carpio, p. 212.
133rd Meeting, 23 November 1949,Mr. Inglés,p. 231.
138th Meeting, 26 November 1949,Mr. Inglés,p. 267.
139th Meeting, 28 November 1949,Mr. Carpio, p. 268.
qoth Meeting, 29 November 1949,MY.Carpio, pp. 274, 278, 280. 270 SOUTH WEST AFRICA

Tmsteeship Council
5th Session,25th Meeting. 20 July 1949.MY.InglLs.pp. 309.311.
5th Session, 27th Meeting, 21 July 1949, Mr. Ingles, pp. 329.
330. 333. 335.

POLAND
'947
Fourth Committee
31st Meeting, 25 September 1947, MY. Drohojowski,p. 6.
38th Meeting, 7 October 1947, Mr. Drohojowski,p. 49.
45th Meeting, 15 October 1947, Mr. Bramson, p. 94.
47th Mectin-,23-October 194....r. Bramson, p. 106.
pie'Aary
104th Meeting, I Xovember 1947.MY.Zebrowski,p. 589.
1948
Fourth Committee
80th Meeting, 13 November 1948,Mr. Lapter, p. 328.
82nd Meeting, 17 Xovember 1948,Mr. Mencel.p. 359.
Plenary
164th Meeting,26 November 1948,Mr. Zebrowski, -.59~.

19Fowth Cornmittee
134th Meeting, 23 November 1949,MY.Zebrowski,p. 240.
135th Meeting,24 Xovember 1949,Mr. Zebrowski,p. 248.
139th Meeting, 28 November 1949,Mr. Zebrowski.p. 271.

SWEDEN
1948
Fourth Cornmittee
82nd Meeting,17 November 1948,MY.Bergvall,p. 357.
SYRIA
'947
Fourth Committee
32nd Meeting,26 September 1947,Emir Adel Arslan, p. II.
45th Meeting, 15 October 1947,Mr. Zeineddin,p. 94.
Plenary
105th Meeting, I November 1947, MY.Zeineddin, p. 616.
1949
Fourth Committee
130th Meeting, 21 November 1949,Mr. Mughir, p. 214.
131st Meeting, 21 November 1949,MY.Mughir, p. 222.
140th Meeting, 29 November 1949,MY.Mtrghir,p. 279.

THAILAND
'949
Fourth Committee
128th Meeting, 18 November 1949, Prince Wan Waithayakon,
p. 208.
133rd Meeting, 23 November 1949, Prince Wan Waithayakon.
p. 232.
139th Meeting, 28 November 1949, Prince Wan Waithayakon.
p. 271.
140th Meeting. 2 November 1949, Prince Wan Waithayakon.
PP. 275. 279, 2 2 COUNTER-MEMOR IA LOUTH AFRICA 271

Plenary .. I.
269th Meeting, 6 ~ecemberi~4~. .Prince Wan Waithayakon,
P. 534.
UKRAINIAN SOVIET SOCIALIST REPUBLIC
;p
19Fourth Committee
3znd Meeting,26 September 1947.Mr. Voina,p. 13.
40th Meeting,g October 1947,Mr. Voina,p. 59.

UNION'OFSOUTH AFRICA
1947
. Fourth Committee -"
.- 31st Meeting,25 September 1947,Mr. Lawrence;p. 3.
32nd Meeting,26 SePtember 1947,Mr. Lawrence,p. 9..
' 33rd Meeting,27 September 1947,Mr. Lawrence,p. 15.
-'38th Meeting,7 October 1947,Mr. Lawrence..p.47.
40th Meeting,g October 1947,MY.Lawrence,p. 64.
47th Meeting, 23 October 1947,MY.Andrews,p. 106. C.'.'.
Plenary
105th Meeting, I ovei in b94 7, MY. Lawrence,pp. 626, 649.
1948 ', :,<.
Fouith cornmittee
76th Meeting,g ~ovembeh 19~8,Mr. Lou?, pp. 287, 296.
77th Meeting, IO Xovember 1948,Mr. Louw,p. 297.
78th Meeting, II November 1948.MY.Louw,p. 307.
81st Meeting, 16 November 1948,Mr. Louw,pp. 340,343, 344.
8znd Meeting, 17 November 1948,Mr. Louw,p. 366.
83rd Meeting. 18 November 1948,Mr:Louw, pp. 367, 370.
84th Meeting, rg November 1948,MY.Louw,pp. 376, 377.
Plenary :C'
164th Meeting, 26 November 1948,Mr. Louw.p. 586.
1949 ..
Fourth Committee
. .28th Meeting, 18 November 1949,Mr. Jooste,p. 199.
IzgthfMeeting, 18 November 199, Mr. Jooste,p. 212.
130th Meeting, 21 November 1949.MY.Jooste.pp. 213, 217, 218.
131st Meeting, 21 Xovember 1949,MY.Jooste,pp. 220. 222.
13znd Meeting. zz November 1949,Mr. Jooste,pp. 224,226.
134th Meeting, 23 Novemher 1949,Mr. Jooste,pp. 239, 241.r!
135th Meeting, 24 November 1949, MY.Jooste,p. 242.
136th Meeting,25 November 1949.Mr. Jooste,pp. 249. 250, 253.
137th Meeting,25 November 1949,MY.Jooste,pp. 254, 258.
138th Meeting;26 November 1949,MY.Eustace,p. 267.
139th Meeting,28 November 1949,Mr. Jooste,p. 270.
Plenary
269th Meeting, 6 December I~~~M , Y.Jooste,pp. 523, 536, 537.
O S.
UNION OF SOVIET SOCIALIST REPUBLICS
'947
Fourth Committee
3znd Meeting,26 September 1947,Mr. Stein. p. 9.
33rd Meeting,27 September 1947,Mr..Tsarafikin,p. 18.
38th Meeting,7 October 1947,Mr. Stem, p. 52.272 SOUTH WEST AFRICA

40th Meeting, g October 1947,Mr. Stein, p. 65.
45th Meeting, 15 October 1947,Mr. Stein, p. 96.
Plenary
105th Meeting, INovember 1947,Mr. Stein, p. 6x1.

1wFourth Committee
80th Meeting, 13 November 1948,Mr. Tsarapkin, p. 337.
81st Meeting. 16 November 1948,MY.Tsarapkin, p. 346
82nd hfeeting, 17 November 1948,M7. Tsarapkin, p. 357.
Tmsteeship Council
3rd Session, 31st Meeting, 23 July 1948,Mr. Tsarapkin, pp. 406,
408. 4.9. 417.
3rd Session,41st Meeting,4 August 1948,Mr. Tsarapkin, pp. 537,
ad-.
3rd Session,42nd Meeting,4 August 1948,Mr. Tsarapkin, pp. 541.
551.
1949
Fourth Committee
134th Meeting, 23 November 1949, Mr. Zarubin, p. 240.
135th Meeting, 24 November 1949, Mr. Zarubin, p. 242.
139th Meeting, 28 November 19IWQ,MMr. Zarubin,pp.2271.
-.. -.
~nisteeshi~ ~ouncil
5th Session, 27th Meeting,21 July 1949, Mr. Soldalov, pp. 331,

332. 333. 335.
UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN
IRELAND
1947
Fourth Committee
47th Meeting, 23 October 1947,Mr. Dauies, p. 105.14.

truste es hi^ Council
2nBurns, p. 125.Pa.rt, 6th Meeting,I December 1947, Sir Alan
2nd Session. 1st Part, 15th Meeting12 December 1947,Sir Alan
Burns, p. 507.

.Fourth Committee
77th Meeting, IO November 1948. Mr. Gordon-Walker, D. 298.
T&teesbip ciuncil .. . A *
3rd Session, 4Ist Meeting, 4 August 1948, Sir Alan Burns,
PP. 531. 536
3rd Session, 42nd Meeting, 4 August 1948, Sir Alan Burns,
PP. 54025478548. 551, 552.
1949
Fourth Committee
131st Meeting. 21 November 1949, Sir TerenceShone, p. 222.
133rd Meeting. 23 November 1949, Sir TerenceShone, p. 233.
134th hleeting. 23 November 1949, Sir TerenceShone, p. 240.
135th Meeting, 24 Xovember 1949, Sir TerenceShne, p. 246. COUNTER-MEMORIAL OF SOUTH AFRICA 273

137th Meeting, 25 November 1949. Mr. Flelcher-Cookep ,. 257.
139th Meeting, 28 November 1949, Sir TerenceShone,pp, ,269,

272.
140th Meeting, 29 November 1949,Sir TerenceShone,p. 276.
Plenary ,,
269th Meeting, 6 December 1949. Sir TerenceShone,p. 534.
Tmteeship Councii ' '
5th Session,27th Meeting, 21 July 1949,Sir Alun Burns,pp.,331,
..
332.
UNITED STATES OF AMERICA
1947
Fowth Committee
31st Meeting,25 September 1947.Mr. Dulles,p. 5.
33rd Meeting, 27 September 1947, Mr. Dulles,p. 18. t,,:,
38th Meeting,7 October 1947,Mr. Dulles,p. 50.
40th Meeting.g October 1947,Mr. Sayre, p. 65.
.:45th Meeting, 15 October 1947,MY.Sayre,p. 94.

Plenary
104th Meeting, i November 1947, Mr.'Sayre, p. 577.
Trusteeship Council
2nd Session, 1st Part, 6th Meeting, I December 1947,MY:~gi~.
p. 130.
2nd Session; 1st Part, 15th Meeting, 12 December 1947. MY.
Sayre (President), p. 470. :SI
2nd Session, 1st Part, 15th Meeting, 12 December 1947; Mr.
Ger% PP. 481. 482; 489;490. 495, 497. 499, 501. 503. 505.
2nd Session; 1st Part, 18th Meetmg, 16 December 1947. MY.
Gerig,pp. 576, 580, 600.
(8 -,:
1948
Fourth Committee ,. .. !
81st Meeting, 16 November 1948,Mr. saGe, p. 350.
8znd Meeting. 17 November 1948,Mr. Sayre, p. 363. .
Trusteeship Councii '!1
3rd Session,31st Meeting, 23July 1948,Mr. Saye, p. 410.
3rd Session,41st Meeting;qAugust 1948,Mr. Sayre, p. 534.
3rd Session, 42nd Meeting, 4 August 1948,Mr. Sayre, pp. 539.
54%541. 542. 543. 544. 546, 547, 548, 549.
' ( 5
I%urth Committee . ,L. . ... , I

131st Meeting, 21 November 1949,~r. Fahy, p. 221. ' ',,..>
133rd Meeting, 23 November 1949,MY.Fahy, p. 231.
134th Meet~ng,23 November.1949,MY.Fahy, pp:z38, 240.
137th Meeting, 25 November.1949, MY.Fahy,,pp. 254,.255, 256.
139th Meeting, 28 November 1949,MY.Fahy, pp. 268, 269.
140th Meeting, 29 November 1949,Mr. Fahy, pp. 276, 282.
Plenary
269th Meeting,6 December 1949,Mr. Fahy, p. 533.
Trusteeship Council
5th Session, 1st Meeting, 15 June 1949.MY.Sayre, pp. 2, 3.

5th Session,25th Meeting,zo July 1949,Mr. Sayre.pp. 309, 311.
5th Session,27th Meeting, 21 July 1949,Mr. Sayre,p. 332. SOUTH WEST AFRICA
274

URUGUAY

&rd Meeting, 27 Septemher 1947,Mr. Awosa, p. 13.
40th Meeting,9 October 1947,MY.Arrosa,p. 60.
Plenary
105th Meeting, INovember 1947.MY.Arrosa,p. 614.

~mmittee
:eting,II November 1948.MY.Gerona,p. 310.
~2ndMeeting, 17November 1948,Mr. Jiménez,p. 359.
Plenary
164th Meeting, 26 Yovember 1948,MY.Gerona,p. 579.
1949 ,
Fourth ~ommittee .
131st Meeting, 21 ~ovbber 1~4~.~~..~ac~ache>t,p. 222.
136th Meeting, 25 November 1949,Mr. MacEachen,p. 254.
139th Meeting,28 November 1949.MY.MacEachen,p: zjz.
140th Meeting,29,November1949, Mr. MacEackn, p. 280.

, '1h7..
Fourth Committee
,331d.Meeting.27 September 1947,MY.Lovera,p. 16.
1948
.;", Fourtii Commit'tee - .
. .. 80th Meeting, 13 November 1948.MY.Louera,p. 337.
.'. .'8ind Meeting, 17November 1948,Mr. Lovera,p. 357.
'949 , .
Fourth Committee 2,
130th Meeting, 21 November 1949,MY.Stolk,pp. 218, 219."
139th Meeting, 28 November 1949,MY.Marturet,p. 272.

'947
Fowth Committee
31st Meeting, 25 September 1947,Mr. Ribnikar,p. 7.
. .'.4çth Meeting. 15 October 1947. Ml. Ribnikar.p. 94.
1948
Fourth Committee i'4:
82nd Meeting, 17 November 1948,MY.Vilfan,p. 364.
1949
Fourth Committee
131st Meeting, 21 November 1949.MY.Vilfan,p. 2-21,
134th Meeting, 23 November 1949,MY.Vilfan,p. 235.
140th Meeting. 29 November 1949,Mr. Trebinjac,p. 275. COUNTER-MEMORIAL OF SOUTH AFRICA =75

SECOND PART

~rtractsfromStatementsbyRefiresentativesofCevtainStates

Fourth'Committee
MY. Boatt: "Although the General Assemhly was entitled to
recommend that a 'tmsteeship agreement be subrnived, the
countries represented at San Francisco had never uitended
it to be a legal obligation to place any temtory under tmstee-
ship. The obligation to suhmit information under Chapter'.XI
for territories not under trusteeshipran parallel to the provisions
of Chapter XII." (G.A., O.R., Second Sess., Fourth Cam.,
39th Meeting,8 Oct. 1947,p. 58.)
Plenary
MY.'Evatt: "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 stiU, in my
.. view, a Non-Self-Goveming Temtory. The Union Govern-
ment'will have to give, voluntarily, reports for the information
of the Secretary-General. The Secretary-General can do as he
chooseswith this information." (G.A.,O.R.,SecondSess.,Vol. 1,
104th Plenary Meeting, I Nov. 1947, p. 588.)
Tmsteeship Council
MY..Fwsyth: "The reports on Tmst Temtories are submitted
not merely to inform the Tmsteeship Council but to enable
the Tmsteeship Council to exercise its main function, the
supervision of administration. In the case of South West
Africa, which is not a Trust Temtory, the Tmsteeship Council
does not have the function of supervising administration.
The administration of South West Africa has been reserved
by the Govemment of the Union of South Africa as its own
concem, and that Governmeut, not having placed the temtory
under tmsteeship, does not recognize,the power of the Tmstee-
ship Councilto supervise its administration. There is, therefore,
a fundamental difference between the purpose for which the
report on South West Africa is submitted and the urpose for
which reports on Trust Territories are submitted."&K., O.R.,
SecadSess., First Part, 15th Meeting,12 Dec. 1947,p. 477.)
CHINA
Fourth Cornmittee
MY.Liu Chieh:"The only choicelay between tmsteeship and the
ant of independence. Article 80, paragraph 2, of the Charter
kher proved the obligatory character of the [tmsteeship]
system.. .. If the Union of South Africa placed South West
Africa under tmsteeship, it would not be deprived of the admi-
nistration of thetemtoy; and the only change would be the
placing of that administration under intemational super-
vision." (G.A.,O.R.,SecondSess.,FourthCam., 31st Meeting,
25 sep. 1947,P. 6.)276 SOUTH WEST AFRlCA

Plenary
MY.Chieh: "We are told that the Union of South Africa would
administer theTemtory of South West Africa in the spirit of
the Mandate of the League of Nations. I do not douht the
sincerity of this statement on the part of the Union of South
exist and that the Trusteesliip 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
aghost system?" (G.A., O.R.,SecondSess.,Vol. 1.1ogth Plenary
Meeting, INov. 1947,p. 601.)
COLOMBIA

Fourth Committee
MY.Ye9es: "If the Mandatewereto hecontinued, on whose behalf
would it be exercised? The League of Nations was defuuct.
In internationalas weii as in civil law, the hfandatory power
which it was responsible had ceased to exist." (G.A., O.R.,to
SecondSess., FourthComm.,33rd Meeting, 27 sep. 1947, p. 14.)
Plenary

MYLeague of Nations he exercised?would the mandate of the old
It could certainly not be the League of Nations. for it has
ceased to exist, and the mandate could not he exercised on
behalf of adead institution. In civil law, as we al1know, power
of attorney ceases upon the death of the principal. The same
idea extends, hy analogy, ta intemational law. We can conclude
that, since the League of Nations is dead, niandates exercised
under its authority have also lapsed, and the territories con-
cerned must fall under the Trusteeship System estahlished
by Article 77 of the Charter." (C.A., O.R.,SecondSess., Vol. 1,
105th Plenary hfeeting, I Nov. 1947, p. 602.)
CUBA
Fourth Committee
(i)MY. Meyer: "...the information submitted hy tlie Govem-
ment of the Union ofSouth Africa with regard ta South West
Africa could not be examined since South West Africa was
neither a T~st Temtory nor a Non-Self-Governing Temtory."
(C.A:, O.R. SecondSess., FourthComm.,3znd Meeting, 26 Sep.
1947, P. 103
(ii) MY. Meyer: "... disputed the contention of the Government
of the Union of South Africa that it had no alternative to
retaining the statusquo,nor did he recognize that South West
Africa constituted a category sui generis. The Charter was
very clear inecogniiing only three categories: Trust Temtones,
the Non-Self-Governing Territories and independent States."
(G.A., O.R.,SecondSess., FourthComm.,3gth'Meeting. 8 Oct.
1947. P. 55.).,
FRANCE
Trnsteeship Council
MY.Carreau: "That text [of the General Assemhly Resolution] COUNTER-MEMORIAL OF SOUTH AFRICA 277

was ver carefully drafted after lengthy discussionhecause the
AssembG, iii referring the report of the Government of the
Union of South Africa to the Tmsteeship Council,wanted ahove
al1to take the first step in the direction of international super-
vision over the former mandated 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 Govemment in that connection ...
Indeed, in the absence of a tmsteeship agreement, the
Council-and the same would have heen true of the Fourth
Committee-could examine the report of the South African
FirslParl, 15th 3leeting.12mDec. 1947,p. 480.)., Second Sess.,

INDIA
Fourtli Committee
India submitted a draft resolution which in paragraph 5 therof
contained the following statement:
"Whereas the temtory of South West Africa, thoughnot self-
governing, is at present outside the control and superyision
of the United Nations."
(C.A.,O.R.,SecondSess., Fourth Comm.,Annex 3h, p. 197.)

IRAQ
Fourth Committee
MY. Khalidy: ".. .pointed out that the tmsteeship system of the
United Nations had replaced the mandate system. . ..
The mandate system had ceased to function. The Uiiion of
South Africa had not accepted the tmsteeship system. to
which there was no alternative. The tmsteeship system offered
the only legal right to administer a temitory formerly under
mandate." (C.A., O.R., Second Sess., Fo%rrllr Comm., 32nd
Meeting, 26 sep. 1947,p. IO.)
Plenary
Mr. Jamali: "Now the League of Nations is dead, but the prin-
ciples underlying the mandate are not dead. Chapter XII of
the Charter certainly replaces Artic22 of the Covenant. . .
There is no obligation [ta place a Mandated territory under
the tmsteeship system], but these memhers of the General
at San Francisco will rememher that, although there was noter
obligation on the mandatory power to put a temtory under the
Tmsteeship System, it was implied that the mandatory Power
would either put such a territory nnder trusteeship in due
course, or declare its independence. . . .
There is no fnrther alternative...
1believe that the retention of the Territory of South West
Africa, neither under the Tmsteeship System nor as an inde-
pendent territory, is a retrograde step. It is contrary to the
spirit of the Charter, and its a denial of the right of the United
Nations to supervise the welfare and freedom of al1peoples aii
over the world." (C.A.,O.R.,SecondSess.. \'ol. 1, xojth Plenary
Meeting, I Nov. 1947, pp. 621-622.)278 SOUTH WEST AFRICA

Tmsteeship Council
MY. Khalidy: "1 had occasion to Say at the time [in the Fourth
Committee] that South West Africa is neither a colony, a
mandated territory nor a Trust Territory. It is not a mandated
territory, 1said, and 1stiUSaysobecause the League of Nations
from wliiclithe mandate derived legaily, is dead." (T.C., O.R.,
SecondSess.. First Part,15th hleeting,12 Dec. 1947,p. 482.)
NETHERLANDS
Fourth Committee
MY.Kernkamp: "He felt that the refusal of South Africa to place
the temtory under the international t~steeship system was
regrettable because since independence had not been granted
to the temtory its withdrawal from any system of international
supervision was a retrogressive step." (G.A., O.R., Second
Sess.,FourthComm.,38th hleeting. 7 Oct. 1947,p. 52.)
Plenary
Mr. Kernkamp: "The mandate system now does not operate.
As there is no longer a supervising authority, there is no longer
a a mandate system. The voluntary transmission of information,
merely forthe sake of information, by theUnionof SouthAfrica
to the Trusteeship Council does not give the Councilthe same
jurisdiction asthe Permanent Commissionon Mandates had. ...
... we consider that the present situation constitutes a step
backward, in so far asa territory once under international
supervision is now under no superintendence . .."(G.A.,O.R.,
SecondSess.,Vol.1,105th Plenary Meeting, I Nov. 1947,p. 605.)
NEW ZEALAND

Fourth Committee
Sir Cavl Berendsen: "Speaking as the representative of New
Zealand, he favoured the international supervision ofal1back-
on anyehlandatory Power to place a mandate under the trustee-n
ship system. The Committee could not therefore accuse the
Union of South Africa of failingin its duty." (G.A.,O.R..Second
Sess., FourthComm.,~3rdMeeting, 27 Sep. 1947.p. 17.)

Trusteeship Council
Sir Car1Berendsen: "This [South West Africa] is not a Trust
Territory. We denve no powers from the Charter. Our only
uowersare derived from the resolution ofthe General Assemblv,
and onr powers are limited by that resolution. . . . But weGe
not entitled to send a visiting mission. We are clearly notly
entitled to accept petitions. We are clearly not entitled to hear
oral representation." (T.C., O.R.,SecondSess., FirstPart,15th
Meeting. 12 Dec. 1947,pp. 478-479.)

PAKISTAN
Plenary
MY.Pirzada: "A simple comparison of the relevant Articles in
Chapters XI and XII of the Charter will show clearly the
advantage of one system over the other. The first advantage COUNTER-MEMOR IFLSOUTH AFRICA =79

that 1 would stress is that, under the present mandate system,
only one country is responsible for the proper administration
and the development of political and other iiistitutions
within the Temtoxy. It is the conscience of one State which
wiii be guiding it ali the time to foliowthe provisions laid down
in Chapter XI of the Charter. On the other hand, if it cornes
nnder the International Trusteeship System. it will be the
conscience of aii the United Nations, as represented in the
Trusteeship Council, which WU be guiding the administration
of the Temtory and which, therefore, has a greater chance of
being directed in the interests of the people ofthat Territory.
The second advantage wliich the Trusteeship System has
over the ordinary administration under Chapter Xl is that
intemational su~ervision is orovided under the International
As ;cg;iiiiitthat. under Chspter XI of the Clisrtur, ivliiclirelates
to thc administration of Son-Self-Go\'cminc Territuries-to
which class this Territory of South West Af;ica wviiihave to
belong if it is not brought under the Trusteeship System-there
is no ~rovision for international snoervision. and the onlv
supervisionthat exists takes the formbf suppliing information
on non-political matters for the consideration of the United
Nations; in other words, economic,social, andothermatters....
There are two systems under the Charter of the United
Nations, namely the administration of Non-Self-Goveming
Territories, and the administration of territories under the
Trusteeship System. This would be a third system-adminis-
tering in the spirit of the mandate-which the Charter does
not recognize and which the Charter seems to abolish al-
together....
Thcrefore, by refusing to place this Territory under the
Trusteeship System, the Union of South Africa is going back
on both principles recognized by the Covenant of the League
of Nations: first, trusteeship of an international body; second,
supervisory control of an international body." (G.A., O.R.,
Second Sess., Vol. 1, 105th Plenary Meeting, I Nov. 1947,
pp. GIS-6x9.)
PHILIPPINE KEPUBLIC
Fourth Committee
(i) GenernlRomulo: "The Union of South Africa had contended
that it had obtained its pourers from the League of Nations,
but it had forgotten the new obligations it had assumed under
the Charter. Chapter XI of the Charter contained a declaration
which applied to al1 the Non-Self-Governing Territories,
whether mandated or not. That declaration embodied obli-
gations which far exceeded those of the mandate system. The
resolution of the Union Parliament implied that these obli-
gations would be fulfilled by the submission of information."
(G.A., O.R., SecondSess., Fourth Comm., 31st Meeting. 25Sep.
'947, P. 7.)
(ii) General Romulo: "While supporting the draft resolution
submitted by the representative of India, [he] could not280 SOUTH WEST AFRICA

subscribe to the fifth paragraph of that proposal, tothe effect
that South West Africa was 'at presentutside the control and
supervision of the United Nations'. Chapter XI of the Charter
applied to all the Non-Self-Goveming Temtories. ..
According to Article 103 of the Charter, obligations under
the present Charter superseded otherintemational 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 remained outside the trusteeship system."
(C.A.,O.R. ,econdSess., FourthComm.,39th Meeting, 8 Oct.
19478P. 573
UNION OF SOUTH AFRICA
Fourth Committee

(i)Africa, that Governmcnt [of the Union of South Africa] would
maintain the status quoin the spirit of the Mandate. It would
not submit a trusteeship agreement, but would traiismit
information annually. Information relating to r946 was now
in the hands of the Secretaq-General." (C.A.,O.R. ,econd
Sess.,FourthComm.,31st Meeting, 25 Sep. 1947.p. 4.)
(ii) Mr. Lawrence: "In reply to the request made by the Danish
representative at the thirty-first meeting regarding clarification
of document A/334. Mr. Lawrence stated that the Ilandate
gave certain powers and imposed certain obligations. The
Govemment of the Union of South Africa had full powers of
administration over South West Africa, and it proposed to
continue to exercise them, just as it would continue to fulfil its
obligations under the Mandate to promote the moral and
material well-being of the population and to advance social
progress. The Union of South Africa did not claim that South
West Africa was a colony, but it was wiiiing to submit annual
reports like those required for the Non-Self-Governing Terri-
. toThe right to petition had ceased to exist with the disappear-
ance of the League of Nations, the autborityto which petitions
could be addressed. In the absence of a tmsteeship agreement,
the United Nations had no jurisdiction over South West Africa
and therefore no right to receive petitions."A.,O.R. Second
Sess.,Foz~rthComm3 .,3rd Meeting,27Sep. 1947,pp. 15-16.)

Plenarv
Mr. Lawrence: "In addition, the Government of the Union of
South Africa has expressed its readiness to submit annual
reports for the information of the United Nations. That under-
taking stands.
Although these reports.ifaccepted, will be rendered on the
in respect of this Temtory, 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 Tcrritoriesunder
Article 73 e of the Charter." (G.A.O.R. ,econdSess.,Vol. 1,
105th Plenary AleetingINov. 1947,pp. 632.633,) COUNTER-MEMOR IFLSOUTH AFRICA 281

UNION OF SOVIET SOCIALIST REPUBLICÇ

Plenary .
MT. Stein: "It is also known that the South African Govem-
ment refused to comply with this recommendation [to submit
a trusteeship agreement] and set up an absurd juridical status
for South West Africa which consisted in the administration
of South West Africa being camed 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. reference is made
to this system in order to conceal the actual annexation of
South West Africa." (C.A., O.R., SecondSess., Vol. 1, 105th
Plenary Meeting, I Xov. 1947,p. 612.)
THE UNITED STATES OF AMERICA
Fourth Committee
Mr. Dulles: "The Union of South Africa had no legal title to the
territory at present,because its only title was a hlandatory
under the League of Nations." (G.A.,O.R.,SecondSess., Fourth
Comns.,38th Meeting. 7 Oct. 1947.p. 50.)

Tmsteeship Council
Mr. Gerzg:"It was said here earlier this afternoon, and 1did not
hear any member object, that while we al1hope-my delegation
as much as any delegation feelsthat way-that there will be a
trusteeship agreement for this territory. we do not, in the
absence of a tmsteeship agreement. have supervisos. functions
that we do have supervisory functions to ensure that the Union
Government discharges its duties under the present mandate,
admitting that it exist." (T.C.. O.R.. SecondSess., First Part,
15th Meeting,12 Dec. 1947,p. 505.)

URUGUAY
Fourth Committee
(i) Mr. -4rrosa: "The duty to submit tmsteeship agreements was
not only a moral one. Article 80, paragraph 2,of the Charter
permitted no delay on the part of the Mandatory, Powers. At
a time when only two classes of dependent territones remained
in existence, the Non-Self-Governing Territories and the Tmst
Territones, South West Africa's position had clearly become
anomalous." (G.A., O.R.. Second Sess., Fourth Comm., 33rd
Meeting, 27 Sep. 1947,p. 14.)
(ii) Mr. Arrosa: "His ctelegation was of the opinion that since
the mandate system was defunct and South ,West Africa
was neither independent nor a colony, the Unlon of S?uth
Africa wasunder an obligation to place it under the international
trusteeship system." (G.A.,O.R., SecondSess., ForcrthComm.,
40th Meeting, g Oct. 1947.p. 60.)
Plenary
Mr. Arrosa: "We maintain once more that it is,impossible to
conceive of a mandate continuing, even only in spirit, now
that the body which granted it, the League of Nations, has282 SOUTH WEST AFRICA

ceased to exist. There is here a clear anomaly, for.the Territory
in questionis neither independent nor a colony.
The international system now in force takes account of two
classes of dependent temtories only: those caUed by Chapter
XI of the Charter 'non-self-governing', and those placed under
the Trusteeship System in accordance with Chapters XII and
XIII. There is no third category or class of dependent tem-
tories." (C.A.,O.R., SecondSess., Vol. 1, 105th Plenary Meeting,
I Nov. 1947. p. 615.)

'948
BELGIUM
Fourth Committee
MY. Ryckmans: "Under the Mandate System, South West Africa
had been administered under a C Mandate, and it had always
been understood that the Territorv would eventuallv be
incorporated in the Union of South hica a.
On the other hand, [he] felt bound to draw the attention
of the South African representative and the Committee to the
terms of Article 80, which provided that nothing in Chapter XII
of the Charter should he 'construed in or of itself to alter in any
manner the rights whatsoever of any States or any peoples.. .'.
That included the people of South West Africa, who, having
had the benefit of international supervision under the Mandate
System, could not be deprived of that right." (C.A., O.R.,
Third Sess., Part 1,FourthComm.,79th Meeting, 12 Nov. 1948,
PP 325-326,)
CHINA
Fourth Committee
Mr. Liu-Chieh: "It was tme that, as no trusteeship agreement
had been concluded for South West Africa. the United Nations
could iiot intervene or exercise its power of supervision in
regard to thatTerritory. But paragraph 2 of Article 80 imposed
an obligation to conclude such an agreement without delay."
(G.A.,O.R., Third Sess., Part 1,FourthComm., 76th Meeting,
g Nov. 1948, p. 296.)
COSTA RICA
Fourth Comrnittee

Mrhands were tied by the Mandate. It had not been a party to
the mandate agreement, and could not therefore be obliged
to act in accordance with its provisions. Indeed, the Union
of South Africa itself did not consider that the Mandate was
still in existence. since it had stated that it would administer
the Territory ofSouth 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 witli the
League, and there had been no provision whereby the United
Nations became a party to the Mandate." (C.A., O.R., Third
Sess.. Part I, Fourth Comm., 8znd Meeting, 17 Nov. 1948.
P. 365.) COUNTER-MEMORIALOF SOUTH AFRICA ~83

CUBA

Fourth Committee
Mr. PérezCisneros: "In his opinion, however, the revised joint
resolution did not make it clear that the United Nations had
assnrned the League of Nations' responsibility in relation to
South West Africa, the only Mandated Territory not yet
placed under the Trusteeship System. ... It should be clearly
stated also that the reports were sent to the United Nations so
that the Organization could exercise its functions of control
and supervision, in the same manner as would have been done
by the League of Nations. .." (C.A.,O.R., Third Sess., Part 1,
FourlhComm..8znd Meeting, 17Nov. 1948, p. 356.)

FRANCE
Fourth Committee
Mr.Garreau : "The French delegatiou had frequently had occasion
to recaUthat the Tmsteeship 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 characteristic differences. . ..
The South African Goverument had on several occasions
expressed its desire to administer the Territory of South West
Africa in the spirit of the Covenant. It accepted the moral
obligation of ensuring the weU-being and the development
of the population. leading it in due course to autonomy and
ultimately to independence." (G.A., O.R., Third Sess., Part I,
FourthComm.,79th Meeting. 12 Nov. 1948, pp. 322, 324.)

INDIA
Fourth Cornmittee
Mrs. Pandit: "The provisions of Article 80 of the Charter, safe-
guarding the existingrights of the people of South West Africa
until a Tmsteeshi~ Ameement had h~e~ concluded. had to be
rccoynizc<l.Onc of thosc rigtiti, under tlic mandate syîteni. Iiad
hecii the t:xaniination,by thc I'criiiaiicnt \landntej Comriiisjion.
of annual reports submitted by the Union Government on the
administration of the Territory of South West Africa. A
representative of the Union Governrnent had been personally
present for interrogation. That right could not be extinguished
merely because the Permanent Mandates Commission had

ceased to exist." (C.A.. O.R.. ThirdSess.,Part 1, FourthComm.,
81st Meeting, 16 Nov. 1948, p. 352.) 1

' "If is respectfully submitted that the only respect in whieh the position has
changed [as a result of the dissolution of the Leaguel is th6tof the Jlanaate
and the first portion of Arti7lof the Mandate have become incapable of being
exactly the sameasthey were before. The result is that the mandatory i':not obliged
to submit an annual report under Artic6eand that it cannot rnodify the teimî of
the Mandate at al1because the procedure by which it could have modified the teinls284 SOUTH'WEST AFRICA

UNION OF SOVIET SOCIALIST REPUBLICS
Tmteeship Council
(i) Mr. Tsarapkin: ". . . his delegation held that the Trusteeship
Councilcould not consider the report submitted by the Govern-
ment of the Union of South Africa, because the status of the
Territory was at present undetermined. While it waç true that
the Union of South Africahad declared that it would administer
the Temtory 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 Commissionno longer
of that Territory by the Union of South Africa." (T.C.,O.R.,ion
Third Sess..31st Meeting. 23 July 1948, p. 406.)
(ii) Mr. Tsarafikin: "He was of the opinion that a report on the
Territory of South West Africa could be considered only after
this Territory is included in the Trusteeship System and a
Tmsteeship Agreement is approved by theGenerd Assembly .. .
He considered that there exist only two alternatives to.deal
with the former Afandated Temtory of South West Afnca-
either this Territory should become an independent State or
should be included in the Trusteeship System ..." (T.C.,
O.R., ThirdSess., 41st Meeting, 4 Aug. 1948, p. j37.)
UNITED KINGDOM
Trusteeship Council
Sir Alun Burns: "The Council had been asked to consido the
report on the administration of South West Africa simply
because that Territory \vas formerly under mandate, and the
General Assembly hoped soon to seeit placed under the Tmstee-
ship 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 take any particular course
of action on the bais of the Council's report." (T.C., O.R..
ThirdSess., 41st Meeting, 4 Aug. 1948,p. 531.)
URUGUAY
Fourtli Committee
Mr. Gerona: ". . . pointed out that the obligation to send
annual report on the administration of mandated terntones
had been imposed on every Mandatory Power by the provision
of Article zz, paragraph 7, of the Covenant of the League of
Nat.4rticle So of the United Nations Charter provided. in con-
nection with the Trusteeship Agreements, that ...
That provision of the Charter clearly safeguarded the nghts
of indigenous populations and imposed on the Administering
Anthorities the duty of reporting progress and of communi-

of the Mandate hasceasedto beapplicable." ("\Vritten statement of the Govern-
ments. Documcnis, p. 148.)tiStotus 01South lVcrt Africa, PleodPlgs, Oral Argu- COUNTER-MEMORIAL OF SOUTH AFRICA 285

catine to the international communitv how they were fulfilling -
their'obligations.
It could be maintained that since the organ which was to
receive that information, namely, the Council of the League of
Nations, was no longer in existence, the Mandatory Power was
autornaticaily relieved of its obligation to report progress. The
Councilhad studied the reports in its capacity asan organ of the
international communitv: it acted as a CO-ordinatinecentre for
the other States conceGed, Le., members of the {vilized and
organized international collectivity. The dissolution of the
League of Nations meant the disappearance ofonly the common
CO-ordinatingcentre. Rut that CO-ordinatingcentre was once
.. moreinexistence:it wastheUnited Nations, and it was through
the oreanization that the Union of South Africa should fulfil
its~bli'~ationstwards the international community and give an
account of its administration." (G.A.. O.R..ThirdSess., Part I,
FourlhComm.,78th Meeting, II NOV. 1948,pp. 311-312.)

1949
YBRAZIL

Fourth Cornmittee
Mr. d'Aquino:"South West Africa, however, was not a sovereign
State, but a territory placed under the Mandate System of the
League of Nations and, consequently..was under the supervision
of the community of Nations, namely, the General Assembly."
(G?A.. O.R:, Fourth Sess., Fourth Comm.. 13znd Meeting,
22 NOV.1949, pp. 223-224.) '.
. ;CANA.A . . , , . ,
, Fourth Committee
MI. Blais: "The canadian delegition. 'was submitting that
amendment ['Expresses regret that the Government of the
', . Union of South,Africa has not continued ... to submit reports
on its administration of the Tenitory of South West Afncafor
" , the information ofthe United Nations'] because the use of the
word 'repudiated' in the Indian text gave the impression t-t
the Union Govemment was under a legal obligation ta submit
information, which was not the case." (G.A., O.R., Fourth
Sess., FourthComm.,139th Meeting. 28 Nov. 1949,p. 268.)
CUBA . .
FouAh Committee

, Mr. Pire2 Cisneros: "The prestige of the'united Nations was
. at stake just as that of the Leagueof Nations might have been
' in similar circumstancesi the rights and duties of the United
Nations were the same aç those of the League of Nations for
bath organizations represented the international community.
The substance of the question was clear: although there wa.5
no Tmsteeship Agreement in respect of South West Afri?,
there remained the old Mandate which provided for a certain
Power concerned could not denounce them by unilateralhe
action. Under the terms of the Mandate. the Union of South286 SOUTH WEST AFKlCA

' Africa had been required ta transmit information ta the League
of Xations, because it was theintemationacommunity's duty
to be informed how the temtories itntrusted to the adminis-
tration of some countries werebeing governed. That information
was to have been exarnined by the intemational community;
the populations concerned had had the right to send petitions;
'essential human right' by the General Assembly at its third
session... as a result of a proposal made by the Cuban and
'French delegations....
No Trusteeshi 'Agreement had in fact been concluded in
respect of sout: West Africa. Attention .should be drawn.
however, to Article80 of the Charter which explicitly s...ed
It was therefore clear that the situation whch had prevailed
under the Mandate System should not be changed in-the case
clearlvicom~romised when the international conccommunity
cesed to receive informationun Iioivthey were beingadminG-
tered, and when the peo le tlieni~elvescould no longer exercise
tlieir ridit uf netitiE.."AO.;. .ourlhSPSS F.ourthComm..
130th Meeting,21 NOV: 1~49,p. 216.)
GREECE
Plenary
MY.Lely: "He recalled that at the third session of the General
Assembly the representative of the Union of South Africa had
stated that, when the Government of the Union of South
Africa had given an assurance that it would send information
on the Territory, it had made a specific reservation that the
sending of such information would imply no commitment forthe
Nations.d wouldnot beindicativeof accountability.t.. United
[He] felt that thatstatement spoke for itself. The sending
of information was a voluntary act on the art of the Union
Govemment. If that was so, and he beFeveB that it waç, then
the Union Govemment had not repudiated any revious
assurance."(G.A.,O.R., FourthSess.. 269th Plenary keeting,
6 Dec. 1949, p. 530.)
UNITED KINGDOM
Fourth Committee
Sir TerenceShone: "It could not be said that the Govemment
of the Union of South Africa had repudiated its previous
assurance since it had complete liberty to decide whether or
not to transmit information." (G.A.,O.R., FourSess.Fozrrth
Comm.,135th Meeting, 24 Nov. 1949. p. 247.) COUNTER-MEMORIALOF SOUTE AERICA

AnnexB

[See Annex A totheMemmi1,9.zoo.]

AnnexC

MANDAT EORGERMA SOUTH-WES AFRICA

[See Annex B to theMemwialzor.]$. BOOK~III

CHAPTER 1

GEOGRAPILICAF LEATURESOF SOUTH WEST AFRICA
A. Introductory

r. A brief survey of the main geographical features of South West
Africais. in Respondent's submission,essential for a proper consideration
of the issues before the Court.
The natural environment of a country not only regulates the size,
character and distribution of its population. but also constitutes a major
factor in determining the potential pattern and rate of its development.
In the context of the present case, however, it is also tme that geogra-
phical factors andnatural resources are relevant and assume importance
they constitute obstacles to be overcome in developing the Territory.at
This survey will indicate that the natural enwonment ofSouth West
Africa is to a large extent unfavourable for man's purposes and that
it displaysreat &versity, resulting in special problems of administration
and development. The adverse physical environment places a premium
on the role of man inrealizing the limited and diverse natural potential
of the Temtory.
Consequently the two factors of natural environment and human
resources, as well astheir inter-relationship, are basic to the interpreta-
tion of conditions and achievements in South West Africa, and cardinal
the Temtory.ation of any policy of administration and development in

B. Location

2. The Territory of South West Africa lies along the Atlantic sea-
board in the south-western portion of Africa, as illustrated by Ma1,
on page zgo.
The Territory stretches fromthe southern border of Angola to
Republic of South Afnca; and from the Atlantic Ocean in the west tort
the western border of Bechuanaland in the east. The Tropic of Capricom.
divides the Territory into two nearly equal parts. The northem half of
South West Africa thereforefalls in what is generaiiy knoas Tropical
Afnca.

II. BORDERS

3. As in the case of many other territories in Africa, the land bound-
aries of South West Africa were originally drawn by statesmen who
not only had little knowledge of localopographical and ethnic condi-z9° SOUTH WEST AFRICA

tions, but were mainly yiiled by considrrations other than local interests
and problems of administration. 'i'liiisfor instance. tlie northern
boun<larv intersects the ares inhdhited bc Ovamho trilics so that tlirre
tribes fdl into Angola, north of.the bouhdary, one tribe is cut in two,
while the remainder fall into South West Africa. A similar position
obtains in the case of the tribes livine on the Okavaneo River. In such
circumstances effective boundary coEtrol, e.g., to pr&ent the spread
of human or animal diseases, becomes a virtual impossibiity.

The Eastern Caprivi Zipfel presents the same problems arising from
the fact that the political boundaries bear no relation to the borders of
areas inhabited by particular ethnic groups. In addition its inclusion in
the Temtory adds to the diversity of the population by bringing portions
of tribes living in Rhodesia and Bechuanaland into a political unit with
the other inhabitants of South West Africa,with whom they have no
ethnic orother ties at ail, and from whom they are, forpractical purposes,
almost completely isolated geographically. This factor creates special
problems of administration, which will be dealt with later. COUNTER-MEMORIAL OF SOUTH AFRICA 291

m. m.
\ -.-... ..

.o.-

22-

ri

PARATIVE STUW

SOUTH WEST

.>S. 8.'.
Mop 2
OP-"..
". u. 16. 1.. .>- .a.
. ~

C. Area

4. south ~est.~frica has an area of 824.26 s9. km. (318,2 6q1miles)
including thearea of Walvis Bay (measiiring 1,124 sq. km. or 434 sq:
miles) which, although art of the Republic of South Africa, is for
convenienceadministere f as part of South IVest Africal. Map 2,above,

shows the relative extent of the Temtory.
The Territory is nearly four times the size of the United Kingdom
and nearly seven and a half times as large as Liberia. On the other
hand, it has less than half the population of Liberia z. We the area
of South West Africais virtually the same as that of Nigeria, the latter

1 Vide British Letters Patent dated 14Dec. 1878. in Brilish and~ovei~" Slale
Papavs 1878.1879 Vol. LXX, pp. 495-496 f,r the British annexation of WalvisBay.
By Proc. No. 184 of 1884(Cape of Good Hope), 7 Aug. 1884. in The Cnps ofGood
Hope Gouevnmmt Gazette,No. 6519(8Aug. 1884)p. .I.itwas annexed to the Colony
of the Cape of Good Hope. Itsadministration aspart of South West Africa was
provided for by sec. I of Act No. 24 of ,922and Proc. No. 145of 1922(S.A.),
II Sep. i9zz. in The Laws of Soulh lVcst Africo 1915-1922 p,.20 and pp. 56-57.
* The population of Liberiaas at 1956 was given as 1,250,00 in0 U.N.DC~G-
graphic Ycarbook1960. p. 99.292 SOUTH WEST AFRICA

MAJOR TOPOGRAPHIC

REGIONS

100 500 100 200
-
KICrnrtrts.

carries a population 60 times larger than that of South West Africa '.
The Temtory constitutes nearly 3 per cent. of the total area of Africa,
while its population of approximately half a million amounts to only
about 0.2percent. of the total population of Africa. With the except!on
of Bechuanaland, which adjoins the Territory, it ha thelowestpopulation
density in Africa south of the Sahara2, and one of the lowest density

figuresin the world ).

The population of Nigeria as at 1959 was given as 33,663.wo in U.N. Dcno-
graphic Ycarbook 1960, p.IW.
2 Both have population densities of leçs than oneperson per square kilometre,

but the density in Bechuanaland is slightly lower than that of South West Africa-
vid1 The onlv coiintries other than South West Africa and Bechuanaland which.
, ~~-~ ~ ~ ~ ~~-~ ~~
according to the figures published in U.S. Sl~tirlicalYeorbook 1962,pp. 21-39.
have population densitiesof less than oneperaon pcr square kilometre. are Libya.
Mauritania. French Southern and Antaretic Territories.a small part of Spanish
North Africa. Spanish Sahara. Tristan da Cunha, Greenland. French Guiana. the
Falkland Islands.Mon~olia, and the Svalbard and Jan Mayen Island (inhabitedonly
during the winter season). Forpurposes of cornparison, the following population
densities inersons per square kilometre have heen extracted from the same source:
Liberia, iz;Ethiopia. 17; United States of America, zo; The Netherlandç. 346. COUNTER-MEMORIAL OF SOUTH AFRlCA 293

From north to south the Territory measures about 1.280 km. (800
miles) and from west to east an average distance of 720 km. (350miles),
which gives it an oblong shape with nearly 80 per cent. of thepopulation
concentrated in the northem half of the Territory, that is, north of a
line taken just north of Walvis Bay.

D. Topography

5. Topographically, the Territory can be divided into three separate
regions, viz., the Namib, tlie Central Plateau and the Kalahari, as wiU
appear from Map 3, on page zgz.
6. The western marginal area between the escarpment and the coast
is known as the Namib.It is an extremely and and desolate desert
region stretching dong the entire coast-line of the Territory and rising
rapidly but evenly inland. The lateral width of the area varies from 80
to 130km. (50to 80miles), and it constitutes more than 15percent. of the
total land area of South West Africa. It consists mainly of vast plains
and seas of constantly moving sand, with occasional low, scattered
mountains. Practically the whole population of this region, being less
than 6 per cent. of the entire population of South West Africa, is con-
centrated in four coastal urban areas '.
7. The CentralPlateau is the area lying to the east of the Namib.
It also stretches al1 the way from south to north. It varies in altitude
between 1,000 and 2,000 m. (3,280 to 6,560 ft.) and in itself offers a
diversified landscape of rugged mountains, rocky outcrops, sand-filled
valleys and softly undulating plains. It covers slightly more than 50
per cent. of the land area of the Territory.
8. Finally, the Kalahari covers the eastern, north-eastern and north-
ern areas of South West Afnca. The dominant feature,of this region 1s
its thick cover of terrestrial sands and limestones. This region 1soften
regarded as desert, but, as the rainfaU of the northern Kalahari exceeds
600 mm. (24 in.), the Kalahari hardly falls into the same category as
the Sahara orthe Namib.
In appearance it is mainly an area of level monotonous plains covered
with sand dunes, which. in contrast with those of the Namib, have been
settled bv veeetation. The main Droblem confrontine ~>,s.nt and
future exploit~ion is not an inadecfiiatc tot:il aniount uf rainfail or ;i
spdrse \~~~gctâtion-i~~dced,the K:ilnlinri ofiers considerable potcntial
forlarcc-stock rc:irirle-biit ilnctho r:iinf;ilSS:CDa\v<i\.ra~iill\' thr011~h
the t&k, loose sana and the underlying poroÛs iiméstoie, ihere is'a
near total lack of surface water, while ground water is sometimes so
deeJfowever. by way of contrast, the eastern section of the Caprivi Çtnp,
which stretches out to the Zambesi and Linyanti (known in its higher
reaches as the Kwando and the Chobe) Rivers. exhibits totallv different
conditions. 13ecause of tliiextr\.niely low gr:iclicnts there, iicarly one-
quart" of the region icanniially floodeclduring tlitpriod of zkflow.
Floods alsu occiir anniiall\.in the eastvrn Dart of O\'ambolan~. \rhicIi is
generaliy better watered than the rest of thk area.

' Swakoprnund, Walvis Ray,Luderitz and Oranjemund.294 ' SOUTH WEST AFRICA

E. Climate

g. The climate of any particular area is composed of various elements
such as temperature, rainfall, prevailing winds, etc. Of these, rainfall is
the most important climatic element in affecting life and economic
development in the Temtory, since it provides the key to agricultural
potential. Respondent consequently proposes dealing separately with
the rainfaü of the Temtory, before summarizing its various climatic
regions with referencealso to other climatic elements.

AVERAGE ANNUAL RAINFAU

linMm)

400 -sm mm. p..
100 500 1002W XD -6OOmniPa
-
KIIO~~~PCS. na. tm eco mm PO.
1

II. RAINFALL

IO. To assess the influence of rainfall properly. three aspects mut
be taken into account, namely the average annual amount of rainfall,
its seasonal distribution,and its efectiveness. COUNTER~MEMORIALOF SOUTH AFRICA 293

(a) ~;&e Annual Rainfall

II.The average annual rainfau ap ars from Map 4, on page 294.
It will be seen that practically goe of the coastal region receives
an average annual rainfall of less than 50 (2.in.), while the north-
400 mm. pa(16in.). Thus the average annud rainfail over the.Temitory
creates conditions varying from extreme aridity to suh-humidity. The
rainfall over the plateauarea improves steadily from south-west to
north-east. It is only dong the Okavango River in the north and in the
Caprivi Zipfel that rainfall conditions400 mm. (24 in.)-may be
regarded as favourable for more intensivean occupation.

In terms of landarea. only 32.1 per cent. of the Territory receives an
average annual rainfall of more than qoo mm. (16 in.), which can be
regarded as tlie absolute lower limit for dry-land agriculture in warm-
temperate summer rainfall regions sucb as South West Africa.
@) Seasonal Distribution of Rainfall

12. On the whole, South West Africa may be regarded asa summer
rainfallegion. Over the greater part of the intenor plateau, more thanSOUTH WEST AFRICA COUNTER-MEMORIAL OF SOUTH AFRICA 297

70percent. of the annual rainfall occurs between the months of October
and March-e.g., Windhoek 85.9 percent. and Runtu 93 per cent. 1The
length of the rainy season varies in different parts of the Territory.
The northern and north-eastem areas are favoured not only by a
larger annual amount of precipitation, but also by a rainy season of
longer duration than the rest of the Territory. As is shown in Map 5,
on page 295, if all months with an averagerainfallesceeding 50mm. are
regarded as part of the rainy season, only the area to the north-east
ofa linecorresponding roughly with the 400 mm. line on Map 4, on page
294. has a rainy season of 4 months or more. Over the central highlands
the rainy season varies between two and four months and it then gradu-
ally decreases towards the south-east.

(c) Efectiveness of Rainlall

13. In common with other dry regions of the earth, the effectiveness
of the SouthWest African raiiifall is even less than that indicated by the
average annual amount. This can be attributed to two factors, viz.,
(i)high variability of rainfall, and
(ii) high evapration.

(i)Variability
14. In South West Africa the rainfall is extremely variable fromyear
to year, and differs from place to place so that the average can never
be depended upon. Hence the Long Term Ag~icultural Policy Commis-
sion (1949)stated with regard to South West Africa:
"The Territory has . . .no 'normal' rainfali as expressed by the
mean annual amount of precipitation. What must be accepted in
this connection is that drought and flood are normalities ... 2."
The table on page 296 shows that not only is there agreater tendency
towards "normality" in the incidence of rainfall as one moves to areas
of higher rainfall-that is, the departures from the "normal" are strik-
ingly larger in the cases of Luderitz and Keetmanshoop (where the
average rainfall is relatively low) than in Ondanya and Kuntu (where
the average rainfall is relatively higher)-but also that where the varia-
tions are largest they tend to be strongly on the side of sub-normality
(droughts and serious droughts).

15. The regional distribution of rainfall variability is illustrated by
Map 6, on page 298. Variability may be defined as the deviation from
the mean annual rainfall corn uted from a fairly large number of years
of observation, and is usual y' expressed as a percentage. Thus, the
percentual average deviation from the average annual rainfall of rainy
seasons during the period 1940 to 1960, was calculated for 27 stations
well distributed over the Territory. Subsequently. lines of equal varia-
bility weredrawn by means of interpolation at IO percent. intervals. A
pattern identical to that of Map 4. on page 294.and hfap 5,onpage 295,
emerges, namely a gradua1 decrease in variability from south-west 'O
north-east. Along the Coastline the variability exceeds 70 percent. while
it varies between 50 per cent. and 30 per cent. in the central part of the
Territory anddrops below 30 percent. in the north-east. Hence the latter
As measured over periods of20and igyears respectively.
Reportof theLong Ter>*AgriculturalPolicyCommission (S.W.A.). p.8.298 SOUTH WEST AFRlCA

, .

-. . - - - - - .:
:-.WindMk ------A
VARIABILITY

@J ta - 70.1.
100500 100 200

are:i ha tliecomhir~e<ladvaiitages of a 1iiglit.rannual amourit of raiiifall.
a loiigrr raiiiv seaioii aiiiI jmallcr ~sriabilit\r of rainfall.
(ü) Evafioration .

16. The effectiveness of rainfall in South West Africa, especially in
the plateau areas, is further restricted by an extremely high rate of
evaporation which is vastly in excess of the rainfall ', and which is
attributable to the fairly high day temperatures. the low humidity and
a low air pressure owing to the high altitude.
The Territory being a summer rainfall region, the season of highest

rainfall coincides with the season of maximum evaporation, with the
result that dry-land cultivation is possible practically only in those
areas where the annual rainfall exceeds 400 mm.

III. CLIMATIC REGIOSS

17. As indicated above, rainfall is the main factor distinguishing
between various climatic regions in South West Africa. Taking into

' Ry "rate of evaporation" is mesnt the rate at which water cvaporates from an
open surface. As in the caîe ofrainfiill, evaporationismeasurïd in millimetres or
inches. Thus, for oxarnple. in Windhoek in Jûnuary the average rainfall is76.7 mm.,
whereaç the average evaporation from an opensurface is270 mm. COUNTER-MEMORIAI.OF SOUTH AFRICA 299

. .

account the various aspects relating ta the rainfali'mentioned above,
is weli as ali other climatic elements, three'basic climatic types may
e differentiated, viz., , .
,(a) cool deserts, occupying approxim~tely 17 per cent. of theTemtory's
area:
(b) warm deserts, occupying approximately 36per cent. of the Territory's
area;
(c) semi-deserts, occupying approximately 48 per cent. of theTemtory's
area.
These divisions, each with their subdivisions, are indicated on Map 7,
above.

18. Themain climaticfeatures ofeachof the regions depicted on Map 7,
above, are as foilows 1:
(a) Th CoolDeserts
(i) The Cool Litto7al Desert O/ the Namib CoastalRegion (indicated
onMafi 7,aboue,asA I)

This region, which comprises the whole coastal area up to 50 km.
inland, is characterized by mild temperatures throughout the year, a
virtual absence of rain, and frequent fog.

' The terms uçedto classify temperatures aredefinedasfal1ows:Cool :OC.to IO.C
Mild: roOC. tozooC.This class is furtlicr divided into Cool-temperatetoo1g0C.)
and Warm-temperaie (159C. to zoOC.); Warm: 20QC.to z7DC.; Hot: above270C.300 SOUTH WEST AFRICA

(ii) The Cool Desert of the Inner Southern Namib and the Adjacent
Escarpment (indicatedoniMap7,onfi. 299,as A 2)
Mild temperatures are also experienced by this region, but the rain-
fa11is siightly higher (100-zoo mm.) and the aspect less barren than in
the true Namib.
(iii)he CoolDesertof theSouth-WesternEscarfiment(indicatedonMafi

7, onp.299, asA 3)
This region has the lowest winter temperature in the Temtory and
at a station like Aus snow is recorded approximately once in five years.
The amount of rainfaU is the same as that of the previous region, but
no pronounced summer maximum is registered.
(b) The Warnt Deserts.
(i) The Warnz Desert of the Kaokoveld a~zd the Northern Inner
Namib (indicatedon Mafi 7, on @. 299,as B I a)
This area is essentially a trksitional region with a meagre, unreliable
summerrainfaU whichincreases rauidlv eastward. Summer temmratures
are warm to hot and winter temieraiures mild.
(ii) The Warm Desert oj Namaland (indicated on Mafi 7,on fi.299,
as BI b)

Namaland has warm to hot summers and cool-temperate winters
with an unreliable summer rainfall ranging between xoo and 300 mm.
As the rainfall is sufficient to support arse vegetation of small desert
shmb and grass, the region can be utilized for extensive small stock
farming '.
(iii) The Transitional Desert of the Eastern Kaokoveld (indicutcd on
Mafi7, Onfi. 29% as B 3)
Temperature conditions in the Eastern Kaokoveld are subtropical.
with the month of maximum temperature in the early summer. As
temperatures are fairly high, the rainfall (approximately 300 mm.) 1s
still too meagre to allowthe area to be clasasdsemi-desert.
(iv) The Transitional Desert of the CentralOrangeRiver Gorge(indi-
catedonMap 7,on p.299, as B2)

This region. which experiences what is probahly the highest summer
temperatures in the Territory, has no pronounced summer maximum
rainfall,though the total amount is only slightly in excess of 50 mm.
(c)TheSemi-Deserts
(i) The Senti-Desert oj Damaraland (indicalcd on Mafi 7, on p. 299,
as C I)
Damaraland has warm summers and cool-temperate winters *th a
summer rainfall varying between 300 and 450 mm. As the rainfall
reliability is higher and the duration of the rainy seaçon longer than
in the desert areas to the south, the vegetation has the character ofa
thorn Savannah and supports extensive large stock farming.
(ii) The CoolSerizi-Descrloj the CentralHigMands(indicated onAfap 7,
on p.299, asC 2)

Owing to their altitude, the highlands immediately to the south and
east of Windhoek experience fairly low summer temperatures, which

'As to themeaning of extensive stock farming. vide fotopara. jr, infra. COUNTER-MEMOR IFLSOUTH AFRICA 301

Bowerthe average annual temperature to less than the limit value of
18OC.In most other respects, the region forms a continuation of the
semi-desert of Damaraland.
(i) The Warm North and North-EasternSubtropical Semi-Desert(in-
dicatedon Map 7, on p. 299. as C 3)

This region is favoured by the highest annual rainfall (500.600 mm.),
:the smaiiest variability of rainfall (less than 30 per cent.) and a rainy
:jeason of longer duratiou (4 to 5 months) than any other part of the
Temtory. Temperature conditions vary from warm to hot in early
.summer, when the highest temperatures are recorded, to warm-tem-
perate in \\inter, while the vegetation may be described as deciduous
:savannah.

F. Vegetation

19. The great diversity observed in the topographic and climatic
conditions is more or less paralleled by regiona diversity in vegetation
and soil. Thus, large areas of fairly dense vegetation are confîned to
the north and north-east of the Territory (the relatively favourable
Semi-Desert Region). On the other hand, the areas to the West of the
Escarpment are sa barren or so sparsely vegetated as to preclude any
.torm of agricultural exploitation whatsoever. In the central area the
vegetation changes gradually from an arid shrub steppe in the south
.to an open thorn savannah with grass and scattered trees towards the
north.

G. Natural Resources

20. Natural resources are defined as "those aspects of man's endow-
.ment and (physical) environment upon which people are dependent
for aid and su port "' Natural resources are essentially neutral
material, but tleir &&srnent should be conducted in terms of their
Ipotential human utilization.

II.WATER RESOURCES

21. Agricultural and industrial development in South West Africa
is seriously hampered by a severe lack of water resources. The effective-
ness of the low and unreliable rainfall is diminished by the high rate
of evaporation already mentioned 2. It is estimated that more than go
percent. of the average annual rainfallof the Territory is lost directly by
evaporation and indirectly through the transpiration of plants.ince the
major part of the balance of the rainfall precipitates over the north-
eastern sector of the Territory, where there is no surface drainage, it
follows that only a small fraction of the total rainfall of the Territory
isactuaUy available for utilization.

' James, P. E. and Jones, C. F. (eds.). AmericaGeography: Invenloryand
Prospec(1954). p227.
Vide para.16,supra. 302 SOUTH WEST AFRIC.A - ,--,

Surface Flow . ... . ..

22. Inland riuers.in South West Africa are al1 intermittent. Since
choked with erosional debris, there is a serious loss of;surface flow
through seepage. Actual flowis timited to a few short-lived streamfloods
during the, rainy season, leaving a dry, sandy river-bed during the rest
of the year. During the highest flood of the Swakop River (which'is a
typical South West'African inland river) recorded between 1946and 1956,.
the river'sflow was continuousfor only jz hours. The flood took only'
4 hours to reach its maximum flow of,294cub: m. per second' and dis-
charge was practicaily 'negligible during the last 30 hours of recorded'
flow. The Fish River in the south is the onlyriver with a fairly snb-.
. stantial numher of permanent pools dong its course and during good'
rainy seasons may have flowingwater for up to 4 months of the year.

23. Attention has been given to the constmction of surface storage
of stora~e dams for munici~al use have been constructed in the south.umber
so t1i:ifivetowiispreacntly augment tlicir watïr supplies from this source.
In 1q6.2n dnni \v.u completcd iiithe 1:ish lii\.cr, from whicli eventuallv
somé 2,500 ha. are to-be irrigated. However, serious difficulties a&
caused by the high silt content of flood.water, andJby the high rate of
evaporation. To ,limit evaporation, ,dams are const.mcted as deep as-
possible; and for the same reason water is sometimes even purposely
stored undm a sandy silt-bed and brought to the surface again by
pumping. when requiredfor use.
24. In the Native Reserve of Ovamboland, in the northern part of
the Territorv. where the rainfaii is normallv sufficient to fulfil the
requirementS of the inhabitants, the recurrent Periods of drought never-
theless make famine a real menace. To combat this problem the Admi-
nistration had ri or to 1060 caused nearlv IOO dam; of different tvoes
and si2t.s to bç.'construc&d. O\r,ing to thélo\vgradient and the litt;6lo-
gical n:~tiirçof the arca' most of thescdams hnd to bc esca\,nted irithe
shallow \rratcr clianncls. \r.here the!, ;ire filled durinr the oeriud of flood.
However, there is a limit to the dépth to which su& dais can be exca-
vated, because of the presence of a high table of nndergroundwater
which is unsuitable for human or animal consumotion bv reason of its
mineral content. \Vlierilarger danis are rcqiiired. ilte escivations ;ire en-
closed by circular eartlien embnnkments into whictittie wnter ispumped.
The I;ireest dam of tliis tvoe in O\.aint>olnridis lnrc,r tlinn most of the
municifil storage dams inthe Territory.
25. The only perennial rivers to be found in South West Africa are
exotic and, except for small sections, constitute part of the Territory's
boundaries. In the south the Orange River flows in a 1,000 m. gorge,
and offers only limited potential for imgational development. According
to the boundary delineation of the Treaty between Germany and Great
Britain in 1890, the southem boundary of the Territory follows the
northem bank of the Orange River, so that South West Africa has no

' r cub. m. per second equals 35.2 cusecs (cubic feet per second) o79z.000
gallThe surface material in Ovarnboland is sandy and porous to great depths, thus
precluding ardinary dam ~onstruction which needs a firm bedrock. COUNTER-MEMOR IF SOUTH AFRlCA 303:

:legalclaim to water from the river. Respondent has, however, accorded'
the same privilegesto riparian owners on the northem side of the river
as those-being held by the riparian owners in the Repuhlic itself '.Some
small-scale irrigation is accordingly taking place on the South West
African side of the river, while the Orange River water is also heing
utilized for diamond mining at the Oranjemund settlemeiit within the. . '
Territory. ...
Along the northem boundary of the Territory, two perennial rivers,
the Kunene and the .Okavango, offerthemost reliable and accessiblewater.
supplies in South West Africa, but there are a number of obstacles stilb
tohe overcome hefore the water of these rivers can-he utilized for irri-
gation by the Native peoples living in their vicinity. Thus, in the case:
of the Kunene, owing to the low gradient and brackish soils in Ovamho-!
land, irrigation will have to proceed with caution and the most suitable
crops and farming practices will have to he determined. hy experi-
mentation. Furthermore. as a result of the mgged and inhospitable.
gorge along which the river descends to the sea, utilization of its water,.
whether for irrigation purposes or for the generation of electric poweq,.
will reqnire detailed scientific s.rv.ys as well as considerable capital
an- qkill
The Okavango seems tO offer hetter potentialities for irrigation than:
theKunene. It has heen determined that from the best potential dam,
site in the Okavango some 50,ooo to 60,000 ha: could be imgated.
In this case problems concem the arousing of sufficient interest on the
part of the inhabitants of the Okavango area, and the fitting of an irri-
gation scheme into planned and ,CO-ordinateddevelopment-matters to,
he dealt with in appropriate parts of this Counter-Memorial.
The Linyanti and Zambesi Rivers are of importance only for the;'
eastem tipof the Caprivi Zipfel, where difficulties are occasioned hy
the swampy character of the' area; the presence of tsetse Ay, and the
lack of suitable dam sites.
UndergroundWater
26. Underground water cornes to the surface at spnngs and fountains'
in some places in South West Africa, and many of the towns andNative.
Settlements developed around the sites of perennial fountains. In ad-
dition, seepage water in river beds is utilized in someplacesfor domestic
pufposes and eyen for small-scale irrigation.
For the most part, however. underground water cannot be tapped
without making use of boreholes. In the central and extreme southem
parts of the Temtory, ground water is not stored readily and drilling
is often discouraging. Towards the east conditions are more favourable,.
some boreholes yielding up to 30,000 cuh. m. per day, but further on
eaçtwards the depth of the boreholes increases to approximately 300 m.,
which, together with a corresponding decline in the quality ofthe water,
make exploitation costs almost prohibitive.

Conclusion
27. From the foregoing it is apparent that the only considerahle
water potential js confined to the areas in the north and north-east of
the Temtory. The scarcity of water resources in the remainder of the

' Vide Act No. 54of ,956,sec. 174, in Slatuoffhc UnionofSoulh Africo1956.
Part II,Nos. 48-73, p1301. SOUTH WEST AFRICA
304

Temtory is a serious impediment to substantial industrial development,
and tends to restrict aaricultural activity in the maior p.rt .f the Ter-
ritory to livestock far6ing.

III. LAND RESOURCES

28. The land resources of any country depend basically on its climate,
venetation and soils. As some of these as~ects were discussed earlier.
th& exposition given here is largely an asséssment of tlieir si*ificance
with respect to agricultural development in South \Vest Africa.
The three major primas. indudries based on land resources are crop-
ping. stock farming and timber exploitation, and the Territory's poten-
tialitiesin respect of each willbe discussed in turn.
(a) Crofiping

29. As a result of the low and erratic rainfall, nomal dq-land crop-
ping ' may be practised over only 1.1 per cent. of the Territory's area;
possibilities for marginal and sub-marginal dry-land cropping exist over
IO per cent. and21 percent. of the arearespectively, leaving67.9percent.
of the country in which dry-land cropping is precluded3. Irrigation
potential is best in the north-eastern areas, which are already better off
than the rest of the Territory in respect ofrainfall; but these favourable
conditions are to a certain extent off-set by the low fertility of the
Kalahari sands. Over the rest of the Territory too the soi1is at best only
of moderate fertility. Since South West Africa is situated in the transi-
tional belt between the tropics and the temperate regions, temperature
conditions are not reaUy favourable for either tropical or temperate
crops.
@)StockFarming
30. Stock farming is the predominant type of land use in the Ter-
ritory. Environmental factors such as vegetation and water supplies lead
to a zonal distribution of stock farming in the Territos.-small stock
in the arid southern areas, mixed small and large stock in the central
areas, and large stock in the better watered northern and north-eastern
areas. These features cast an interesting light on some aspects of the
pre-colonial history of some of the major population groups, viz., the
Nama. the Herero, the Ovambo and the Okavango tribes: the agri-
cultural Ovambo and Okavango occupied the sub-tropical north: the
Nama, mainly interested in smnll stock, roamed over the arid steppes
of the south and also made use of the mixed grazing offeredby the
thom savanahs of the central areas; whereas the cattle-rearing Herero
invaded the same savannahs from the north and became engaged in
almost continuouswarfare with the Nama '.

yearly variation in yield relatively small and total crop failures virtually unknown.
qfarginal dvy-land croppingO :n account of a higher rainfall variability, crop
yieldsarenot only srnallerin quantity than in tcase of normaldry-land cropping,
but also liable to violent fluctuations. Total crop failures occurfrom time to time.
Sub-marginal dry-land cro$$ing:Both the amaunt and the relivbility of yrecipita-
tion are smaller than in thcase of mar"~nal dr,-land croA . ". Dr..vears do not
only result in crop failures, but preclude the paçsibility of cropping altogether
Vide Map 8 a. on p. 305.
' Vide Chaps. II and III,infra.COUNTER-MEI~IORIALOF SOUTH AFRICA 305

CROPPING POTENTIAL

SubrnarginaDryund cmppirg

NO Dryland cropping

LIVESTOCK
Carrying Capacity

Hoctoro par Largo

Stock Unit

10-15 OQbovo45 SOUTH WEST AERlCA
306

31. '~hegrazing areas in the Territoryhave an extremely low carrying
capacity as can be seen from klap 8 b, on page 305 '. The southem areas
support only one large-stock unit or six small-stock units on an area
of 30 to 45 ha.; in the central area the carrying capacity is approxi-
mately one large-stock unit to 10 ha.; while to the north the carrying
capacity increases to one large-stock unit per 8 ha. and probably one
large-stock unit per 6 ha. along the Okavango, Linyanti and Zambesi
Rivers. The low carrying capacity of the grazing is due chieAy ta the
sparseness of the vegetation as a result of the low rainfall. Because the
quality of natural grazing in summer rainfall areas decreases with
maturity, farmers experience great difficulty in providing adequate
grazing for tlieir stock in the spring and early summermonths just before
the advent of the rainy season. Moreover, grazing in the Territory gener-
ally suffers from a deficiency in phosphoms, and supplementary feeding
is consequently necessary.
(c) Timbw Exfiloitalion

32. The woodland vegetation of the north-eastem portion of the
Territory contains some species of trees that could be exploited com-
merciaüy. It is estimated that the area of exploitable woodland is zo.ooo
sq. km. in the Ovamboland and Okavango Native Reserves, 10,ooo sq.
km. in the unoccupied state land in the Grootfontein district, and
5,000 sq. km. in the.Eastem Caprivi Zipfel. Fire belts have had to be
cut to divide the forest areas into smaller units and thus to protect them
against kes, especially those lit by Bushmen in pursuit of game-a
frequent occurrence, e.g., in the Okavango. At present timber is being
supplied to the Tsumeh Mine, and two small saw milis are in operation
near Grootfontein, but exploitation is hampered by the absence of
adequate transport facilities in the uninhabited parts of the north-east
and the variety of species of ,timber occurring in these parts, which
necessitates selective exploitation and results in.higher costs of labour
and transportation.
(d) Conclusion
33. In Map 9, on page 307, the land resources of the Temtory are
depicted regionally in tems of areas of relatively similar agricultural

land use and ~otential-so-called amicultural re~ons. The uotential of
each of these ;egions in respect of-dry-land croiping, irrigation, stock
farmine and timber exploitation is set out in the table on page 308.
In Wew of the facis set out in the previous paragraphç, it is not
surprising thatthe greater part of the population of South West Africa
is to he found in the northern and north-eastern parts of the Temtory,
i.e., in the Ovamholand, Okavango and Eastern Caprivi Reserves. This

1 The following lirnit values are applied in describing the potential intensiveness
Classification of Southern Africa", in Thc South African GcagvnphicalJournal, Vol.nd

xxxv (1953)P~. 17):
Scmi-intcnsiuc: One large-stock unit t2-4ha.ss.
Exiensioe: One large-stock unit t4-8 ha.
Ultro-extcnriue: One large-stock unit to 8 ha. or more.
Onclarge stock unit equalsIcattle unit or5 sheep or goat units.
1 Having regard to the climatic features, soi1 fertility. availability of water for
irrigation and other relevant factors referred to above. COUNTER-MEMOR OIASOUTH AFRICA 307

AGRICULTURAL REGIONS

2. Lolga Steck Farming and Crcpin.
Rogi0,<m i(ii",*ld
3.NDlth-OSlbrg. Stock and
suamor$ncwping aogion
1. ultrm ortebngostodwgion
0,IoutnrD.smoroi.nd

--- .-,

W 500 100200
-
Kilomrtm

is. however, an aspect which will be dealt with more fuiiyin later parts
of this Counter-Memorial.

IV. MINERAL RESOURCES

34. South West Africa has a great variety of mineral deposits but
only a few have proved of real economic importance. There are con-
centratcd occurrcnccs of dianionds. lc~d/zinc. Coppcr and sait dcposits;
for tlie rest tlie l'r.rritory': niintrnl r<?sourccsare charastenzed bv rich
samples from small qiinntitirs widcly dispcrscd ovcr the countrv.
. -
35 D.iamonds are-found in the southern Namib area of soith West
Africa. The diamond minine at Oraniemund is bv far the most ~rofit-
able of dl mining \.enturi:; in tlie Territor". Aithough the prÔspects
for the imrnediatc future arc good. dinmonds are a (Iwindling rcsource.
The remainina life exoect;incv of the Oraniemurid fields at oresent rates
of exploitatio; is put'at no more tbau a fëw decades. At p;esent dredg-
ing for diamonds is taking place off the coast of the Temtory, but
this type of mining is still in its infaucy and it is difficult to Say with
any certaintywhat its prospects are. Large-scale mining also takes place
at Tsumeb, where vanous base metals such as lead, copper and zinc
are mined. The Oranjemund and Tsumeb mines together account for
about 96 per cent. in value of the Territory's total mineral output.

.iG A.part froni the t\vo instances nientioncd. mincral occurrences in
Soutli West Africa are gencrally of insufficient si7.cto warrant large-308 SOUTH WEST AFRICA

THE ACRICULTURAL POTPNTIALOP SOUTHWEST APRICA

Stock Timbar

I h'ormal to mar-Good Iargestock. ex- Extensivelex-
tilitlow tofer- tensive ploitable
moderate
2
Mfertilityoi1' None Large stock. ex-Stationxpas--
moderate i sible
3 Submarginal: None Large stock. ex-Extençively ex-
soil fertility tensive ploitable
I IOW l I
4 None Largestock, ultrNegligiblc
limited extensive
i
1One 1 Elimitecl1Lasmall stockand Npne
ultra-extensive

Smextensive toltrNone
marginal
Extremely Marginal small
Limited stock farming in
/ . I the better parts

scale mining operations. There are a number of small-scale mines in
is produced by the evaporation of sea-water.r, etc. On the coast, salt
37. As far as mineral fuels are concemed, the known coal deposits
in the Territory are not worth exploiting. whereas prospecting for
petroleum, especially in the northern parts of the Territory, is still in
progress.
38. Deposits of iron ore are to be found atvarious places in the
Territory, but the iron content is generally too low to warrant exploita-
difficulties have up to the present not made them an economic proposi-t
tion, while the absence of known deposits of workable quantities of
coal reduces their potential in a local iron and steel industry.

39. In the period after the Second World War South West Africa has
emerged as a considerable fish-producing Territory, due to the presence
and exploitation of a teeming marine life dong the otherwise barren and
inhospitablecoast. This marine asset is shared by Angola and the
Republic of South Africa along the south-western coast of Africa, and COUNTER-MEMOR IP SOUTH AFRICA 3O9

TRANSPORTATION

--
--."r - DIwa asr.-
.0.."ra-an-Dpna-
S&.rn,rn
u ,..............

manne ffishi-~ resources..upport a pilchard and crawfish industry.. The
40. Inland fish resources occur only in the extreme northem and
north-eastem Darts of the Territorv in ~erennial nvers and swamus. Al-
though these 'resources are jnot exploited commercially to ani con-
of the localrnliabitants.stitute an important part of the food supply

H. Transportation
41. Since South West Afnca possesses no navigable rivers or other
natural means of transport, transportatiowithin the Territory is
normally effectedby road or railway. The main transportation routes
are indicated on Mal> 10, above. In view of the vastness of the
high and tends to be a limiting factor for both agriculture and industry.
42. The only natural harbour along the coastline is at Walvis Bay,
which foms a part of the Republic of South Afnca, and which is far
from the more densely populated parts of the Temtory. Overland310 SOUTH WEST AFRICA

transport from the major production and marketing centres in the Re-
public of South Africa (whence the greater part of the imports to South
West Africa isderived) is ah cendered expensive by the long distance
involved. Thus, for example. the distance £rom Windhoek to Johan-

nesburg is more than 2,080 km. (1,292 miles) l.

1. Conclusion

4% In the urecedinr! ~arartra~hs of this Chauter. the natural uoten-
tiaizies of SoÙtli\Vest-~~rica:ai;d tlie problems>n\~ol\~edin any at'tempt
to realizc theln, have becn vcry brietly sketshed. The further factor on
which the develoument of the ~emto+ UD to the wesent has de~ended.
and which holds'the key to its futur; prÔgress, iamely its people, wi~

form the subject-matter of the succeeding two Chapters.

Comparable distances are:From Rome to Paris 1.102km. or 685 miles;to
Landanr.563 km. or 971miles; toOslo 2.005km. or 1,246miles; to Moîcow 2.386
lon.or 1,483 miles. CHAPTER II

POPULATION GROUPO SF SOUTHWEST AFRICA

A. Introductory

1. The population of South West Africa is today, and has been for
centuries, a heterogeneous one. When Respondent assumed the Man-
date in ~gzo. the Temtory was occupied by at least nine major popula-
tion groups differing widely as to appearance, ethnic stock, territories
of ongin, culture, language and general level of development. Some,
iike the Bushmen, lived a primitive nomadic life, existing from the pro-
ceeds of the hunt and the wild produce of the veld. Others, like,the
Ovamho, were agriculturalists, leading a settled existence in organized
communities. StiU others, like the Herero and the Nama, were tradi-
tionally pastoralists, following their herds wherever suitable grazing
could be found, but had largely been crushed and impoverished hy
continua1 wars before Respondent assumed control of the Temtory. It
is impossible to understand and evaluate properly the nature and mag-
nitude of the task undertaken hy Respondent in accepting the Mandate.
and the methods appiied in performing this task, without having regard
to the background and prior history of these various population groups.
This topic will he considered in this and the following Chapter of the
Counter-Memorial.
2. The main population groups found hy Respondent in South West
Africa were (in the order in which it is proposed to discuss them below)
the following:

(i) the Eastern Ca~rivi Peo~le.: .
(iij the Okavango i>eoples;
(iii) the Ovambo;
(iv) the Bushmen;
(v) the Dama (also known as Bergdama or Bergdamara or Damara of
the Hills or Klipkaffir) ;
(vi) the Nama (alsoknown as Khoi or Hottentots) ;
(vii) the Herero (also known as Cattle Damara. or Damara of the
Plains) ;
(viii) the Rehohoth Basters:
'(ixj the European or White population group (mainly of German and
South African ori-n, includinrr-German officiaisand soldiers) '.
Some of these groups have up to the present lived in their oyn areas
in the northern and north-eastern parts of South West Afnca, geo-

In addition there were certain minor groups sucas thc Himba and the Tjimba
paras. Er-82. intraand some Tswana and Xhosa, who at present amount to onlyida
approximately 0.6, per cent.of the population of the Territory and who are for
that reason not specially dealt with. The Coloured People (spart from the Rehobotb
Basters) arealso not considered to have been of sufficient significance, histo"cal1y
or numerically, in xgzo hate te vehe position may be today) to warrant their
classifications a major population group as at that stage.312 SOUTH WEST AFRICA

graphicaliy isolated from one another and from the inhabitants of
the central and southem parts of the Temtoq~, and remote from the
main Stream of South West African history. In this category one fin&
the tribes of the Eastern Caprivi Strip, the Okavango, and. to a lesser
extent. Ovamboland. It will be convenient, therefore, to consider each
of these three groups separately before dealing with the other groups
which had, prior to Respondent's assumptiou of control, come into
closer. and often violent, contact with one another.
The.history of the remaining groups, i.e., the Bushmen, Bergdama,
Nama, Herero, Basters and Europeans, is one of interaction and fre-
qnent conflict with one another. The Bushmen and Dama did not;
however, as groups influence this history to any extent-for the most
part their role was played by individuals and consisted of submitting to,
or attempting to escape, suppression by others. They also may, there-
fore, be considered separately, although, in the case of the Dama, brief
reference will have to be made to general historical events in the nine-
teenth century and early part of the twentieth century.
As from the first part of the nineteenth century, the history of the
Nama and the Herero is intertwined to such an extent with each other;
and later also with that of the White man in South West Africa, that
completely separate treatment of each group is impossible. The same
applies to the Rehoboth Basters, who only appeared on the scene in
South West Africa towards the latter part of the nineteenth century.
In regard to these groups, a separate discussion of each will be given,
including its history up to the beginning of the nineteenth century.
Thereafter the history of these groups forms a part of the general
history of southem and central Soutli West Africa. and will be dealt
with as such in Chapter III, which will also contain a short siimmary
of the position of each of the population groups in the years imme-
diately preceding the assumption of the Mandate by Respondent.
3. It may be mentioned that some of the information contained in
the followvingparagraphs has derived from officiais and ethnologists
who have either wvorkedwith. or studied the various groups often
for the purposes of unpublished tbeses or lectures. It wiUtherefore not
be possible to cite published ivorks in support of al1 aspects of the
information concemed. Should any of these facts be disputed, or should
any member of the Court wish any aspect to be amplified or illustrated
by oral testimony, Respondent \r.ould at the hearing willingly provide
experts for that purpose.

B. The EasternCaprivi Peoples

4. The peoples of the Eastern Caprivi Zipfel' (often referred to
simply as the Caprivi. or the Caprivi Strip) are of Bantu stock. but
are not ethnically related to any of the other Bantu clusters found in
South West Africa, Le., the Ovambo and the Okavango peoples2, or the
Herero.
' As to the oriein and meanine of the name "Ca~rivi Ziofel"videfootnote to
para.6. infra. - - . .
Save that the llbukushuof the Okavango (videpara. 22,infra)are related ta
the small number ofMbuliushu faund in the Caprivi. COUNTER-MEMORIAL OF SOUTH AFRICA 3'3

The main pol~ulatioii groups iii th,: C~privi arc the .\l:tsubia aiid
llafue. 'l'ogctlicrthe). L.onjtitutz aliiioit per sent. of tlie tutal popula-

tion. Small numbersof tlie .\la\f,v,. .\latotcl;i. .\l;ishiand 3ibukus~~ ~~ ~~~-
make up' the rest of the population. ~heie small segments have in
course of time become incorporated in the Mafue group, to whose . .
chief they bear allegiance.

II. ORIGIN AND HISTORY 1

5. The peoples of the Eastern Caprivi were, prior to the coming of
the White man, geographically, politicaliy and historically cut off from
the rest of Soutli West Africa. Their history was bound up with that
of the surrounding territories, Barotseland and Bechuanaland. In the
early part of the last century. the area surrounding and including the

Caprivi. was overrun by the Kololo 2, a Sotho tnbe, under the leader-
ship of one Sebitwana. After his death, the power of the Kololo waned,
and evcntualiy the Lozi (or Rotse-the inhabitants of Barotseland)
overthrew their conquerors (alter a total rule of about 40 years) and
themselves became the dominant tribe in the area. Their rule over the
tribes in the Caprivi came to an end when Germany effectively took
over its control, which, as isshown hereunder, occurred only in the begin-
ning of the present century.
6. In an agreement of IJuly 1890the British Govemment recognized
that the territory thereafter known as the Caprivi Zipfel' would

thenceforth fa11within the German sphere of influence. The purpose of
the agreement was to provide access from South West Africa to the
Zambesi by a strip not less than 20 English miles in width at any point.
The Gennan administration in South West Africa, however. made no
immediate attempt to exercise control over the area. In the result it
became a sort of no man's land, and is said to have been the happy
hunting ground of poachers and ne'er-do-wells. Several German ex-
ploratotv trios were undertaken and al1reoorts referredto theunrestric-
ied slaÜght& of game, including elepha<ts, rhinos, etc., by numbers
of European poachers.

7. 1n.1~08-the German Government at Windhoek decided to initiate
some form of administration in the Caorivi Stri~. Haubtmann Streit-
wolf was sent with a small force, including ase&eant 8f police and a
medical orderly, to be the first Imperia1 Resident. After a trying jour-
ney from South West Africa, he reached a spot on the Zambesi across
the river from the British station at Sesheke, where he established his
headquarters and which he named Schuckmannsburg in honour of the
then Governor of South West Africa.
8. On the arriva1 of the Germans, the Lozi inhabitants of the area
crosscd the Zambesi and joined their fellows in Northern Rhodesia,

taking with them a number of the Masubia (whom they considered
their serfs) as \%.elas their own cattle and that of the Masubia. After

' The material for this section is derived largely from tReporl onthe Adtriinis-
frntion of !ha Eastern Caprivi Zipfel. 194(unpublished).
Andersson, C. J., The Ok<zvnngoRiuer: A Narrative of Travel, Exploration and
AdveAfter Count1von.Caprivi. the German Chancellor at the time. The word "Zipfel"
is descriptive and means "tip" or "point". COUNTEK-MEMORIAL OF SOUTH AFRICA 3IS

The Eastern Caprivi people generally lived in smail villages. A vil-
lage sometimes had as many as 30 or more habitations, but it was
often much srnalier. The senior man of each village acted as village
headman and had certain local powers, as will be indicated hereafter.
People not related to the village head could join the village with his
permission.
14. The inhabitants of the Eastern Caprivi were, as indicated above,
reaiiy only portions of tribes forming part oa kingdom which existed
during the greater part of the nineteenth century under aitemate Kololo
and Lozi domination. They were, at the time when the Mandate came
into operation, ruled by two supposedly hereditary chiefs whose autho-
rity was, however, none tao strong. Many of the people still looked
upon the Lozi court as the most important governing body in tribal
matters, and constantly sought contact with their kit11and kin across
the river. One of the chiefs was at the head of the Mafue, Mayeyi and
Mbukushu sections, and the other of the Masubia section. Both chiefs
foiiowed the Lozi system of tribalg_overnment.
According to this system the chief was looked upon as head of his
people, the preserver of peace and good order, and the protector of
those in need. He was advised and assisted by a Ngambela, who func-
tioned as a sort of "prime minister", and by counsellor-headmen. The
chief, the Ngambela and such headmen constituted a council known as
the Kuta.
The Ngambela was appointed by the cbief from nominations re-
ceived from the people in generai assembly. Next to the chief, he was
were firstireferred to him, and he could, after consultation with theate
counsellor-headmen, dispose of minor matters himself.
Each counsellor-headman represented a particular area. In the event
of vacancies of headmen in the Kuta, new members were nominated
by the chief in agreement with serving members, and the people were
informed thereof at a public meeting. New tribal laws were made by
the chief and other members of the Kuta, and al1 laws so made were
announced at tribal gatherings.

15. For the purposes of local administration, the territory under the
headman, who was elected by the residents of the ward in conjunction
with the Kuta member representing that area. The selection of a head-
man had to be confumed by the Chief-in-Council, from whom the
headman also received instmctions as to the duties he had to perform.
In addition, village headmen performed minor administrative and judi-
cial functions under the general control of ward headmen.

IV. LANGUAGE

16. Each of the five tribes had its own vernacular but ail the people
also knew, and spoke, Silozi or. as it is also called. Sikololo (the lan-
page of their erstwhile rulers, the Lozi). Silowas therefore the com-
mon medium of communication, and in fact it still is. It later also
became the language of the schools. It is a Rantu langua e, but quite
differeut from the other Bantu languages spoken in South5 Vest Africa.316 SOUTH WEST AFRICA. . .',

17. The Caprivi peoples have their own traditional religion. They.
believe in a supreme being, or deity, who decrees and supervises the
fortunes of man in a remote wav.
A forin of ritu:~l\vliereby théintercession of tlic spirits of dcpaned
ancestors issought. isconimonly practise(1.\i'ticn tlie Iielpof the ancestors
1s neecléd.:i cereiiioiiial fc.~;t is li:~ii(tlir .Yru»~bo.l13 oerjon who
is believed to be in communion with the ancstral siiriis) is sum-
moned. A beast. black in colour, is slaugbtered, and while its blood
(or beer, or both) is poured over a rough framework or platfom speci-
ally constructed for the occasion, the Ngombodispeaks to and implores
the aid of the departed spirits. The ceremony concludes when women
pour water over the Ngombodi, and then mn away.
No missionaries settled in the Eastern Caprivi prior to 1920 (the
year in which the Mandate was granted to Respondent).

VI. ECONOMY

18.The Eastern Caprivi peoples were, by tradition, primitive agri-
culturaiists and stock farmers, with the general material culture nor-
mally pertaining to such people. They added to their food supply by
hunting, fishing, and collecting wild fmits. Their houses were usually
made of material obtained in the immediate neighbourhood, mostly
reed and thatch.
19. Land \vas normaily used on a communal basis. When it \vas
sought to establish a village, the chief's permission was first obtained.
Thereafter, the Kzcla member who had jurisdiction over the area, de-
marcated a stretch of land for the use of the village. The village head-
man then divided up the area so demarcated amongst the villagers.
The individual to whom land was allotted, made no payment in respect
thereof, and he retained the right to use it for his lifetime. It could,
however, be taken away from him if he repeatedly flouted the authority
of the chief, or otlienvise seriously misbehaved.
20. Since there was no individual ownership of land, tliere \vas also
no inheritance of land. but land once allocated to a village remained
in the possession of its inhabitants. \men a man died, his close relatives
divided his movable property, or so much thereof as they considered
equitable, among his children. The deceased's eldest son was then re-

When a woman died, her relatives distributed ber possessions. The sur-

viving husband did not inherit from his deceased wife.
21. The Eastern Caprivi tribes, as found by Respondent, stiil lived
in the same way as their ancestors had for centuries. As late as 1938,
for example, it \vas found necessary to depose a chief for refusing to
stop practising witchcraft l. The people were content to produce only
sufficient for their subsistence, and most of the work was done by the
women-folk.

' U.G. 20-1939, para.qzo, p. 57. COUNTER-MEMOR IFLSOUTH AFRICA 317
d
C. The OkavangoPeoples

22. There are five mutudy independent tribes in the Okavango ter-
ritory, viz., the Kuangari (or Kwangali), Djiriku, Bunja, Mbukushu
and Sambiu. They are negroid, Bantu-speaking peoples. Like the
,Ovambo, these peoples differ completely in their way of life from the
pastoral Herero, who are also of Bantu stock.

The size of the Okavango population in pre-Nandate days is not
known. An estimate of 24,249, given in Respondent's Annual Report to
the Council of the League of Nations on the Administration of South
West Africa, 1921 ',included the Natives in the Eastern Caprivi Zip-
AU.2.
The 1951 census showed the Okavango population to be 21,873, and
the 1960 census, 27,871. The tribal percentages at the present time are
estimated to be as foiiows: Kuangari 26.50; Bunja 18; Samhin 17;
Djiriku 20; Mbuknshu 18.50.

II. ORIGIN AND HISTORY

23. In ttie cûrly days of Soutli \\'est Africn. ttic larger pnrt of thcli of
ttie trilies lived on the norkink of tlie Oknvanjio Kiver (1.c..in Arijiolaj,
\\.tiiic ttie sr1i;illeofacdcti livcd011ttie south bank There iscvidence
that this was still'the position in 1859 ).It would therefore appear that
the tribes in the Okavaneo territorv must have eitablished themselves
in the areas nowoccu~id ba .hem in the course of the last hundred
years.
Althongh the Okavango tenitory stretches a considerable distance
away from the Okavango River and into the interior of the desert-like
Omaheke-veld, most of the inhabitants of the temtory are distributed
along a narrow stretch of country on the south bank of the river, from
Kwing-Kuru in the north to Bagani in the south.
Each one of the five tnbes bas its own defined tribal area. In some
cases these areas are.separated from each other by an uninhabited
stretch of land.

24. Until fairly recentlythere was virtually no contact between the
people of the Okavango and the groups to the south. This was due to
the Okavango territory's virtual geographic isolation from the south by
arid uninhabited stretches of country-a factor which probably also
saved the Okavango people from the armed struggles which marked
the history of the southern groups dunng the nineteenth century. At
one time the Tswana from Ngamiland in northem Bechuanaland used
ta come on regular cattle-raiding expeditions *, and it is also known
that the Kuangari were sometimes subjected to raids by the Kuanyama
of Ovamboland, but othenvise the Okavango people's main contact
with the "outside world" was with the related tribes of Angola.

' U.G. 32-*g*z, p.I*.
For the populationfiguresof the Caprivi, vide pa9,supra.and the footiiote
thereto.
' Vide Andersson. C.J.. TheOkavango Riuer:A Rarrative oTravel.Exploration.
and Adventure (1861)pp. 146,184. rgo.
+ Andersson, C.J.,op. cit.p.194.318 SOUTH WEST AFRICA

This secluded existence continued during the German regime. A mili-
tary post was established on the Okavango River, but otherwise the
territory was not brought under German administration. The first real
attempt ta bring European influence to bear on the temtory was in
19x0,when a Roman Cathoiic mission station wasestablished at Diriko.
25. When the Okavango people settled in their present territory, they
came across a group of Bushmen, now called the kIbarakwengo, along
the river; and further inland, throughout the Omaheke, lived the
nomadic !Khung Bushmen. Although the Okavango people employed
the Bushmen as servants and cattle herds, they did not accept them,as
part of their Society, and always looked upon them as people of inferior
status '.

26. The basis of the social structure was the principle of matrilineal
descent, i.e., children belonged ta the social 5onp of their mother.
Specificpatterns of behaviour towards individuals in the grau of matri-
lineal kinfolk were determined by the system of kinshii T. us a very
strong relationship existed between a man, his sisten an their children,
and this relationship formed the basis of immediate succ~sion and
inheritance, a mm inheriting bath status and property from his mother's
brother.
Theunit of local grouping was the individual family (whichconsisted
of a man, his wife or wives and their children) with its own kraal (i.e..
the collection of huts belonging ta the family together with their cattle
pens). Moreoften than not, however, an number of kinsfolk matrilineally
related to the family head aiso shared the family residence.
27. The traditionai political organization which existed in the Oka-
vango when Respondent took over the administration of South West
Africa was that of hereditary chieftaincy. Under this system. the central
authority in each tribe was vested in a chief, who could be a man or a
woman.
All ultimate legislative, executive and judicialpowers were vested in
authonty and influence over their people were often weak, and heads ofeir
families displayed a great deal of independence2.

IV. LANGUAGE

28. The Kuangali language was, and stiü is, generally used by the
Kuangari, Bunja, Sambiu and Djiriku with local dialectical versions,
whereas the Mbukushu have a separate, definite language.

V. RELIGION

29. The traditionai reiigious pattern of the Okavango
cides with that of Bantu peoples in general, namely behe
spirits. Missionarieshave been working among them since 19x0 '.
' Andersson,op. cit.,194.
Ibid.p. 187.
Vide para24. supra. COUNTER-MEMORIAL OP SOUTH AFRICA
319

VI. ECONOMY

30. The people of the Okavango were, and are still today, both agri-
culturalists and pastoralists. They hadlands, orgardens. near their kraals,
and their stock consisted of cattle and goats. Since they lived close ta
the Okavango River, fishing naturally played an important part in
their activities, and fish provided a significant addition to their daily
food '.
The numbers of their cattle were, in olden times, regularly reduced
by raiding The people could Save their own lives by fleeing in their
canoes, by fortifying islands in the river, or by hiding in places known
only to themselves, but they could not Savetheir stock sa easily.
Ownership of al1 land was vested in the chief, who ailotted specific
pieces of land to individuals for agricultural purposes. Otherwise than
in the case of the Ovambo 3, no payment was made by the individual
for this privilege. Such individuals retained their rights in respect of
land as long as they used it.Grazing, the produce of the bnsh, and fishing
were free to all.
31. Since succession was matrilineal, a man's possessions were in-
herited by bis matrilineal kinsfolk. The administrator of the estate was
generaliy the eldest living brother of the deceased, and the major heir
was the eldest sister's eldest son. Land could not be inherited, but since
the heir usually occupied the kraal of the deceased and also acted as
guardian of his family, he generally ah utilized the deceased's lands.

32. At the time when Respondent assumed the administration of the
Temtory, it found the people of the Okavango at a low level of de-
velopment. Respondent's Annual Report to the Council of the League
of Nations, 1932 ',mentioned for instarlce that the people of the Oka-
vango were "blessed with every natural advantage" along the river,
since there was an abundance of fish arid crops grew readily, but that
they nevertheless failed to plant substahtial crops and to store sur lus
produce, being apparently content to lead their accustomed hanho-
mouth existence.

D. The Ova~nbo

33. The term "Ovambo" does not designate any particular tribe, but
is a collective name for the various tribes of Ovarnboland. of which there
were eieht when Resvondent assumed the Mandate. viz.. Kuanvama.
Ndong; Kuambi, h'gandjera, Mbalantu, ~ualuthi; NkblonkaG and
Eunda. The Ovambo are of Bantu stock, but differ significantly from
the other Bantu groups in South West Africa
Ovamboland is the most densely populated area in South WestAfrica,

' Vide Andersson. op.dl..pp. 19r. 214-216.
Videpara. zq, suprn.
Videpara. 48. infra.
+ U.G. 16-1933, para. 436, p. 76.
' Hahn,C H. I,.."The Ovambo".in ThcNoliiieTribcs ofSoulh Wcst Africo (1928).
p. 1;Vedder, H.. South Wcst Afvicain Envly Times, tranç. and ed. by CG. Hall
(1938). P. 67.320 SOUTH WEST AFRlCA

and the Ovambo form the largest ethnic group in theTemtory. Owing
to the unreliable nature of population figures for Ovamboland prior to
the 1951census, it is difficult to give an accurate picture of the position
at the stage when the Mandate was assumed.
In 1876, the British Commissioner, W. C. Palgrave ',estimated the
population of Ovamboland at 98,000 2.
According to a census which was held shortly before 1928 the popu-
lation of the various Ovambo tribes was made up as follows ':Ndonga
65,000; Kuanyama 55,000; Kuambi 8,000; Ngandjera 6,600; Kualuthi
6,100; Mbalantu 5,100; Nkolonkati 1,200;Eunda600; a total of 147.600.
In 1921 the Ovambo population of South West Africa was estimated
at go,ooo, apparently an under-estimate '.
In 1960, according to the census taken in that year, the total Ovambo
population was 239,363, or approximately 45.5 per cent. of the total
population of South West Africa (526,004).
The iribal percentages at present are as fouows: Kuanyama.37;
Ndonga 29; Kuambi 12; Ngandjera 7.5; Mbalantu 7; Kualuthi 5;
Nkoloiikati and Eunda together 2.5.
In addition some !Khun and Heikom Bushmen live in the areas of
some of the Ovambo tribes . g

II. ORIGIN AND HISTORY
34. Nothing definite is known of the land of origin of the Ovambo '.!
This has given rise to some speculation, but, as stated by Dr. J. P. van
S. Bruwer, Professor of Social and Cultural Anthropology at the Univer-
sity of Stelienbosch. who has done considerable fieldresearch among the
Ovambo :

"These speculations, very often based on assumed cultural traits
and not reality, may be interesting, but have very little conn~t!on
with tradition as still remembered by the people .. . Tradition
agrees on one point, namely that the ancestors of al1 the Ovambo
peoples were the same, and that they migrated from the shores of a
lake which is not identified, but lies somewhere to the East in the
regions of Central Africa ...
The Okavango is the hst geographical link with the past of the
Ovambo ople. They settled on the bauks of this river at a place
called 0sKmolo during the reign of one Sitenue. Vedder calculated
that this happened during the middle of the sixteenthcentury '."
' Vide Chap. III. para. 37,infra.
2 G. 50-1877. Report of IV. Coates Palgroue, Esq.. Specinl Comniissioncr Io
Ihc Tribes North of the Orange River, of his Mission fo Dar>rnraln+rdand Greof
Namaqualand in 1876, pp. 48-49. (This report will be cited hereafter as Polgraue's
Report.)
' Vide Hahn, op. cif.. p2.
* U.G. 21-1gz3, p. IO.
' Fourie. L.. "The Bushmen ofSouth \Vest Africû". in The Native Tribe01South
West Africa (rQ28). p. 83.
' Schapera,e1.."TheNative Inhabitants", in The Cambridge Hirlory of the British
Enlpirc. cd. by J. Holland Rose, A. P. Sewton and E. A. Benians (1929-1936). 1'01.
VI11(1936). South Africa, lihoderin and the Prolectorafes. p. 36.
Bruwer, J. P.van S.,The Kuanyama ofSoulh WerfA frics(A ~relitrrinary Study)
(unpubliçlied), p. 15. COUNTER-MEMORIAL OF SOUTH AFRICA 321

35. Tradition has it that the ancestors of the present Ovambo and
Okavango peoples were once known by the name A'amba, and that
they al1occupied an area along the Okavango River, kut that one sec-
tion (viz., the present Ovambo) ultimately moved westwards as a result
of interna1 quarrels ',while the rest remained along the Okavango.

36. On account of its geographic isolation, bein bordered on the
south by vast uninhabited stretches,Ovamboland ha % very little contact
with the groups living in other areas. Some trade was carried on outside
the country's borders to obtain copper and iron, but few Ovambo ever
left their tribal territory. The Ovambo peoples were rarely attacked
by ontside groups. They were raided by the Herero in the very early
days and later, in the nineteenth century, by the Orlam Nama leader,
Jonker Afrikaner 3.
37. The various Ovambo tribes were often at war with each other,
however, and, indeed, on entering the Tenitory during the First World
War the South African forcesfound the Ovarnbos,in the wordsof General
Smuts "riddled with witchcraft and engaged in tribal forays in which
there was no security for man or beast" 4.Snch raids, which had been
carried on interrnittently for many generations 5, were not only moti-
vated by a desire for gain, but also by traditional enmities between the
various tribes dating back to the times when slave traders bought slaves
from Native chiefs in Angola and Ovamboland for export to Brazil.
Whilst chiefs were seldom averse to çelling their own subjects (especialiy

criminals) to such slave traders, they often obtained their main supply
by raiding neighbouring tribes. In return, chiefs were given brandy,
gunpowder and firems-which they learnt to handle at an early date,
and which they continued to acquire long after the export slave-trade
had ceased.Evenin 1917 ,outh African forceswereinvolved in an armed
clash uith Chief hlandume' of the Kuanyama tribe, whose seat of
government was then in Angola.
38. The Ovambos were Little affected by the German rule of South
West Africa. The Germans never extended jurisdiction over them,
contenting themselves with establishing military posts at Namutoni on
the south-eastern edge of the Etosha Pan, and at 0kaukuejo.on its
south-western approachs. They had no civil officials resident in the
area 9. Mission activities, however, commenced in 1870 9. For the rest.
contact with the Europeans during the German regime was limited to
the em loyment of Ovambo labourers in the Tsumeb copper mine and
the ~ugritzbucht diamond fields Io.

' Vide Vedder, op.cil.pp. 155.157.
Vide para. 83. infra.
Vide Chap. 1IL para. 18,in/t.a.
' U.N. Boc.AlC.ql41, inC.A..O.R.,FirslSess.,SecondPort, FourlhComm.. Part1.
Annex i3a, p. 242.
' Hahn. op. cit.pp. 19-24.
Vide. eg., Andersson,op.cil.p. 196.
' Vide Hahn. op. cil.p.9.
"ide V.G. 41-1926, para.145,p. 43.
' Lord Hailey, A Suniey of Native Auairs in SoulhWest Afriçn (1946)(unpub-
Li"hHailey,op. cil.p. 5. 322 SOUTH WEST AFRlCA

III. SOCIAL AND POLITICAL ORGANIZATION

39. 'l'tic socid itmcture of tlic Ovambo pcoplcs \\.as an.d sti11is,
1)ssedon rlie coiicept of matrilineal dejcent. Ctii1ureiil)elongto the social
"-~i) o~~.lan of rlieir iiiother. This a~f~ ~~ ~~e svstciii of succession in
the case of chiefs, and also the mles as to inheritance '.
The matriclans are not localized entities, for although their members
are referred to as ouakwelhu(i.e., "our people"), they may find themselves
dispersed throughout the country. Such matrilineal kinsfolk may some-
times inhabit the same area, but generally the tme corporateunit in
Ovambo social life is the individual family. residing in its own kraal.
The kraal is normally the abode of a man, his wife, or wivffi, and their

children, although other relatives sometimes also iive with them 2.
40. The various Ovambo tribes have for a very long time functioned
as separate poiitical entities, each with its own system of rule. They
never developed one central system of govemment. When Res ndent
assumed the Mandate, four of the tribes, viz., the Ndonga, gambi,

Ngandjera and Kualuthi were ruled by hereditary chiefs, and in the
case of the other four (the Kuanyama, hlbalantu, Nkolonkati and Eunda)
the supreme authority was vested in headman 3, with the assistance
(particularly in the case of the Kuanyama) of officers which had been
appointed during the period of military administration (1915-1920).
The chief's royal abode was far more elaborately built than that of
the commoners '. In the case of tribes ded by chiefs, his residence was
the centre of the sacred tribal fue 5, which was always kept burning,
and which served as a symbol of welfare and fertility in the land % The
sacred fire was held in special reverence among the Kuanyama where,
indeed, des ite the death of their last chief in 1917.it is stiUkept burning
today by tRe headmen of the tribe 7.
The divine nature of theovambo chief offormer times has often been

stressed by writers, and there can be no doubt of the exalted position
which he occupied8. Upon his health and weU-being,it was beiieved,
depended the welfare of the wholecountryand all its inhabitants. He was,
therefore, always well protected by a strong bodyguard 9,and custom
prohibited him from going beyond the boundaries of hisown territ~ry,'~.
Succession to the chieftaincy was-and still is-matrilineal, passing
eithcr to a younger brottier, or to a sister's son '.
In early days ctuefs tiad the power of lifeand death over their subjects.
and as is iiot unusual in such cases. tradition recounts iiistances of abuse

' Hahn. op. cil.pp. 8.2.5;Vedder, op.cil.p. 72.
Hahn. op. cil.p. 24;Vedder, op. cil., p. 69.
3 Ha~~~~~.,~ ...~,. 8.
' Vedder, op. cil
' Ibid..=o....
Hahn. .'4. cil..-.2
' Ibid..pp. 17-18,
Vedder. op. cil.pp. 73-74: Hahn. op. cil.pp. 8-17; Andersson. C. J., Lake
Ngomi: or Explorations and Discaveries, during Four Yean Wanderings in the
Wilds of South Western Africa (2nd ed.). .... 1.8.
Hahn. ob. cil.u. 10. COUNTER-MEMORIAL OF SOUTH AFRICA 323

of such authority, sometimes cruel and inhuman, on thepart of some of
the chiefsconcerned '.

41. For purposes of administration, the tribal territory was,divided
into districts, each of which was placed under the jurisdiction of a
councilior. The districts again were subdivided into wards with a sub
councillor in charge of each ward. The counciilors did not belong to a
speufic clan or group within the people, but were appointed by the chief,
and he was not obliged ta ask, or heed, their advice. The chief and the
councillors constituted the central tribal authority, which dea!t with
ail civil and juclicial matters affecting the people-a system whch was
closely connected with the system of land tenure in vogue amongst the
Ovambo z.
The political system of the tribes which did not have chiefs, may be
iiiustrated by reference to the position of the Kuanyama. After the

death of their last chief in 1917 .he counciiiors proceeded to exercise
the supreme authority over the tribe previously vested in the chef.
Succession to a counciilor (or headman) is effected,by po ular choice
of the people of the district concerned, although the matrifneal rule 1s
often followed 3.

IV. LANCUAGE

42. Each tribe has its own dialect, but there are sa many fundamental
differences between them that some ofthem, at least, maymore properly
be regarded as separate languag-s. ~hey aUbelong ta the Bantu family
oflanguages.
Two languages, those of the Kuanyama and Ndonga tribes, at present
dorninate the scene. This is due partly to their superior numbers, and
partly to mission activity in setting the languages to writing and pro-
ducing publications in them. Missionaries began their activities among
the Ndonga at an earlier date than elsewhere in Ovamboland, and as

a result the Ndonga language has been further developed than Kuan-
yama, or any other Ovambo language.

43. The traditional religion of the Ovambo tribes was a vague kind
of monotheism, and there were, in addition, many beliefs and practices
connected with spirits, both good and evil. Witchcraft was rife '.The
first attempt by missionaries ta enter Ovamboland occurred in 1857,
when Dr. Hugo Hahn and the Rev. Rath, of the Rhenish Mission,
tried to establish contact with the Ndonga tribe. Theywereattacked, and
barely managed to escape death 5. In 1870Finnish missionanes obtained
permission from the Ndonga tribe to establish a mission station in their
temtory, but it was many years before similar permission could be
obtained from the other tribes 6.However, in 1903 they established a

' Hahn, op.cil.pp. 8-9: Vedder. op.dl.,pp. 73. 161-163
Hahn, op. cil.. pp18-rg;Vedder, op. n'i.. p. 72.
' Bruwer. 04. cil...."22<<2,
+ Hahn, ;p.'cil.pp. 2-8;Vedder. op. cit.pp. 74-77.
Vedder, op.ci!. ,. 269.
Palprnve's Rtport, p49.3=4 SOUTH WEST AFRICA

mission station in the territory of the Ngandjera, and thereafter in the

territory of the Kuambi and Kuduthi (1go8), Nkoloukati (1913) and
Mbalantu (1918). From about the tum of the century, the Rhenish
Missionalso operated in the area.

VI. ECON~MY

44. The Ovambo peoples have always been both pastoralists and
a~riculturalists ',and this brought about a more settled form of exist-
eice tliaii \vas the c;i,e with the purcly plstoral peoplei in otlier Iisrts
of the Territury. This circumstanse probably accourits for the fact that
the Oinniùu peoples never peiietraterl into the soiitlicrn scctor of tlie
c~~ntrv., .ere âericu.,u~ ~-under rim mit ive conditions was virtuallv
irnpoisible. ICvçntodn). the southeri bclt of O\.aniboland rcriiaiiis prac-
ticallv uniiili:~bited, ;ince tlic ~eoul~.1iai.cconcentr3tcd in tliosc aréas
wheréthere is a ready supply Ôfwâter for agricultural purposes Z.

45. Owing to their settled form of existence, tlie Ovambo peoples
developed permanent house structures built of timber and thatch. Their
kraals were stockaded stmctures with many passages leading to the
sleeping and other quarters Their cattle pens were generaiiy attached
to the kraals,and their gardens were in the immediate yicinity *.Whereas
wells used to be the normal source of water supply in the early days.
dams have now been made in many areas.

46. The material culture of the Ovambo peoples was very similar
to that of most Bantu peoples. They developed many crafts which
enabled them to provide for the ordinas. necessities of life. Knowledge
as to the production of primitive iron work, copper ornaments, wood
utensilç and omamexits, dress and decorations was already developed
at the time of the coming of the White man

47. The basic ecoiiomy of the Ovambo peoples was a suhsistence
one based on agriculture and stock fanning. The staple crop was finger
millet and sorghum, but cucurbits and legumes were also produced.
To some extent,surplusfood was stored for use in times of scarcity 6. The
gardens usually comprised some 12 to 20 acres of arable land. On account
of the flat nature of the country, the shallow soi1and the possibility of
periodic inundation, mound cultivation was practised. Women performed
the greatest part of the work as far as a family's agricultural activities
were concemed, including the preparation of the land, harvesting and
threshing 7.

48. In accordance with tradition and custom, land ownership was
vested in the chief or headman who was entitled to grant, for remune-
ration, Iife interests of a usufnictuary nature to individual members of
the tribe in respect of specific pieces of land used for agricultural pur-

' Andersson, C. J., Lake:Vpmi (2nd ed.) pp. '202-203.
Hahn, op. cil.pp. 33-35; Vedder, op. ci;.p. 156.
Vedder, op.cil..p.69: Hahn, op. cil.pp. Io,24.
* Andersson, op. cil.,'P.201-202.
' Hahn. op.cil., pp.24,35-36; Andersson, C.J., op.cil.,pp. 204-205
Andersson. op. cil.p. zoz.
' Hahn. op.cil.,p. 18.35; Vedder. op.cil.pp. 68-69 COUNTER-MEMORIAL OF SOUTH AFRICA 325

poses '. Non-agricultural land was reserved for grazing on a communal
basis.Similarly any one was aüowed to use the produce of the bush, but
the cutting of fruit-bearing trees was prohibited since they were con-
sidered tribal property.

49. Practically every Ovambo family possessed its own cattle and
goats, which were cared for by the man and his sons. Cattle, especially,
were highly prized, and not easily parted with, or slaughtered, Save
during ceremonial feasts. A man's wealth was generally measured by
the size of his herd 2.Sheep do not thrive in Ovamboland, except in the
western parts,nordo horses which were introduced as beasts of burden
in more recent times '.
50. TIie rules of inheritance among the Ovambo peoples foiiowed
the matrilineal nature ' of their Society, a man's principal heir being the
eldest son of his eldest sister5. A man could, dunng bis lifetime, donate

his cattle to bis own children, provided they were not lineage cattle.
Personal belongings could also be disposed of during the owner's life-
time. A woman possessed rights over the produce of her lands, and on
her death her personal belongings went to her daughters. Landitself was
not heritable.
51. Already during the German period, numbers of Ovambo were
employed in the Police Zone. The general practice was for Ovambo
men to work in the Police Zone for a period and then to retum home.
This accorded with the wishes of the leaders of the various tribes, who
were jealously on guard against al1factors which could lead to detribal-

ization 6.

E. The Bushmen

1. COX~POSITI O SD DISTRIBUTIO Y P THE GROUP

jz. The Bushmen are a short, relatively light-skinned people, and
form part of tlie Bush pcople who at one time roamed over many areas
throughout Southern Africa'. They, together with the Hottentots8,
belong to the Khoisan groiip of peoples of Southern Africa l,and un-
doubtedly represent some of the earliest inhabitants of this part of the
continent 'O. Their name derives from tlieir roaming existence in the
veld or bush. They were also collectively termed Saan of Sankwa by
the Hottentot people. There are numerous indigenous names for the

various groiips or bands of Bushmen IL.
Schapera, the well-known expert on the races of Southern Africa,
described them as follows:

\'edder.op. cit., 72.
Andersson. op. cif., p199.
3 Hahn, op.cil.pp. 24-25, 33-35:Vedder, op. cil.pp. 68-69.
' Hahn. op.cil., p. 8.
Andersson, op. cil.pp. 199-200.
Bruwer. op cil.pp. 21-22.
' Schapera, The Cambridec His1or.yof th8 Brilish Empire. Vol. \'III,23.
Vidt para. 72,infrn.
Schapera. op.cil., p21.
'0 Ibid..p.zz.
Vide Fourie, The Native Tribes oSouth West Africa (1928). p. 84.326 SOUTH WEST AFRICA

"The Bushmen are typicaüy short in stature, averaging about
five feet, with slender limbs, small han& and feet, and poorly
develo~edbodieswhoseamearance is often marred hv the Drotuber-
3111st~ach~nnd~iollo\vb~cl<sof the mcn and rhc pcklulo;s hrcnsts
and fat buttocks~<ndtliiglisof the \r,onien.'i'hcsliinis yelio\nsh broivn
in colour andwrinklesvëweasilv: thehairisshort. w<ollv and soarse.
nri(lscattereclon th~scal~niniRl~.~e~~crcor Trleh'tndii;ms:~li
and rclativcly I~ro:icl;the facv rectnngiilar.\vit11hulging forchead.
prominent cheekbones, nose extremely-flat, eyes wideapirt, narrow
and often slightly oblique, and ears frequently lobeless '."

53. The Bushman population of South West Africa consists of three
main sections, viz., the Heikom. !Khung and Mharakwengo. Their
distribution at the time of the assnmption of the Mandate was, as far
as can be ascextained from more or less contemporary writers such as
Fourie 2. much the same as at nresent 3.For convenience. the Dresent
positionwill be set out in thij pa;c12inpli.
3'112Hcikoni Bu;lliiien arc sc:tttcrcd o\.er;I\vide ara iitlie soutliern
sector of the country, nowadays often on farms. as well as over the
areas surrounding the great Etosha Pan. Some of them have penetrated
as far north as Ovamboland, where they live in the temtories of the
Xgandjera and Ndonga peoples 4.
The !Kliung Bushmen also cover a vast area of the Territory in their
wanderings. Although many of them live in the southern part of the
Territory, they are to be found also in the eastem and north-eastern
regions, the main areas of concentration in the northem sector heing the
Okavango area. the country between that area and the Police Zone, and
Ovamholand. In Ovamholand they are confined to the eastem section of
the country, where there is only a small Bantu population. Below the
Okavango area they also occupy the wide stretches of the Omaheke. or
desert-like area, which are not inhabited hy the Bantu. Where they live
in areas which are occupied by Bantu, Bushmen often serve them as
cattle-herds.
The Mbarakwengo are a smaU group. They differ from the Heikom
and the IKhung in that they are taller and of a darker complexion.
They are scattered among tlie hfbukushu Bantu of the Okavango, and
a few hundred of them also occupy a small area in the western Caprivi,
across the Okavango River.
54. It is extremely difficult to obtain a reliable population figure in
respect of the Bushmen. Most of the earlier figures given appear to be
no more than estimates, and even today no accurate figure can be
obtained. The foliowing are examples of earlier estimates:

South West Africa Administration 1921 32931 i
Fourie 1928 2,500-3.500
South West Africa Administration 1946 10.349 '

Schapera op.ci;.p. zo.
Fourie.op.cit., pp.82-84,
Vide alsoSchapera op.cil.p.23.
Fourie, op. cit.. p.83.
' U.G. 32-1922,p. 12.
Fourie.op.~it,p.84.
' U.G. 49-1947. PP. 3-4. COUNTER-MEMORIAL OF SOUTH AFRICA 3=7

Accordine to the 1q60 population census, Bushman was the mother
tongue of 1Ï,762 bui there were probably a few thousand more
Bushmen whom it was not possible to enumerate hy reason of their
nomadic existence in geographically isolated areas

II. ORIGIN AND HISTORY

55. It is generaiiy beiieved that the Bushmen represent the earliest
inhabitants of the present day South West Africa, that they originally
roamed over wide stretches of the Territory, and that they were pushed
into the more inaccessihle regions of the country by other groups wbich
advanced into their areas of habitation. Nohody knows when they first
settled in the present-day South West Africa. Fourie States in this
respect:
"Of iiiigration of the Uushmen froni elsewherr:rionicntion is made
III local nati1.e traditions. The Hortcntoti, Hcreros and Ovambos
îtare tlinr ori their amval the Uuslirneii werc foiind in occup~tioii
and that the latter must have been livinehere ever since thecieation
uf nian. '1'11~3iishnicnlikcwi.;cbeliï\.e ;tilt tlic.ir~ircsenttrib~l divi-
sions :tiid di~tributioii II~been in ciît~nce~ince tlie \'Cr!.bcgiiiriiiig
uf thincs wlicn e:icli tribeIi:iirs oricin in;I'fint bir 13ujliiiiaii'and
a 'first-big Bushwoman' of its own By whom wcre handed down to
their descendants the practices and customs stiUpeculiar to and the
territory still occupied by their respective trihes '."

56. Although the Bushmen led a roving life, each section, and each
band within a section, was expected to keep within its own domain-
its own defined area. Poaching groups constituted a threat to existence,
and were treated as enemies. In time, as the more advanced Hottentot
and Herero pastoral nomads. and Bantu agriculturalists, moved into
their hunting fields, thereby threatening their very existence, iife for
the Bushmen became one long struggle for survival. They fared badly at
the hands of the more powerful Hottentot 2,Herero 3 and Bantu groups
by whom they were, over the years, hunted and killed as if they were
wild game. Tliose who escaped death and servitude fled to inaccessible
or desolate parts of the countrjr, there to continue the struggle for
survival against the encroaching forces of different cultures '-forces
inimical tu their way of life. As put hy Dr. Vedder who lived and worked
as a missionary in South West Africa for many years, and made a
special study of itsnative peoples and history:

"From the earliest times they were despised. hated, and fiercely
persecuted by all other natives. and so the onlydwelling-placesleft to
them were inaccessible hiding-places in the mountains and just as
unapproachahle hidden refuges in the trackless thom bush of the
plains. Distrustful of every one who belonged to another tribe,

' Fourie,op.cil.. p82.
Vide piiri73. itifra.
Vhus Andersson wrote in 1851(Lake Ngami (2nd cd.), p. 2rr): ". . the
Damaras IHerero] themselves are alwvys waging an exterminating war on the
Vidc also para. 84.infra.t them down. wherever met ivith, like wild beasts."
' Vedder. op.cil.p. 26.328 SOUTH WEST AFRICA

suspicious of the members of tlieir own unless they belonged to their
own clan, they avoided all contactwith the outer world ... "'

General ~muts-formed much the çame impression, after the First
World War, about the attitudes of other groups to the Bushmen. He
said 2 that the South African occupation forces found "the roving Bush-
men still regarded as little better than wild animals-human vermin
of the veld" '.

III. SOCIAL AND POLITICAO LRGANIZATION

5;. T\.e tr~dirional social :iiid politicjl urg.tnizatioii 01 111~ l. usliiiir.ii
\vas 01 a \.ery siiiiplc iintiire. It ccnrrell :iruuiid sm~ll groiips. gcncrdlly
teriiicd bandj. iuld ~OII~IS~IIIC i~redo~nin.intl\~of kinifolk '. 'flic si~e of
these bands varied consider&fy from group to group 5.and was often

dependent upon the availability or scarcity of food. Reported groupings
range from a few to a few hundred individuals. Lorna hlarshall refers
to a somewhat exceptional case among the llchung, where 14 bands,
ranging from 8 to j7 individuals in a band, formed a community of 353
people, composed as follows: married men (9 with z wives) 88; married
women 97; oldwidowers 3; old bachelors I ;oldwidows 24; young widows
2; young divorced women 2; uninarried boys 78; unmarriecl girls 58; a
total of 353.
The small community groups of the Bushmen were largely determined
by their environment and peculiar mode of life '.During times of plenty

the size of the band was at its maximum, but when food became scarce,
bands broke up into several smaller groups, which reunited when the food
position improved again.
There were also a uumber of traditional social controls which tended
to keep down the size of the band. Firstly, in a nomadic way of life it
was impossible for a mother to attend to two or more small children
at the same time8, and families accordingly te,nded to be small
Some groups buried an infant with its mother when the latter died

Vedder, op. cil.p. 78.
U.N. Doc. r\lC. ./41.G.A..O.K.. Firsl Sers.. SeroizdPart. FourlhComm..Part 1,
Annex 13% p. 242.
3 Vidc also: Andersson, C. J., Thc Oknva>rgoRiver (1S6i). p. 145; Lake Ngalni
(2nd ed.). pp.210-2ii. 437-436; Alexander. J. E., Ait Expedifioir of Discouery Znto
The Inlerior of Afric~,Through the Hitherto Undescribed Countries of The Great
Namaquas. Roschmans, and Hill Damaras (1838). Val. 1.p. 295: Vol. II. pp.16-117.
' Schapera. The Cambridge Hisfory of the British Empire, Vol. VIII, p. 24;
Schapera. 1..Governmenl and Polilica irr Tribal Socie(1956). p. 17.
' Schapera. I.,op. cil.,p. g; Schapera. The Cambridge Hislovy ot the Brilish
Enrpire. Vol. VIII. p.24.
Dlarshall, L., "Marriage Among !Kung Bushmen", in Afriçn. Vol. XXIX, No. 4
(1959)~P. 336.
' Schapera, The Comb~idze Hislory of the British Empire. Vol. VIII, p. 26.
a Ibid.,p. 25.
Fourie writes in tbis regard with reference to the Bushmen of the Kalahari:
"Children are suckled until they are able to walk well. If a new child is born
while the lastone iç still on the breast it is buried alive in the nearest burrow
or in a hale made for the purpose bythe old woman wbo conducted the labour.
When twins are born, one is invariably killed. It ifor these reasons that it
israre to find familieof five or more children in tho Kalahari." (The Native
TribesO/Soulh West Africa (r928). p.94.) COUNTER-MEMORIAL OF SOUTH AFRICA 3=9

in childbirth. In addition, it was the custom to abandon the aged and
hei~less when a band had to move elsewhere in search of food, ejpecially
in cimesof great scarcity.
status and huntingon success. UsuaUy one of the elderly men was looked
upon as the leader, and there was a weU-balanced relationship among
thevariousindiv~duals of the band.
The social code of the Bushmen was simple, but, at the same time,
weU-adapted to tlieir circumstances. If there \vas plenty, every individual
in the band had plenty. If there was scarcity. everybody felt it.

IV. LANCUACE

58. The Bushmen have a language of their own, which is different
form Hottentot and Bantu, but shares with the former and some of
the latter (Zulu, Xhosa) the phonetic feature of clicks. There are also a
number of Bushman dialccts. Some Uushmen speak Nama (Hottentot)-
no doubt a reminder of the days when Bushmen were the slaves or
servants of tlie more powcrful Nama.
Few people otlier than Bushmen can speak these languages and com-
munication between Bushmen and members of the other groups is, even
today, often a matter of great difficulty.

59. Fourie says the followingabout Bushman religion:
"Except among the groups \vhich ha\.e long been in contact with
and largely influenced by other races belief in a supreme being
would appear not to exist. The partly disorganised +Ao-//;in and
//Aihue groups ofthe Gobabis district believe in a good being named
!Khutse or 'God'and a bad heing calledGüua or 'Satan'. About tlie
nature, however,of these beings they have no idea nor are their lives
and activities influenced to any extent by them. People who die
a 'good death' are said to go to !Khutse and those dying a 'bad
death' to Güz~aT. he former have a good time and live in plenty; the
latter, on the otherhand, often sufferhungeranddistress.Among the
primitive groups a deceased persou is believed to move about in the
form of a ghost at night. Buchu (tsü) is accordingly sprinkled over
not return at night to molest others; further, waterispoured overor
left ai the grave in order tliat the spirit may not interferewith the
rain, and the bow, quiver and arrows of the deceased placed at the
graveside to obviate the necessity of his ghost retuming to look
for them. Everv s~here of activitv in life is influenced by some
superstition or oth'er which, as a iule, finds expressjon in'certain
avoidances or in ceremonial and other rites and practices '."

VI. ECONOMY

60.TheBushmen ofearly South WestAfrica weretraditionally ahunting
people who used to roam far and wide over the Territory in search of

' Fourie, op. cip.104330 SOUTH WEST AFRlCA

game and edible veld foods. The men were responsible for hunting, for
which purpose they used bows with poisoned arrows, and ako, to a lesser
extent, snarffi and pitfalls. The Bushmen were ako able to NU down
game until it was exhausted, when it was kiiled with an assegaai or club.
The women looked after the gathering of plant foods '.
The material culture of the Bushmen was a reflection of their nomadic
existence and simple economy.
The roaming Bushman bands erected shelters of grass, or branches,
which were adequate for their limited needs while the foodin the vicinity
lasted.When they moved, these shelters were abandoned and new ones
erected eisewhereZ.The Mbarakwengo of the Caprivi, Iiowever, developed
hung over poles to fonn a shelter, and when they moved to another spot,
these mats were taken with them.
Traditional Bushman attire was made of the skins of wild animals
which had been softened manually. The women usually wore a small
apron decorated with ostrich shell beads, and other parts of the body
were adorned with bead ornaments. The men wore a triangular piece of
hide drawn between the legs and tied round the waist '.Karosses (blan-
kets made of skins)-where possessed-kept out the cold during the
night. Otherwise, wannth was obtained from fires.
Household articles were of a simple nature, and were usuall made
of wood or clay. Ostrich-egg shells served as containers. nu$-boxes
(tortoise-shelis), pipes and perfume holders (of tortoise-sheli), fonned
the main personal helongings, other than the man's bows and poisoned
arrows and the woman's digging stick. The Bushmen never developed
any form of accumulation, and their economy made no provision for
tlie future.
In some regions frequented hy the Bushmen, water is extremely
scarce during the dry seasons. Apart from springs and waterholes, the
Bushmen had to rely on their own storage tanks (ostrich-egg shells)
and water-rich plants, such as tlie tsamma (colocynthuscitrullus), the
Gemsbok cucumber (colocynthusnaudinianus) and juicy fmit, Iike the
so-called Bushman apples. For this reason bands carefullyguarded their
springs and waterholes against intmders.

F. The Dama or Bergdama

1. COMPOSITIO NSD DISTRIBUTIO NF THE GROUP

61. Physically the Dama are a short-statured, black-skinned negroid
type, and, except where hybridized, quite distinct £romthe light-skinned
Bushmen and Hottentots, on the one hand, and, on the other hand, the
Herero and Ovambo negroids, who helong to the Bantu branch.
The Dama are aiso known as the Rergdama. Bergdamara or Klip-
kaffers, and are given various names, some with an uncomplimentar Y
meaning, in certain of the Native languages of South West Africa .
They cal1themselves !Nu-Khoin, Le., "black people".

' Fourie.op.cit., pp. 98.103:Schapera, The Cambridge Histofthe British:
Empire. Vol. VIII, p25-26.
' Vide para6j. infra.6. COUNTER-MEMORIAL OF SOUTH AFRICA 331

Apparently the Hottentots did not at first appreciate that the Dama
and the Herero were entirely different ethnic groups l.Consequently
the Herero were in early times often called Damara of the Plains, or
Cattle Damara (or sometimes just Damara), whereas the Dama were
referred to as Damara of the Hills or Bergdamara ("Berg" meaning
mountain in both German and Dutch) Z.
62. Very little is known about the earlier distribution and numbers
of the Dama. When first encountered by Europeans in 1791, they lived
in small groups in the rnountainous areas of the Auas, Erongo, Amatja,
Brandberg, Waterberg and Otavi highlands. Their fugitive existence ',
however, took them over a large area in the southem sector of the
country, although the major group has always remained in the central
area of the southem sector of the country.
Vedder 4lists II groups of Dama, and gives their main habitat asthe
areas from Rehoboth northwards to the Erongo mountains, the Swakop
River, Outjo, Waterberg and further north. In later times a few pene-
trated as far north as Zessfontein on the southem boundary of the
Kaokoveld, and on the other hand, many are now to be found in the

southem districts of the Police Zone.
63. Some earlier figures of the Dama population of the Territory
are as foiiows:
Irle 1840 zo,ooo
Irle 1874 20,ooo
South West AfricaAdministration 1921 20,883 '

South West Africa Administration 1939 25,308
It is difficult to sav to what extent these fi..resare reliable. If Irle's
estirnatc; for tli)e<;rs 1640aiid IS;~ arc in any ivay rclii<ble,itwuiild
meari that the Dama population stiu\i.cil practi~ûlly no iri~rcaie 11
rozr. If so. it mav I>can iiiriiùîtiuii of ttic Door livinr! it~iiditions o the
Dama in those e&ly years. It mbst be p6inted ouï, however, that a
large number of Dama perished during the incessant Herero-Nama
clashes and also in the Herero and Nama uprisings during 1903-1907 '.
On the figures of the I 60 census the Dama population, calculated by
oficials of the South &est Africa Administration as a percentage of
the total Nama-speaking population, amounted to 44,353.

II. ORIGIN AND HISTORY

64. Very little is known of the origin or early history of the Dama.
Dr. Vedder believes that they may weli have been the first inhabitants

' Vedder, H., "The Berg Damara", inThe NaliveTriber ofSouth West Africa
(1928). P. 39.
Vedder, op.cil.p. 60.
' Vedder, op.cil.p,.42.
Irle. 1Die Herero: EinBeitvae rur Landes -olks- und .Mirsionskunde (1906).
P. '49.
Ibid. p.52.
' U.G.32-1922, p.12.
U.G. 30-1940. p. 213.
VideChap. III, para. 86,infra.332 SOUTH WEST AFRICA

of South West Africa 1, but, he says: "Impenetrablô darkness lies over

the origin and descent of the mysterious race of the Damas 2". They
were first encountered by Europeans in 1791 , hen one Pieter Brand
made a journey into what is now South West Africa 3.
Many theories have been advanced as to their possible origin. One
theory is that they entered the present South West Africa as serfs of
the Nama (or Hottentot) people, and the mere fact that the Dama
speak Nama proves that they must have had long affiliationswith the
Nama. Dr. Vedder. however, states in this regard:

"The general view is that when the Hottentots anived in South
West Africa. they found the Berg Damaras as the aboriginal in-
habitants, subjected them and forced them to adopt their lan-
guage 4."

This view was held also I>ythe Rev. Hugo Hahn, a missionary who
lived amongst the Dama for over 30 years. He nrote in 1873 that
the Dama inhabited South West Africa long before the arriva1 of the
Hottentots and-
". .. when the invasion of the Hereros took place, about one hundred

and fifty or two hundred yearj ago, they were still to a great exteut
the owners of the mountainous parts of North Great Namaqua-
land, and the undisputed masters of Hereroland, living in large
powerful tribes =".
65. According to al1the available evidence, the position of the Dama
among the other non-White groups in early times was not enviable 6.

As long ago as 1791P ,ieter Brand referred to above. stated that they
ossessed neither sheep nor cattle, that their food,consisted of roots,
Eulbs, berries and wild fruits, and that "they sometimes make useful
slaves to the Namas" '.
To escape persecntion, many of the Dama sought refuge in the moun-
tainous parts of the country: hence also the names Bergdama and

' Vedder, The Native Tribes ofSoutli WestAfrica (1928).pp.qo-q~; Veddei, 09.cit..
p. 107.
Vedder. op. cit.p. 107.
Vide para. 96. infra.
' Vedder. The Native Tribes of South Wesl Africa (1928). p. 41.
' Palgrana's Report. p. 51; vide also the view of Sir Francis Galton. in Pnlgrave's
Report, p. 45.
Vide,cg.. Alexander, op. ci!.\TOI.II. p.133; Vedder, The Native Tribes ofS0ulh
West Africa (1928). p. 39; Vedder, op. cit.,pp. 62, 67, 119, 175; Andersson. C. 1..
Lnkc Ngami (2nd ed.), p114; Schinr, H., Deutsch-Sudmerl-Afrika :Forschungsreiien
durch die deutschen Schutzgebiete Gross-Nama- und Hereroland, nach dem
Kunene. dem Ngami-Sec und der Kalayari. 1884-1887, pp. 123-124; Pn!graue's
Report, pp. 45, 51-52, Manning IO Palgrave, zznd October, 1879, N.A. 287 [Thc
"N.A." cited in this footnote,and in later faatnotes, is an abbreviationfor "Archive
Of the Secretary of Native Affairs, Cape Colony". The correspondence and papers
in the NA. Series are unpublished documents in the custody of the Cape Archives
Depot. Cape Town. which falls under the aegis of the South African Department
of Education. Arts and Science. Together with Quellen ("ideChap. III, p. 65.
footnote 3, infra),they constitute a valuahle sourceof information on the aarly
history of South \l'est Africaj: C.A., O.R., Sinth Sers..Fourth Comm., 244th
Meeting Ir Jan. ,952, para. 9.p. 290; Schapera, The Cambridge Hisiory of the
British Empire. Vol. VIII. p. 39.
' Vedder, op. cit.p. 35. COUNTER-IIIEIIIOR IALSOUTH AFRICA
333

Klipkaffer. ("Klip" in Dutch or Afrikaans means "stone" or "rock".)
I'edder writes in this regard:
"It was hardly from choice or predilection that they lived in the
mountaius. As most of them possessed goats, settlement in the low-
lands would have suited their purposes better. Since, however, they
were violently persecuted in the lowlands, their only protection
and security lay in the mountain fastnesses. Wherever they found
them the Hereros killed them with their ICieria ensd,at the hest

of times cast their young men into perpetual slavery, as herds and
menials. The Hottentots exterminated complete sibs . . . They
seemed to regard a free Damara as a reproach against the Hottentot
race. They looked upon the Berg Damaras as runaway slaves and
subjected to slavery every serviceable man '."

Elsewhere Vedder writes:
":\s alrend!. nicnrioned th<: Hottentots and Hcrcruj in olclen
timcs rcg:ir<li.(rlir:I{i!rgI)ain<ir.i; li\.iiig wirhin their reach:i<rlicir
r.zlitful scr\,aiiri'l'litUcrg U;ini;ir& \vliu li\.cd frcc iiitlic nioiiii-
ta'inswere a source of annoyance to them. The Hottentots regarded
them as incorrigible stock thieves 2."

T'arious names given to the Dama by other iiidigenous groups show
in what contenipt they were apparently held by such groups. The
Dama, as stated before, called themselves !Nu-Khoin, or black.people ).
The Xama, however, called thcm Chou-daman, which can be translated
as dirty blacks, choub being the ordure of men and birds, and daman
meaning "black people". The name has also been translated as Dung-
Dama, or Dirty-Dama'. The Herero called them Ovazorotua, trans-
lated by Vedder as "black bondsmen" or "black slaves" 5.
On being asked in 1837 by the British explorer, Sir James Alexander,
about their relations with the Herero, a Bergdama chief replied as
follows: ". . .they are our enemies; they are black like ourselves; but
they speak a different language; . . . 6"

' Only with the coming of the White man waç the Damas' position
improved. They were only finally freed from oppression upon the defeat
of the Nama and Hereroin 1go4-1go7 '.

III. SOCIAL AND POLITICAL ORGANIZATION

66. In olden times, the Damas' "hunting and collecting" economy
compelled them to live in smaU groups, usually consisting only of
families and Dama social and political life therefore came to be

' Vedder, The Nalive Tribcs of South Waal Atrica (1928)p. 39.
Ibid..pp. 42-43. l'idealso Scliinr,op.cil.p. 124.
Vedder, The Native Tribes of South West Atrica (1928)p. 40.
' Ibid.,pp. 39-40, Vide alço Alexander. 09.cil.Vol. II. p.r3G.
Vedder. The Native Tribesof South West Africa (1928).p. 40.
Alexander. op. cit.Vol. II, pr33 Vide alsoManning foPalprove. ~2ndOctolwr,
1879. N.A. 287.
' Vide Chap. III. para86. infraand alsoVedder. The Nnrive Tribes of South West
Africn (19281;pp. 43-44,
Vedder States "Thereis no place in a BergDamara village for thosewha do not
belong to the farnily sib".(The Natiue Tribes ofSouth West Africa (1928). p. 48.1 334 SOUTH IVEST AFRICA

organized on the basis of individual kin groups '. Polygamy was quite
common, men with five or more wives being found 'hot seldoin" ac-
cording to Vedder 2.Each family group functioned as an independent
unit, and within each unit authority was exercised by the family

elders, who were also the possessors of the holy fire '. Social and political
organization on a wider bais only came into being with the estabiish-
ment of the Dama Reserve in the Okombahe area '.
The Dama also never dereloped any real judicial system or judicial
institution. Life was controlled, and justice was administered. by the
family elders who-
'. ..consult at tlic bol!. tirc coiicerniiig e\.erything \\.luch nia!. con-
tribiitc to the \iclfnr,: of the \.illacc and discuis al1inexsures wl~ich
have to be taken to prevent disaGers or to deal out punishment

The reason for the Damas' failure to evolve anything iike a real legal
system no doubt lies in their early unsettled and servile existence.
Vedder says in this regard:
"When 1commenced. two decades ago, to enquire as to the laws
of the Berg Damaras, my questions were not understood even by
intelligent Berg Damaras wbo were well versed in the lore of their
people. 'An object, such as a Berg Damara has not anything likea
law' 'j."

According to Vedder-
"The only mles which may be regarded as having the character of
law are those regulating inheritance. Smali as the perçonal posses-
sions may be, there are nevertheless fmed ml? according to which
they pass from one to another. The mle prescnbes that thedaughter
may inhent from the mother but never hom the father, and the
son from the father but never from the mother7."

67. In iS70. on the urgent reprejeritations of miisii~n?ries,a tract of
1:rndwasb~anted to a irumbcr of Uergdama at Okomhahc in the Omsrum
dijtriit by the Herero chief at Oiiiaruru, who nc\.erthclcsj atill considered
them Iiis subjecrs. In 18gj thc Hercros agreed to cede tlus are&to the
Grniisii autlioritics for tlir use of the Uergdama '.
In the Okombabe ara. one Cornelius Gorajeb succeeded iridevel-
oping some form of central organization amongst the Dama who were
resident there. As headman with the assistance of a Council of Five
Elders he ke~t the Dama toeether durine the wars of 1880 to 1802 >
between the ~erero and the Gama 9.
After the Herero War of 1904 the Bergdamas, as a reward for assist--

Vedder, op. cit., ppqî.48;Schapera. op. cil., pp. 917.
Bergdama,r,Part 1 (1923)p.. 39.f South Wcst Atrica (1928)p .. 55;Vedder, Di8
3 Vedder, The Native Tribes of South Wcst Africn (1928)pp. 48,68-70; Vedder,
South W~stAfrica in Eovly Timcs. trans. and ed. by C. G. Haii (1938).pp 61-62.
+ Vida para. 67and Chap. III.paras. 73 and 86.intra.
' Vedder, The Native Tribes of South Wcst Africa (1928)p..72.
Ibid.,... .0-.1.
' Ibid., p.71.
8 Hailey. op. cil., pp. 34-3Pdprmc's Report. p. 51;Vedder. The Notivc Tribas:
of South WrstAfriu (rg28)p.p.43-44,
As to which vide Chap. 111,paras. 39-47,52-5 6.-69. COUNTER-MEMORIAL OF SOUTH AFRICA 335

ance given to the Germans, were confirmed in the occupation of the
Okombahe area, which was constituted a Bergdama reserve '.

IV. LANGUAGE

68. Nothing is known of the original language of the Bergdama. The
language they speak is Nama, presumably adopted from the Hotten-
t.ots who enslaved them in remote times 2. Stow says in this regard:
"Thus, whilst they possess the physical characteristics of the
Bantu nations, and are as a mle even blacker than the Ovaherero
and although they are as differentin colour and stature from the
Hottentots as it is possible for two races to be, still we find the
remarkable fact that one language is common to both peoples. The

territory whichthe Namaqua (Hottentots) inhabit isentirely separate
from tbat of the Berg-Damara, stiii none the less is the language of
both nations the same ... Here then ive find in this one race
distinctive features which characterise the other three, still, not-
withstanding these separate points of similarity, the Berg-Damara
are a nation by themselves, and apparently quite distinct from
the Ovaherero, the Namaqua, and the Bushmen 3."
Not only their language disappeared, but also most of their traditional
c:ulture. As Kohler says:

"In the obviously long period of their serfdom, the dependent
Bergdama appear to have given up many of their customs in the
same way as they gave up their own language and adopted Nama.
What the independent Bergdama hadpreserved of their traditional
culture seemed to have little strength to survive and began to
fall into decay by the end of the 19th century '."

69. The old religion of the Dama was a vague monotheism Many

Dama are today converts to Christianity (mission work among them
a.major part in their lives 6, but superstition and witchcraft still play

VI. ECONOMY

70. The Bergdama's economy in olden times was probahly little less
primitive than that of the Bushmen 7.They could not maintain them-

Hailey,op. ci!., p. 35:Vedder, The Native Tribes of South West Africa (1928),
PP 43-44.
Vedder, The Native TribeofSouth West Africa (rgz8)p.p.41-42,
' Stow, G. W., The Native RacesofSouth Africa (1905)p.257.
Val. 6,No.,z(1956)p..138;Vedder. The Native Tribes ofSouth West Africa (1928).s,
r."A.
' Vide I'edder, The Native TribofSouth West Africa (1928)pp.61-70;Vedder.
op.cit., pp. 63-67.
Hailey,op.cit., p. 34.
' Vedder, Thc Native Tribas of South Wast Afriu (1928. 42.336 SOUTH WEST AFRICA

selves against the Hottentots and Herero who entered South West
Africa after them and, as noted above, became the servants and slaves

of both these more powerful groups '. As Hailey says:
"... they had to yield to the growing pressure from the Hereros,
and al1 their later history shows them as the bondsmen, or at all
events as the unpaid servants of others, holding nowhere any
territory of their own, possessing only snch stock as their superiors
aliowed them, and adapting their costume and their customs to
those of the people whom they served 2".
The economy of the Dama was that of hunters and foodgatherers.
Vedder States in this regard:

"The Berg Damaras of the veld, Le.,those who are still untouched
by European influence and live according to the manner of their
fathers, subsist on the wild fruits of the veld and the spoils of the
chase 3."
As stated before, many families were at an early stage forced into
the service of Kama and Herero, and in later years many took up em-
ployment witli Europeans, which gave them a more settled form of
existence. In the Okombahe area they tumed to stock farming, and
they soon possessed substantial herds.
The Dama of old had no concept of land ownership in either the
individual or communal sense. -4s Vedder says:

"Not even the tribal area is regarded as the property of the tribe.
Al1that is claimed is freedom of hunting and.of g.thering of vddkos
with which to supply daily wants +."
In the circumstances it is clear why land rights conld play no part in
the mles as to inheritance. In this regard it may be noted, as a point of
interest, that a Bergdama house is, by tradition, the property of the
wife, and not of the husband
Clothing was of a very simple nature, consisting of skins 6. Possessions
were few and primitive. Bergdama dwellings were made of branches,
twigs and grass 7.

G. The Hottentots or Nama

71. Reference has been made to the interaction and conficts between
tlirIlottriitots and orhcr group; diiriiig [lie nint-trïiitli centiiry O. 'flir
prcsenr srction \\.iltliercfore litd,.vortrl to a discus=ioii ul thc dz\.cl-
u mcnt of the Hottciirots iip ro tlic end uf tlir riglirccntli cenrury. Any
cfaiiaiifis r furtlier de\.clopmcnr: of iiiil>ortnncc occiirring diiiiiig t1.c
ninrteeiith crntury \\.illbr <Ic~lt \i.itliiitli,.ir lujturicnl conttut in Cliap-

Vedder, op. cit.. pp39-43.
Hailey, op. cit., 33.
Vedder, The Nntivc Tribes of South Africa (1928).
* Ibid.. p71.
' Ibid., pp.48-49.
Ibid., p. 57.
' Ibid., p48.
Vide para. 2,sufiva. COUNTER-MEhlORIhL OF SOUTH AERICA '337

ter III. inlra. III additiori. the position of tlie Hotteritots irnmzdiately
prior ta tliiassuniption of the >Iand:ite. \vil1be summarized in Chapter

II. COMPOSITIOD NI,STRIBUTIO ANND EARLY HISTORY

72. The Hottentots are a short, yellowishbrown-skinned people, with
dark eyes and short, woolly and sparse hair. They have prominent
cheekbones, smaU receding chins, and Bat noses. Their general bodily
build and colow resemble those of the Bushmen 2,although the Hotten-
tots are taller, with longer, narrower and higher heads, and more pointed
and projecting faces '.
Schapera States:

"There is little doubt that they are of the same original stock
as the Bushmen, but have obviously been affectedby the incorpra-
tion of alien blood. It is now generally held that they owetheir origin
to the mixture of Bushmen with early invading peoples of Harnitic
stock from whom they also acquired certain distinctive linguistic
and culturalfeatures. Cousequently, although Bushmen and Hotten-
tots belong to the same great ethnic division, for which the name
'Khoisan' has . ..been coined ... they have becorne sufficiently
differentiated to be regarded as two separate groups '."
73. 1t is believed that the Hottentots lived originaÏly somewhere in
the reaion of the Great Lake of East Africa. Presumablv as a result of
pressGe from the north by the Bantu, they gradually mived south-west
across central Africa until they reached the Atlantic. Then they turned
south, crossing the Kunene into what is now South West Africa. The
migration continued down the west coast across the Orange River and
into the present Cape Province right down to the Cape Peninsula.
Thereafter they moved eastwards along the coast until their outposts
reached the Unitamvuna River on the south coast of Natal 6.
At differeutstages on their route muth of the Kunene, sections of the
people remained behind, each of which grew into a separa!e tribe. Thus
in South West Africa, a number of different Hottentot tnbes inhabited

parts of the Territory prior to the advent of the Hereros '.They are
often referred to as Nama, after their language. Sirnilarly, Hottentot
tnbes were found by the early European settlers in various parts along
the coastal stretches of what is now the Cape Province
As the Hottentots advanced, the Bushmen were generally driven from
the fertile plains to the mountain fastnesses of the interior, and, on the

Vidc Chap. III.para. 85, infra.
Vidc para. 52. supra.
3 Vedder, H.. "The Nama". in The Naliv~ Tribes of .foulh 1V6slAfrica (1928).
pp. log-Irz:Vedder. op.cil., pp. 51-5119-1'23.
Schapera, The Cambridge Hislory of the British Enzpire.V111. pp.20-21.
3 Originallyknown by its Nama name "Garib River".
Schapera, Th8 Cambridg~History of Ihe British Empire. Vol. \'III. pp. 28-29:
Vadder, The h'atiue Tribcr of South W~rtAfrica (1928). pp. 112-riS.
' Vedder, The ,VafiueTribcs of South West Africa (1928). pp. 114-115.
VIII,bp. 28.p. 113.114; Schapera. The CambridgeHirtory of th8 Brilish EmVol..338 SOUTH \'EST AFRICA

whole, relations between the two groups remained unfriendly or hostile l.
As noted above, the treatment meted out to the Bergdama was no
better 2.
74. The early population estimates for the Hottentots cannot be re-
garded as accurate, but in order ta give a broad indication of their
numbers, the following figures may be referred to:
Palgrave
1876 16,8503
German Administration 19x3 14.591'
South West Africa Administration 1921 ~1,000 5
South West Africa Administration 1939 20,733
1960 Census 1960 34,806

III. LANGUAGE

75. AU the various Hottentot tribes spoke one of four closely re-
lated lanyages, of which Xama, spoken by the tribes in South West
Africa, was one These languages have no clear afinities with other
languages of the Continent, except stmctural ones with distant groups.

The pecuiiar feature of click sounds is shared with Bushman afid some
southern Bantu languages 9.

IV. ECONOMY

76. The Hottentots were nomadic pastoralists. They had no agricul-
ture. but depended on their herds-cattle, fat-tailed sheep and goats-
and, ta a certain extent, ah on hunting and collecting 'O.Each tribe
had what it regarded as its own territory in which to graze its herds,
and in which no strangers were ailowed without special permission ".
As pastoral nomads they had no opportunitv of building permanent
structures or of accumulating any material things beyond such arms,

tools and ntensils as they conld carry with them on their wandenngs lZ.
The tribal country was communal property, and a system of individ-
ual ownership of land did not exist 13.The various groups laid special

' Vide in general: Schapera, The Cambridge Histovy of the Brilish Empire, Vol.
VITI. p. 28; Fourie. The Nafivp Tribes of South West Africa (~928). pp. 82-84 and
Vedder. op. cil.p. '24.
Vide para. 65, supra.
* Diegrdeulschen Schutrgebietc i>i Afrika utid der Südsea rgrz/rg13.-Arntliche
Jahresberichte, Herausgegeben vom Reichs-Kolonialamt (1914). Siafirtircher Teil,
P. 46.
. ~U.G. 32-1922, p. 12.
U.G. 30-1gq0, p. 213.
' Calculated by officiaof the South \\'est Afnea Administration as a percentage .
ofthe Nama-speaking population.
Schapera, The Combvidge Hiriory of the Brilish Empira. Vol. VIII, pp. 28-29.
Vedder, op. dt.. pp. 5657. rrg-121.
'OIbid.. pp. 51, 53: Schapera, The Ca+nhridgeHistoryofIha Brilish Empire, Vol.
VIII, Pp. 30-31.
''Schapera. TheCanibridgeHi<foryof,lbe British Empire: Vol. VJII, pp. 30-31.
l2Vedder. op. cil.. pp. 52-5127.
Vedder. The Na!iv~Tribes ofSouth West Africa (1928). p. 144; Vedder, op. cil.,
P. 54. COUNTER-MEMORIALOF SOUTH AFRICA 339

stress on their sole rights in regard to certain Springs and waterholes.
To the Hottentots, tribal lands were closely connected ivith their an-
cestors, a concept which stimulated a ritual procedure, connected with
water, when certain areas were visited '.
Althoua- tribal land was reaarded as common ~ro~er.v whAreon aü
iiienil>~.rjof tllc group concernëd could ino\.e freefy, \vater tlicir cattle
and p~rtake uf the fruit of the \.cld, the idca of individual owncrshi~ {vas
in oiher respects not unknown 2. Individuais and families could aÊquire
movable property, such as stock, and an individual who had dug a
waterhole had a prior nght to its water. Among the Topnaars (a tribe
in South West Africa) a person or family could have pnvate rights
over certain nara bushes, which are peculiar to the area in which they
lived.
Inhentance followed the male line. The eldest son was the principal
heir, and it was his responsibility to guard over the generai interests of
the family. The widow. and al1the other children. were also entitled to
a share of the estate '.

77. The social organization of the Nama, as descnbed by Hoenil&
in 1925 ',functioned within three weU-definedunits, namely the fady,
the clan and the tribe. The importance of kinship was evidenced by the
fact that near kin tended to congregate on the same wmf 5.
Numbers of kinship groups were organized into a clan 6,Le., people
who claimed a common descent in the male line from an original pro-
genitor. Members of a clan tended to live together in the same area, and
the clan was in fact the strongest cohesive unit attained by the Nama.
Very often individuai clans broke away from the greater body, the
tribe, to form an independent unit, thus actually forming a new tribe7.

78. The tribe consisted of a number of clans and iormed the largest
unit in Nama Society. The tme Nama distinguished eight units of this
nature. and the Orlams Nama five, each with its own name Within
each tribe there was a senior clan which provided the tribal chief, and
within each clan a senior family which provided the clan head, both
offices being hereditary from father to son. The central authority in

the Nama of South West Africa". in TlreSouth African Journal of Science, Val. XXg
11923).PP. 514-526.
Vedder. The Native Triber of South West Africa (1928), p. 144: Vedder, op. cil.,
1>.54.
Vedder, The Nativ~ Tribea of Sorith lVest Africa (1928). p. 145.
' HoernlB. A. \\'."The Social Organization of the Nama Hottentots of South
West Africa". in Americon An!hropologisl. New Series, Vo27 (1925) [repnnted by
Kraus Reprint Corporation, New York. 19621. pp. I-?+
' Schapera, op. cit., p. 30.llings were erected.
' Vedder, op. cil.. pp126.131: Schapera, The Cambridge History of the British
Empire, Vol. vrrr,pp 29-30,
Wedder. The Nolivc Triber of South ives1 Africa (1928). pp. 1.4-118; Vedder.
<>Pci.!p. 128. On thedistinction between truc Nama and Orlam,vida para. 79. inira.340 SOUTH WEST AFRICA

each unit consisted of its chief, or headman, together with a body of
councillors, composed of leading elders wvithinthe group '.
The politid authority also acted as the body which administered
justice. Each group had its body of customary laws, and disputes were
usually resolved by local councils. Appeals were heard by the central,
or tribal, authority. In important trials the tribal counullors acted as

judges 2.
79. During the eighteenth century, a number of Hottentot tribes
moved north out of the Cape Colony (which was until 1795a
sion of the Dutch East India Company) in the direction of Sout WestY"-
Africa. These tribes, who are geuerally called the Orlam Nama, found
it impossible to live their former nomadic pastoral lives in the more
settled areas of the Cape, and in many cases their numbers were in-
creased by fugitives from justice. During the first part of the nineteenth
century. some of the Orlam Nama tribes settled in South West Africa3.
whence their ancestors had come generations back. The Orlam Nama
tribes showed many signs of European influence in their organization
and customs4. Thus their chiefs were called by the title of kaptein,
and the lieadmen became a definite body of councillors to whom the
term raad was applied. The raad was the goveming body. and it con-

stituted also the judicial tribunal both for criminal and civil purposes.
In addition certain officials on the European pattern were appointed,
such as the sub-chief (onderkaptein), magistrate (magistraat), the
chief field cornet (hoo/dveldkornet), and later among the Christian
groups, the elders (ouderlinge). There was a growing tendency under
missionary influence to reduce their constitutions to writing. Some of
the Orlam Nama had also adopted the Dutch language 5.
80. By the end of the eighteenthcentury,six of the original Nama
tribes in South West Africa were joined in a loose alliance under the
leadership of one of them, calied the Red Nation 6. According to
Vedder ',this alliance was originaiiy formed as a direct result of trouble
with the Bushmen and Bergdama.

H. The Herero

1. COMPOSITIO DNI,STRIBUTION AND EARLYHISTORY

81. The Herero population of South West Africa is composed of
various sections, known as Herero, Mbandem. Tjimba and Himba
In the course of this survey. aU references to the "Herero", should,
except where the text or context indicates othenvise, be taken to include

' Vedder. The Native TribeO/South West Atricn (1928)pp. 142-t45S;chapera,
The Cambridge History of Ihe British Empire, Vol. VIII30..
Vedder, The Native Tvibas of South West Africa (19pp. 142-145.
3 IIbid..pii6.
Ibid., pp. 115-118.
Haile,.,4.ci!..< 71.
Vedder. The Native TribeO/South Weal Africa (~928)pp.I14-115.
' Vedder, op. cit., p. 128.
Vedder. II."The Hercro", inThe Nntive Tvibas ofSouth West Africa (1928).
p. 155; van Warmrlo, N. J., Noteron thc Kaokoveld (South West Atrica) and its
People,Ethnological Publications. S26 (1951)p.p.9-12. COUNTER-MEMOR IFLSOUTH AFRlCA 34I

ali the various sections. and. as in the case of the Hottentots '. the
present discussion will be confined to developments up to roughly the
end of the eigh-eenth centurv, leaving subsequeut events for future
treatment 2.
The Herero belong to the southern group of Bantu peoples 3. They
have negro-type crinkly hair, chocolate brown to dark-brown skin
colour, and, for the most part, a tall and slender build '.
The following population figures give some indication of their num-
bers:
Irle 1874 90,000(Herero 70,000,
Mbanderu zo.000) "
Palgrave

German Administration 1913 21,699 '
Vedder 1928 33,000 (Herero ~~,ooo,
hlbanderu 3,000,
Tiimba <.ooo)
196~~ 44 j'0 ('ï'ht:~lHcrcro,
3lhndt.r~. llimba and
Tjimba) 9
82. According to Herero tradition, their forebears originally lived
in the "land of fountains", west of Lake Tanganyika, whence they
emigrated to the south '0. It is believed that this southward movement
began in the sixteenth or seventeenth century, and that the Herero
reached the upper Zambesi by about the middle of the eiglGeenth
century. From there, it is believed, they moved westwards until they
reached the sea, and nien downwards into the Kaokoveld". Some writers
are of the opinion that they entered the Kaokoveld from the direction
of Bechuanaland, urhere they had lived for some time until they were

defeated bythe Rechuana~'~.Precisely when they entered the Kaokoveld
isnot known, nor is it known for how long they remained there before the
main body of them later moved southwards. In any event, it is known
that the Mbandem section were living somewhere east of Okahandja and
north of Gobabis by about the middle of the eighteenth century, and
that the Herero, properly so-called, had not left the Kaokoveld by about

' Vide para.-jrsupra.
In Chap. III,infra.
Schapera, The Cambridge Hisfor,~01fhe British EmpireVol. VIII. p.36.
' Vedder. op. cil., p. 45; U.G. 4i<~?iipara. 48, p. iz.
'Irle, op. cit., p. 52.
P~lgravc's Report, p. 53.
'Die deulschsn-Schufigcbictc in dirikund der Südree. rgrz!1gr3, Slnlislischev
TeilVedder. The h'ntive Tribes oi South West Africo (19p.)156.
1960CCTISU (tS~npuùlished)
'OVedder, op. cil.. p. 134. Palgraue's Heporl, p. iq, U.G. qr-,9para. 47. pp.
I:I-IZ.
" Schapera, The Cambridge Histo- of the Brilish Empire,Vol. VIII. p. 39;
Pnlpvc's Report, p.45; Vedder, The ~Val;vcTribcs 01Smrth West Afrira (rgz8).
p. 156.
Vide Vedder, op. cil., pp. 133-135.342 SOUTH WEST AFRICA

1790 '.The Himba and Tjimba sections remained behind in the Kaoko-
veld when the main bodv of immiar-nts moved south Z.
83. The Herero were stiU in the Kaokoveld when they gave an indi-
cation of what their future relations with other groups in the Territory
were going to be. Vedder savs in thisregard:
- - .
"As soon asthey became prosperous they became arrogant. They
felt that they were strongenoughto try a fall with the Ovambos who
lived to the east of them. A raid was made into Ovamboland to get
Ovambo cattle. But the Ovambos were stronaer than the Hereros,
for the se~arate tribes had chiefswhom al1the Üeo~leobeved to aman
while théHereros did iiot have a common comkander or leader "."
84. Their procedure in occupying the new areas south of the Kaoko-
veld was described as foliows by Andersson, the Swedish explorer and
scientist ', who lived among the Herero for many years and assisted
them in their wars against the HottentotsJ:
"... they [Le.,the Herero] invaded the country, then inhabited by
bushmen and Hill-Damaras, the last being in al1 probability the
aborigines. Not having a warlike disposition, the Hill-Damaras were

easily subdued, and those \%.ho were not killed were made captives.
The few that escaped took refuge among the mountains, or other
inhospitable and inaccessible regions. where they are still found
dragging on a most miserable and degraded existence 6."
And, in regard to the relations between the Bushmen and the Herero,
Andersson said :
". .. botli parties were in the tinbit obutclic~ngeachotherindiscriin-
i~iately (men. wonien. and ctiilrlren) \vIi~iit.\~erail opyorliiiiity
oicurred forgr.itifying tlieir iriutuai hatred '".

II. SOCIAL AND POLITICAL ORGANIZATION

85. The basic determinants of traditional Herero social organization
are totally different from those of any of the other indigenous groups.
They are hased on a system of double descent, foran individual belongs
to two social entities, namely the oruzo (plural otuzo) of his father
and the eanda (plural ornaanda) of his mother 8. "Thus the Herero is a

member of two groups; . ..Both these groups have their ordinances
and laws 9."
The oruzo, membersbip of which is inherited through the father, is
predominantly a religious concept, centring around the ancestor cult
and the sacred îke. There are about 20 such otuzo, each with its own
name. People belonging to the same oruzo tend to live together, the sacred

Van Warmelo.C. op.dl., p. ro. (2nd ed.) pp. 218-219; Palgvaue'sReport.p. 45.
Vedder, op.cil., pp. 136, 140.
'Andersson, C. J.. Notes of Troucl in South Africa (1875). pp. 91-92, 331-338
' Vide Chap. III. paras.22 and zq.infra; Andersson. C. J., Notes of Tvauel in
Soulh Africa (1875). pp. 64-r-25.
Andersson. C. J., Lokc Ngami (2nd ed.). pp. 2r8-219:aidealso Vedder, op.cil..
A.. n". 1.1.
' Andersson. C.3..Ths OkauangoRiver (1861). p. 145.
Vedder, The Nafivc Tribcs of South Wcsl Afriea (1928). p. 185.
Ibid.p. 186. COUNTER-MEMORIALOF SOUTII AFRICA 343

fire being the centre of the oruzo-community. The oruzo, however, also
has a practical significance in the sense that it has its own property.
which is inherited only within the oruzo,and thatit isguided by laws and
traditions which originated with the ancestors 1.
The eanda, membership of which is inherited through the mother,
is a social concept and einbraces an exogamous eutity. There are six
principal ornaanda. Each lias its own property, which can only be
inherited through the mother, i.e., by brothers hy the same mother, by
the mother's brother or by the son of the sister of the deceased bom of
the same mother. The eanda, therefore, also has considerable significance
in ordinary social arrangements 2.
The oruzoforms the basis of local groupings, since maniage is virilocal
(i.e., wife living at husband's home), and oruzo-kin tend to congregate
together. A family settlement. therefore, consists of oruzo-related males,
their wives (Herero marriage is traditionaily a polygamous institution)
and children. In a pastoral community such family Settlements are
small 2.
'Bilateral descent, as found amongst the Herero, is unknown amongst
the other ethnic groups of South West Africa and Southem Africa 3.
It cannot be widened in scope, and it can only exceptionally he applied
to non-Herero who might wish ta become Herero, since norrnally only
the children of a Herero father and Herero mother can possibly belong
to one of the recognized patriclans and matriclans. The number of
these is very small and known to everybody, and every Herero can
define precisely where he stands, genealogicdy, in the framework of
the whole Herero system. There is hardly room for interlopers, joiners,
new citizens: the Herero people can only regenerate itself from within.
:inthis sense it is the perfect mode1of a "Chosen People": hy immutabie
iaw, ordained from the beginning, al1humanity consists only of Herero
and Strangers '.

on Tpractically every subject, is only to be expected.g of the Herero

86. The Herero never developed a centralized political stmcture with
a paramount central authority j. Hererodom simply meant a loose con-
glomerate of factions, each in itself independent, and headed by an
ornuhona who was both leader and priest, and whose powers derived
from his possession of the holy fire, and his wealth. The basis of organi-
zation was religious cult within the oruzo, and since there were several
such sections, none in reality being senior or paramount, the development
of central authority was not possible6. As will be seen hereunder, the
lack of central political authority proved ta be a great disadvantage in
the wars between the Herero and the Nama 7.

' Vedder, Tha Native Tribcs of South Wcrl Africa (1928). pp. 156-187.
Ibid.. p. 187.
' Murdock. G. P., Africa: Ils Peoples and Their Ct~llureHistovy (1959). pp.
5;*2-373.
liererdof Ngamiland", in American Anlhropologist. Vol. 58. N1(1956).pp. 109-139:
Vedder, op. cil.. pp. 49-50.
' hlurdock, op. cil.. p. 372.
Vide Andersson. C. J., Lake Ngapni (2nded.), p. 198: Vedder. The Natiuc Tvibas
of South West Africa (1928). pp. 187-190.
' Vide Chap. III, infra, and Palgrave's Report, 16.344 SOUTH WEST AFRICA

Before the advent of German influence, the Hereros had seven recog-
nized chief-priests. There were also others who were less significant.
In the Kaokoveld there was none of any importance :. None of these
chief-priests, or "cattle kiugs", was in factparamount 2.
Thestatus of priest-chief was hereditary, passing from father to eldest
son, but only with the consent of the councillors 3.The officeof councillor
was regulated by law on a hasis of relationsliip and property as well as
persona1 attributes. Chiefs and councillors discussed tribal matters at
the holy fire '. The power of administering justice \vas vested in the
chief, together with a feweminent men who served as judgess. According
to Vedder :

"\Yheii tliz eviclcnceof \vitncis~ ishenrd in:iiiyoaths nrz ttikcii .. .
'i'tieyjivcnr t~ytlie ;in~.estralgrivc. rhc inissionan. tlic cliurcli. the
huiies of the fatlier. tlie head-rnr or tears of ttie mutlier. liclvcn. tlie
colour ofthe oruzooxen ... ",
87. As mentioned ahove, the Herero took an exclusive view of their
national or ethnic groupa Herero could normally only become one
by hirth. But even this essential qualification was not enough; even
children boni of Herero parents had to be presented to their departed
ancestors, and made legitimate and accepted memhers of the lineage
by certain rites. An infant was introduced to its ancestral spirits at the
sacred hearth with prayer and the sprinkling of consecrated water by
the family priest, and there given its name. Its navel cord \vas kept in
a hag hy the head of the family, together with a thong in which there
was a knot for each member of the family. The knot was untied when
the member whom it re~resented died or hecame a Christian-which
\ras considered to :imount to the samc thiiig :.
\\'hm 3 cIiiIcItiitd got itspermanent teetti. ttie Hcrcro narioilal niark
of fr,snttrcrli iii\itil;ition wns iirmnir. r\s sosii;fi:$iiiimber ofctiildreii

were ready for this operati&, it ;vas performed at the sacred hearth.
A v-shaped notch was fded hetween the upper middle incisors, and the
two or four lower incisors were knocked out with a chisel or stick, a
Stone heing used as hammers. In the Kaokoveld the custom was to
knock out only the two middle incisors. Such tooth deformation was
not for the sake of adornment. but was deemed an essential mark of a
Herero 9.
Another mark of memhership of the Herero people was circumcision,
performed hetween the ages of 6 and IO, but often much later 'O.There
were attendant rites, and the circumcised lads had to live in seclusion
for a long time. Those who were circumcised together formed an asso-
ciation. They called each other "CO-eval",and were ohliged to help each
other in certain ways 9.

' Vedder. The Nolivc Tvibcs of Soufh Wesl Africn (i928). p. 166.
Vedder. Th6 Naliue Tribes-of;South West .ifriça (1928). p. 188.
' Ibid.n. 189
Ibid.*P. 19.5-196
Ibid.bb .96-19,.
' Vedder, The ~ValiucTribes of South West ..l!rico (1928). p17b. 190.
Andersson, C. J.,Lake Ngami (2nd ed.). p. 226:Vedder, ï'he Natice Tribes 01
Sou!/W *est Afuica (1928). pp177-178.
Tredder.The A'nfiueTribesof Soulh West Africa (1928) .. 178.
Io Andersson. C. J.. Lake Ngami (2nd ed.). p.225.34b SOUTH WEST APRICA

of the family '.The main basis of Herero existence being their Iierds 2,
these were hedged round with the strictest imperatives of the ancestor
cult. Most of the animals which a Herero owned were actually not his
personal property at all, but, having heen inherited from his ancestors,
were held in trust for them on behalf of their descendants in the family.
Cows were aliotted to each memher of the family, young and old, who
therefore knew that his daily sustenance derived from the bounty of his
ancestors, who had carefully nursed the family wealth, and who expected
him to do likewise. The legendary covetousness and parsimony of the
Herero with regard to cattle were therefore fonnded on conceptions that
went very deep indeed. Their devotion to their stock had the same
origin 3.

go. The Herero of early South West Africa were pure pastoral nomads.
III fact, they were the only Bantu nation in Africa who did not practise
agriculture but pursued a life of independent pastoral nomadism +.Of
their early history in the Territory they themselves say that there was
nothine more to it than trekkine from one erazine area to-another and
cluarrefling\i.itliothcr people ovc; watcr and Pasture. Thcy irere priinnrily
a c:tttlc-owiiiiig people. bu1 alsu kept sticc~,:inil go;its '.l'heir Iarg: tierds
of cattle imvrcssed earlv Euroncan tra\,éllrrs iiittie Tcrriiorv. and wtre
also the enGyof raiding'~otten'tot groups. As stated before, cattle played
an important part in the social and religious life of the Herero, and
because of a peculiar spiritual attachment to tbeir herds, they rarely
parted with or slauglitered a beast 6.
Apart from planting a patch of tohacco here and there they did not
utilize the soi1 for agricultural purposes. Their herds always provided
the necessary suhsistence in the form of milk and meat, and skins served
as clothing 7.
Land and grouiid were regarded by the Herero asbelonging to the
community or tribe. Individual rights were only recognized in regard
to movahles, i.e., cattle, goats, sheep and household or persona1 pos-
sessions. Such movahles were, asstated before,inherited either through
the oruzo or through the eanda, as the case might be. Usually a tmst-
worthy person was appointed as administrator of the estate, and very
often a deceased would. before his death. have .~~ressed his wish that
provision be made forfivourites 8.
The pastoral economy of the Herero compeiled them to live in small

Andersson. C. J.. Lake h'ganzi (2nd ed.), pp. zzr-zz3; Vedder, The Nalive Trib~r
O/ Sor<fkWcsf Africa (1028).pp. 166.175.
12-13,dersson. C. J.. Loke Ngomi (2nd ed.), pp. 114-115; Palgrove's Report, pp.
' Vedder, The Native Triber olSoufh West Africn (rgz8). pp. 169. i79-i80. 183-184.
186. 194-195; Vedder, op. cif., pp. 47-50.
Murdock, op. cif., p. 370.
' Ibid.; Vedder. op. cil., p. 145: Andersson.C. J.. Lnkc Ngami (2nd ed.), pp
114-"5, 217-220, 232; Palpra~e's Rsport, pp. 12-13,
Vedder. The Native Tribe~ of Sotglh West Africn (rgz8). pp. 152-183: Vedder.
op. di..p. 50.
' Vedder. The Native Tribes of Soufh Ives1Afri~rr(1928). pp. 181-183.
Ibid.. pp. 193-195; Vedder,op. ci$.. p. 46. COUNTER-&lEMOR IALSOUTH AFRICA
347.

groups. A werf, or family settlement, was limited to people who were
related, and unrelated farnilies did not live in one werf '.

1. The Rehoboth Basters

gr. The Basters of Rehohoth formed a separate group living in its
own temtory (or, as they called it, Gebiel),when Respondent assumed
control over South West Africa. Since they only arrived in the Territory
in the latter haif of the nineteenth century 2,it will he convenient to
consider their history briefly in the context of the events at that stage '
and to deal with them slightly more fuUywhen describing the groups as
they were when Respondent assumed the Mandate 4.

J. The Europeans

92. The earliest contacts with South West Africa hy Europeans, came
from the adjacent Cape of Good Hope, which was a possession of the
Dutch East lndia Company from 1652 until 1795, from which time

onwards it was a British colony (save for the short period between
1803 and 1806). The incentives for the first expeditions to South West
Africa arose from contacts between the White settlers and the Hotten-
tots, who visited the Cape seasonally and traded with the White men.
From the Hottentots the authorities at the Cape learnt of the existence
of other ethnic groups living further to the north. Consequently, two
ships, the Grundeland the Bode, were despatched from Cape Town in
1670 and 1677 respectively in an endeavour togather information about
these people and the country they inhahited. Although the crewsof these
ships went ashore along the coast of South West Africa, they found the
whole coastal area desolate and unapproachable. The results of these
expeditions were thus largely negative 5.
93. In view of the barren and inhospitable nature of the coast. further
attempts to explore the interior ofSouth West Africa weremadeoverland.
In 1738 a farmer, Willem van \Vyk, traversed the and regions of the
north-western Cape and reached the Orange River. In 1760, another
farmer, Jacobus Coetzee of Piquetherg, near Cape Town, explored the
territory beyond the Orange River, ultimately reaching the hot springs
of Warmbad. There he encountered Namas, who told him about the
Dama, living further to thenorth 6.

94. The Governor ofthe Cape at thetime, Ryk Tulbagh, was interested
in Coetzee's report and immediately organized a scientificexpedition to
the temtory north of the Orange River. The party consisted of 17
Europeans and 68 Hottentots, under the leadership of Hendrik Hop, an
officer of the civil guard of Stellenhosch (a town near Cape Town), and
included a land survevor and cartoera~U r. a ho,anist. a doctor. a
philologist and an ethn;grapher. Fifteen ox-wagons provided the trans-
port. This expedition reached the site of the present Keetmanshoop, and

Vedder, op.cit.p. 46.
2 Vide Palgrave's Report. p. 78.
3 Vide Chap. III, para.34,infra
' Ihid., para88.infva.
Vide Vedder. op. cil.. p9-12.
Ibid.p. r9.348 SOUTH WEST AFRICA

members ofthe expedition discovered the Fish River, a tributary of the
Orange. Although no contact was made with any inhabitants of the
Temtory other than the Nama, valuahle scientific information was
gathered '.
95. After these first ex editions, Europeans from the Cape ventured
into the intcrior of South% est Africa with greater frequency. Of parti-
cular interest was the case of one Wikar, a Swede, who deserted from
his employment as an officia1at the Cape in 1775, and roamed for
four years in the wilds across the Orange River.n 1779he was pardoned
when the Governor leamt of his wanderings. His report to the Govemor
contained surprisingly reliable information about almost aii the various
peoples at that time occupying South West Africa, although for the
most part it was based on hearsay Z.
96. From 1791to 1792one \Villem van Reenen headed an important
expedition to the interior of South West Africa. The expedition went
as far as the present Rehoboth, and one of its members, Pieter Brand,
proceeded even further north and became the first White man to en-
counter the Bergdamas, probably in the vicinity of the Auas Mountains.
They were living in dire poverty, having been deprived of their livestock,
according to them, by the Nama. This expedition did not meet any
Hereros. They did, however, find a \mite family by the name of Visagie
farmingnear Keetmanshoop '.
97. As the result of the abovementioned and other expeditions of
discovery launched from the Cape, South West Africa up to the Swakop
River was thoroughly explored hy the end of the eighteenth century,
and some economic activity hy \mites (e.g., farming and hunting) had
commenced in the Territory. Further European contacts with South
West Africa form part of the general history of the Territow. which
is dealt with in the next Chapter.

Vedder.op.cil.pp.~g-zz.
Ibid.p.zz.
3 Ibid.pp.32-35.230. . CHAPTER III

IIISTORY OF SOUTH WEST AFRICA FROM APPROXIMATELY

1800 TO 1920

A. Introductory

I. The history of South West Africa during the nineteenth century
.consists of a record of almost unintempted warfare, particularly
between the Nama and the Herero. As will he seen, in the period be-
tween 1835 and 1861 the Nama became undisputed masters over the
.Herero. After 1861, the tide turned in favour of the Herero, and in
1870 they conclnded a peace treaty which conhed their position as
the dominant group in central South West Africa. After ten relatively
peaceful years, the year 1880 saw the beginning of renewed hostilities,
.which were not finally terminated until the Germans, who had in the
meanwhile acquired authority over the Territory, suppressed the war-
rinThe first two decades of the present century were marred by furthery.
warfare-first hetween various dissident groups and the German autho-
-rities in the years hetween 1903 and 1907, and thereafter by the First
World War, in the course of which South African troops conquered
the Territory.
The manner in which the destinies of the various groubs were affected
.by these happenings, is the subject-matter of the present Chapter.

B. First Contacts Between the Herero and the Nama

2. The first contact between the Herero and the Hottentots or Nama
came about when Herero hunters encountered Nama bands in the
region of the Swakop and Okahandja. Clashes occurred, and the Nama
were driven hack. The fierce appearance of the Herero, with their
teeth filed into points, struck terror into the Nama '.
3. The soutliward movement of the Herero was accentuated hy
,droughts in 1829 and 1830, which caused them to move with thousands
' .of cattle into the territory claimed hy the Hottentots. Although the
Red Nation. who were at that staee the leaders of a Nama alliance 2.
,organized araid and took severaluthousand cattle from the Herero ',
this did not halt the Herero invasion, but merely led to the herds being
protected by stronger guards. Any resistance io the Herero advancë
wasmthlessly cmshed '.It soon became apparent to the Hottentots that
they were no match for the more powerful Herero. Consequently
Games, the female chief of the Red Nation, sought the assistance of
one Jonker Afrikaner, the chief of a tribe of Orlam Hottentots who

Vedder.op. cit.pp.iy-r3i.
Vide Chap. II, para. 80. rrspra
' V-dder.op. ci:.p,177.
' Ibid.. pp. 177.178.350 SOUTH WEST AERICA

were then living far south near the Orange River '.In view of the role
to be played by the Afrikaner tribe in the succeeding years, it will be
convenient to give a brief account of its history up to the receipt of
this request.

C. Early Histoy of the Afrikaner Tnbe 2

4. Dnring the first British occupation of the Cape in 1795 , Hot-
tentot tribe, calling themselves the Afrikaners, lived in the district of
Tulbagh in the Cape. Their leader was one Jager Afrikaner. The British

authorities provided the Afrikaner tribe with ammunition for use
against the Bushmen, but Jager Afrikaner gradually extended his
activities to the more profitable pursuit of robbing persons who were
wealthier than the primitive nomadic Bushmen. This led him into con-
fict with the authorities, and he moved to a stronghold on an island
in the Orange River, where he collected a band which soon terrorized
the whole area. In 1799 the anthorities at the Cape put a price on Jager's
head. and sent a commando aaainst him. Althoueh this commando
did not reach his hideont, ~a~e; thereafter becamemore cautious and
restricted his activities to the area bevond the bonndaries of the Cape
Colony.
.4fter being the scourge of the area for years, Jager was converted
to Christianity by a missionary. and died in 1823 at peace with the
anthorities.
5. The death of Jager gave rise to a dispute about succession to the
chieftainship, which caused a split in the tribe. His son, Jonker, moved
at the head of the larger section of the tribe across the Orange River
into South \frest Africa. \Vhile living a short distance north of the
Orange River he received the request for assistance against the Herero
mentioned above. This request suited the ambitious Jonker very well.
He agreed to wage war against the Herero on condition that he would

be allowed a free choice of a place of residence in the Red Nation's
tribal areas '.

D. The Era of Nama Domination

6. On his uray to the north, Jonker clashed with Korana Xamas,
and carried off some of their cattle 3. In 1835 he defeated the Herero
in three battles. First he came down on Herero herdsmen north of
Gibeon. His possession of horses and firearms gave him a tremendous
advantage-he shot most of the Herero down and took their cattle.
Soon thereafter he defeated them in two further clashes, and proceeded
up to Okahandja where al1 the Herero had Aed into the monntains'.
In the following years, raiding of Herero cattle continued. Rlany Herero

T'edder, opcil.pp. 177, 160:Andersson, C. J.. Lake Ngami (2nd ed.). p219;
Alexander, op. cit., Val. II,151.
Seein general U.G. 41-1926,pp. 10-II.
Vedder. op.cil.p. 180.
* Ihid.. p. 181:Alexander,op.cil.Vol. II, p.151;Andersson. C. J.. Lake Ngomi
(znd ed.).p. zrg: COUNTER-MEMORIAL OF SOUTH AFRICA 35l

were either kiiied or enslaved by the Afrikaner Namas and other Nama
tribes '.
After his successful battles against the Herero, Jonker estahlished
himself at Eikhams, which he renamed Windhoek, in about 18402.

7. Although the Herero had been severely defeated and had lost
half3 of their cattle to Jonker, and many had fled to the Kaokoveld,
some of them preferred to come to terms with Jonker. Amongst them
were the chiefs Tjamuaha, Mungunda and Kahitjene. After the losses
inîlicted on them by Jonker, they had again managed to improve their
economic position, not only by their energy and skill in raising stock,
but also by raiding other trihes of their own race. A retreat to the
north in fear of further onslaughts by Jonker would have subjected
them to the risk of falling into the hands of these other Herero tribes.
As a result, they placed themselves under Jonker's protection ',and,
with the assistance of three missionanes, a peace treaty was concluded
between Jonker and Tjamuaha on 25 December 1842. For the mo-
ment the future appeared to promise peace and security. Jonker in-
creased the number of his followers by adding new members to his
tnbe, and improved the amenities of Windhoek by inviting traders to
settle there 5.

8. Relations between Jonker and his Herero ailies soon became
strained. In 1844 Oasib, the successor to Games as chief of the Red
Nation Namas, visited Kahitjene and washospitably rcceived. Suddenly,
however, he fell upon the Hereros, killing al1 who offered resistaiice,
and taking Kahitjene's cattle. Jonker did nothing to intemene on behalf
of Kahitjene, who, not unnaturally, concluded that Jonker's protection
was not worth having, and withdrew from his alliance with the Afri-
kaner Namas6. At the same time, Jonker himself was becoming pro-
gressively more imperious and arrogant in his relations with the Her-
ero, even those allied to him. Thus, for instance, Vedder States:

"... when a fit of anger took him, he used to order the Xamas to
'bind my friend's calf to the wagon wheel' [i.e., Maharero, son of
Tjamuaha], and hfaharero had then to stand, for days and nights
at a time, with his feet and arms bound with riems to the wheel
of an ox wagon 7".
g, In hlarch 1846 Jonker decided to arrange an expedition (accom-
panied by Maharero and some Herero wamors) to punish another
Herero chief, called Katuneko. The latter had treacheronsly attacked
and annihilated: five Mbanderu8 kraals (or villages) and taken their
stock. When Jonker arrived at Katuneko's residence it was deserted.
Jonker became so angry that he fell upon a wealthy and completely

' By r837 it had already becorne a cornmon practice for the Nama to have Herero
slaves. videAlexander, op.cit., Vol1, pp. Z~I-ZZ~,Vol. II, pp. 39,163.ZII-2rz:
Pnlgrave's Report,p. 17: Andersson, LakeNgami (2nd ed.), pp. 218-220.
Vedder. op. cil.p.182.
' Andersson, C. J.,LaRc Ngami (2nd ed], p.220.
' Paleraue'sReeort. DO. 16-.7.Vedder..o.. cil.. D. 197.
Vedder. op.cit.pp.'ig~-zo5.
Ibid.p,.206.
' Thedeastern branchofthe Herero.352 SOUTH WEST AFRICA

innocent Herero, named Kahena, and carried off more than 4,000 of his
-..-.. .
IO. While Jonker was on a further expedition to the north, Oasib, of
the Red Nation Namas. attacked the Mbanderus in the east and brou~ht -
back rich spoils 2.
II. In December 1848 Jonker heard of a ship which was lying
wrecked somewhere north of Walvis Bay. He started in search of the
wreck but could not find it. He felt annoyed at the idea of having to
return empty-handed. Passing near some Herero villages, he invited one
of the wealthy Hereros, Kamukamu (a half brother ofKahitjene,Jonker's
former ally) ', and received him in a friendly way. but had him mur-
dered at night. Thereafter he wiped out the villages of Kamukamu
and two other Herero headmen by killing al1 the inhabitants, and
drove tbeir cattle away to Windhoek '.
Kahitjene endeavonred to take revenge but was defeated. Thereafter
he went to settle in the vicinity of Barmen, where, to make space for
himself and to compensate for his losses, he attacked other Hereros
12. Oasib of the Red Nation Namas made a raid on one of the posts
of Jonker's ally, Tjamnaha, and drove him out of it. Jonker thereüpon
authorized Tiamnaha's son, Maharero, to undertake an expedition
aeainst othei Hereros to com~ensate for the losses. No ste~s were
tiken against Oasib 5.
At this stage, the whole central area of South West Africa had
lapsed into chaos. Raiding and plundering became general. Kahitjene.
afraid to attack Jonker directly, took punitive measnres against Jonker's
servants, the Bergdamas
Jonker finaliy decided to take action against the whole Hefero

one of Jonker's cattle posts and in order to take revenge, Jonker ente~ed

into an alliance with Oasib of the Red Nation, who was entrusted with
a punitive expedition against the Mbanderu. Oasib did his best to make
a clean sweep. AUthe men upon whom hands could be laid were killed.
At first the young women and children were spared and carried off as
slaves. However, when it was found that they were unable to endure
the long journey, they were also despatched 8.
Thereafter, Jonker dealt with the Hereros in Windhoek. Those who
did not escape immediately were killed. Since these Hereros had pre-
viously separated from their own people and linked up with Jonker.
they were intensely hated by their own nation, who killed them
wherever they could lay hands on them 9.
13.Both Kahitjene and Tjamuaha were at that stage living at
Okahandja (Schemelen's Hope). When rumours of Jonker's designs
against the Herero reached him, Kahitjene decided to flee. In .4ugust

'Vedder, op. cit.. p. zio.
Ibid.. pp.ZIO-ZII.
' Videparas. 7-8. supra.
'Vedder. op. cil.. p. 2x3.12; Andenson, C. J., Lnke~Vgnmi (2nd ed.). p124.
Ibid., pp.213-21.$.
'Ibid.; Andersson, C. J., Lake Xgami (znd ed.), p. 124.
Vedder. op. cil.pp. zrq-215.
Ibid.. p. 218. 354 SOUTH WEST AFRICA

"Whenever the Hereros were not worried by the Orlams and the
Namas, tliey fought all the more fiercely amongst themselves.
It was a war of each one against all the rest, and every smaü chief
who had a few cattle plundered and murdered the others who had
rather more, and every one who had been despoiled looked for a
third at whose expense he could recoup his loss. Uloodshed and
misery, murder and horror, were so prevalent throughout the land
that people were almost inclined to wisli that the times when
Jonker inspired universal fear and terror would return. It is much
easier to be ready for a lion than to protect oneself against a whole
pack of hungry wolves '."
16. Galton left on 6 January 1852 2.Jonker immediately broke loose,
and Andersson, after a detailed description of investigations made by
himself to ascertain the facts, recordeinteralia:
"Here [i.e., at Barmen] fugitives arrived daily, bringing tidings
of plunder and bloodshed. 1 felt grieved and angry at Jonker's
outrageous behaviour. Only a year before, he had most solemnly
promised MI. Galton never again to molest the Damaras [Le., the
Hereros] .. .
The result of my own and Mr. Hahn's inquiries, was a conviction
that Jonker, with his murderous horde, had destroycd in his recent
foray upwards of forty werfts or villages; and that the aggregate
number of cattle carried off could not have been much short of
ten or eleven thousand. One powerful tribe of Damaras had been
com~letelv broken UD 3."

As a result of his success, Jonker gathered a large number of followers,
servants and slaves from other Nama tnbes, Herero and Bergdama'.
17.Other Nama tnbes were envious of Jonker's success, and in
the years 1852 to 1855 he was involved in clashes with the Red Nation
and the Topnaars. In May 1854 the Topnaars launched a fierce attack
on Windhoek. Jonker sent his bondsmen, the Herero, to ward off the
attack, but after a large number of them had been shot dom, they
broke and fled. Jonker had ailthose shot who ran away, and launched
a successful counter-offensive=.
In November 1855 ,nder influence of missionaries and Europeans
who were mining copper in the area, peace was concluded between
Jonker and the Red Nation. Further attempts to secure amore universal
cessation of hostiiities resulted in a peace treaty behg signed at Hoach-
anas in January 1858 by II Nama chiefs 6.
18. While the peace negotiations amongst the Namas were proceed-
ing, Jonker, having either Mpoverished or subjugated the Herero,
turned his attention to the Ovambos. InOctober 1857 he sent a com-
bined force of Nama and Herero into Ovamboland. Eighteen cattle
posts were stripped of al1their cattle and a number O!sons and wives
of Ovambo chiefs were taken prisoner. On the return journey, one sec-

Vedder,op.cil.p. 25r. quoting von Rohden. an author whwrotein 1888.
Andenson, C.J.,LaAcNganzi (2nd ed.). pp. 251-252.
'Vedder, op.cil.pp. 255.258,
' IMd, p.263.
Ibid.. pp. 265.269. COUNTER-MEMOR IFLSOUTH AFRICA 355

tion of the party made a detour to Grootfontein, killing a number of
Herero cattle herdsmen and taking their stock '.
In August 1860Jonker himself paid a visit to Ovamholand. Andersson
gives the foiiowing account of his activities:
"There was at the time a strong party [ofOvambos] who inclined
for another chief, at the head of which wasNakonjona (aremarkably
intelligent and fine-looking man), but Chypanza [the chiefj, dread-
ing his influence, caused him to be put out of the way. On this, the
younger brother of the murdered man, the present chief Chykongo,
sent for ssistance to Jonker Afrikaner, the famous Namaqua free-
booter, wbo shortly afterwardsappeared in Ovamholand with acon-

siderable force. For a while he amused himself hy laying heavy
contributions of cattle, etc., on the natives. besides slaying very
many of them 2."
After six months he retumed with 40 ox-wagons loaded with booty
together with ?o,ooo cattle '.
19. During Jonker's absence, other Namas followed his example by
raiding Ovambo and Herero tribes. Reports of missionaries of the time
abound in stories of the atrocities committed on these raids, such as.
to quote one example, imprisoning men, women and children in their
huts, putting combustible matcrial around them, and buming alive the
people inside 4.

20. By 1860, the Hereros were entirely subjugated and demoralized.
Large numbers of them were slaves to the Nama, at whose hands they
often received cmel and inhuman treatment. This fact ako is iiiustrated
by contemporary missionary reports 5.

E. The Liberation and Rise of the Herero

21. Shortly after Jonker's return from Ovamboland, both he and
Tjamuaha feu iU and both died in 1861, within a few months of each
other 6.Jonker \vas succeeded by his son Christian, who was a fearful,
ineffectual man 7.
22. Tjamuaha's son and successor. Maharero, on the other haiid, was
made of stemer stuff than his father, and bondage held no charms for
him. He was determined to liberate the Herero from the Nama rnle.
After his father's death, he gathered his people and cattle (as well as
Christian's cattle) and escaped to Otjimbingwe, where Andersson had
established a trading store. As a result of their service with the Afri-
kaners, the Hereros had leamt to use iïrearms. Maharero immediately
began preparing for an attack from the Afrikaners, which he knew was
inevitable. He collected Herero warriors from the whole area, and his
strengh increased rapidly. In the meanwhile, Christian was gathering

Vedder. op.cil., pp. 269-270.
Andersson ,.J..Notes of Trauel in SouAfrica (1875)p..217
' Vedder. op.cil.. p. 271.
' Chronik Otjimbinguie, 186QueilenI.pp.39-40;Refiorl bG. Krhlcin, Berseba,
16 Mar. 1861,Quelle* rr. p.zgg.
' Vedder. qi.cil... zu0.
' Ibid.. p. 329.-277.356 SOUTH WEST AFRICA

his own forces. By a ruse, Christian managed to launch a surprise
attack on the Hereros at Otjimbingwe in June 1863. After initial un-
certainty, the Hereros, however, rallied and routed their attackers '.
Andersson gives a vivid account of the hattle, from which the following
is an extract:
"A grand but appalling scene foilowed. Fully fifteen hundred
Damaras [i.e.. Hereros] set offin hot punuit of the RyingNamaquas,
who now only thought how they might best use their legs; it was.
liowever. short work, as the hroad açsegaai of the Damaras made
terrible havoc in the ranks of their opponents ... The carnage
was fearful,.. . Had every Damara present thatday done his duty, .
not one Hottentot ought to have survived, as they might have
been cut off to a man with the greatest ease. But, until the pursuit
began, there was not certainly three hundred actually engaged, and
instead of pursuing the enemy in earnest, most of them fell, to
plundering; andhundreds of Damaras might have been seen carrying
off booty. or stripping the slain. It was not unusual to see a fellow
hastily covered with the torn garments of some slaughtered foe,
still reeking with gore. As it was, the Damaras had gained a com-
plete victory ... 2"
23. Christian, the Nama chief, was himself killed in the battle of
Otjimbingwe. He waç succeeded by his brother, Jan Jonker. Despite
missionary efforts to secure peace, the Afrikaner Namas were determined
to take revenge on the Herero3. Deciding that attack was the best
means of defence, a Herero fighting force in March 1864 attacked and
surprised Jan Jonker's trihe and the Topnaar Namas, who had united
with him, east of Windhoek. A large number of cattle was captured '.
24. After the defeat, Jan Jonker organized a Nama alliance com-
prising his tribe, the Red Nation under Oasib, the Veldskoendraers
under Hendrik Ses, the Grootdodens under Aimab and the Topnaars,
with a commando from Garib 5.Maharero, assisted by Andersson, also
prepared for war, and he collected a force of 3,000 Hereros. In addi-
tion he was assisted by the troops of the Swartbooi Namas. In June
1864 the combined Herero-Swartbooi force encountered Jonker's men
at a place called Two Waters in a mountain range near Seeis. After
severe resistance, Jonker's men were defeated
25. Jan Jonker escaped, determined to take revenge on the Swart-
boois for their assistance to the Herero. In order to get beyond his
reach into territory where they could be protected by the Herero, the
Swartboois left Rehoboth where they had been living up to then, to
settle in the area between the Swakop and Omamru rivers '.The party
was, however, overtaken hy Jan Jonker, and, after heavy fighting, the
Swartboois abandoned their camp and took up a more favourable posi-
tion. The women and children sought refuge in the sandy bank of a

Palpraue's Report, p. 71;Andersson.. J.,Noles of Trauel in Soutli Africa
(1875)p.p.64-78; Chronik Otjimbi$tgme,1863QuellenI.pp. 47-49.
AnderssonC .. J., NotofTravil in South Africa (1875)p.p.75-76.
Vedder.op. ci!.p,p.337-338.
' Ibid., p. 342.
Ibid., pp.344-345:iory, Kleinrchmidt. Jun1864.Quellen20.p.134.
' Vedder,op.rit., pp.345-347. COUNTER-MEMORIAL OF SOUTH AFRlCA 357

river near the camp, which was covered with a species of long wiry
grass. This did not, however, enable them to escape Jan Jonker's men,
who set fire to the grass, by which means a number of women and
children were kiiled and others serionsly injured. Having also captnred
the camp, and taken considerable booty, Jonker was content with his
success, and did not pnrsue the Swartboois further 1.
26. Having thus settled ivith the Swartboois, Jan Jonker turned bis
attention to ùlaharero. Since his tnbe had been considerably weakened,
he entered into an alliance with the Gobabis Namas under their leader
Vlermuis =.Thereafter, sporadic fighting took place between this aih-
ance on the one side and the Herero and Mbandem on the other.

Towards Augnst 1865 Jan Jonker heard that the Nama chief, Hen-
drik Ses (Nanib), intended to attack the Hereros at Otjimbinpe. Jan
Jonker immediately decided to join Hendrik Ses for, if Hendrik were
successful, the danger might arise of his jeopardizing Jan's claim to
paramountcy 3. In September 1865, the Namas attacked Otjimbingwe,
but fought in such a half-heûrted manner that they were soon put to
flight ' The Herero, once again accompanied by their former di-,
the Swartboois, followed up their victory and moved against Hendnk
Ses (Xanib). On the arriva1 of the Herero, Jan Jonker and his men
fled immediately. Hendrik Ses, however, offered a resolute resistance,
and in the words of Andersson:
". . . had it not been for the presence of the Rebobothians [Swa~t-
boois], the Damaras [Hereros] would have been driven back with
shame and slanghter. As it was they lost many men, but the day,
somewhat inauspiciously begun, ended in the most complete victory.
every one of the enemy, including the obnoxious chief, being slain '."
27. During the years 1865 and 1866, warfare also continued among
the other Nama tribes and the Herero, in the course of which the
Namas at Gohabis in particular suffered many casualties 6.

28. Towards the end of 1867, Jan Jonker marched on Otjimbingy
once more, supported on this occasion by men under Jacobus BOOI,
another Nama leader. They managed to surprise the Hereros. "and the
best and bravest of tbem were shot dnwn before thev could lav their
hands on their guns" '.
After the battle Jan Jonker retreated to Anawood with his booty.
The Herero followed him and in the night of 22 December 1867 they
surrounded the Nama camp at Salem (near Anawood). The next day
heavy losses were inflicted on the Namas, who finally managed to
break through and to escape to Tsaobis where, however, the Hereros
had cut off the water supply so that the Namas were forced to flee even
further

' Vedder. op. ci!., pp. 347-348: Andersson, C. J.,Noter of Trouel itt South
Africn (1875)p.p. 122-124C ;hronik Oljimbingwe, 1864QueIIenI,pp.54-55.
Vedder. op.cit., pp. 349-350.
' Andcrsson, C.J.,h'olesof Travcl in Soulh Africa (18p..145;Vedder. op.ci!..
o. 25..
. -AnderssonC.. J.,Notes of Travel inSouth Africa (187p. 147.
Vedder, op.cil.. pp. 355-356.
' Ibid.. pp.356-357.
Ibid.. pp.357;Chronik Oljimbingwe, 1867Quelle* I,p.67.358 SOUTH WEST AFRICA

Approximately a year later, Jan Jonker and Jacobus Booi attempted
another campaign against the Herero, but at Omukaru, on the western
side of Okahandja, the Namas were defeated, and the Boois tribe was
exterminated and disappeared from history 1.

29. After this battle, Maharero decided thatthe time was ripe to settle
finally with the Namas. In July 1869 a strong force was sent to the
south. Insufficient food was taken along, since the Herero contemplated
living off the livestock of the Narnas. However, no Namas could be
found, and the army returned in a starving condition

F. The Early&tory of the Witboois

30. Duhg the incessant wars between the Xamas (particularly the
Afrikaner tribe) and the Herero, another tribe of Orlam Namas had
become prominent. These were the kvitboois, who established themselves
at Gibeon in April 1863, after a nornadic existence of 13 years. Their
chief, Kido Witbooi, subscribed to the peace treaty of Hoachanas in
1858 3, and he held himself to its terrns, refusing to take part in the
wars against the Hereros '.This attitude brought on him the enmity of
some of the other Nama tribes, and in 1864 he was attacked by Oasib
of the Red Xation, Hendrik Ses (Nanib) of the Veldskoendraers and
Aimab of the Grootdodens. The battle lasted for two days, after which
the Witboois were forced to surrender. The enemy left Gibeon in ruins,
and the inhabitants reduced to poverty? However, in a number of
forays against the Red Nation during the following year, the Witboois
managed to recover their position 6.
31. In September 1866, during Kido Witbooi's absence, Oasib turned
up at Gibeon with a large force. He pretended that he had not corne
to fight since Kido only, and not the Witbooi tribe, was his enemy.
However, when some 30 Witboois accepted his invitation to visit his
camp, he had them overpowered and shot. He then fell on Giheon,
ca turing al1 the uomen and children and ail the stock7. On being
in ormed of this, Kido gave chase, recovered the wornen and children,
and defeated the Red Nation in a battle at Rehoboth. Oasib escaped,
but died shortly aftenuards, being succeeded by his son Barnabass. In
December 1867 a peace treaty was signed which ended the wars between
the Witboois and the Red Nationq.

G. Attempts at Restoring Peace

32. The interniinable bloodshtd and chaos 10 Izd the inhahitants,
particularlv the European ones. ro consider the ~ossibilitv of assumption

' Vedder, op.cil.p. 362
Ibid..pp. 362-364.
Vide para. 17, supv~.
' Vedder, op.cil.pp. 366-367.
' Ibid.,pp. 367-369.
' Ibid.,pp. 370-373.
' Ibid..PP. 373-374.
Ibid.,pp. 377-378.
'O Andersson who died on 5 July 1867 near the ICuneneRiver (on an expedition
tothe north) wrote shortlbefore his death: "The cursed mutual distrust. makes ÇOUNTER-MEMORIAL OF SOUTH AFRICA 359

of wntrol by some European power. Thus in 1868 a etition signed by
31Europeans and 25Hereros was sent to the British k o'ernment at the
Cape, asking for its protection '. In 1869,the management of the Rhenish
Missionary Society requested the Government of the North German
Confederation to afford protection to its missionaries in South West
Africa. Nothing tangible resulted from these requests 2.
33. However, circumstances in the Temtory were becoming more

conducive to peace-even though only temporarily. In addition to the
ravages of war. the country in 1869 suffered from the effects of a severe
drought. Maharero's last campaign had been a failure, resulting in near
starvation of his annies 3. The Nama tnbes, and in particular the tribe
of Jan Jonker, were weakened and impoverished by warfare and
drought '. Through missionary intervention. and after months of in-
trigue and treachery amongst the various Nama and Herero leaders, a
peace treaty was signed at Okahandja on 23September 1870 The main
dispute for settlement at the conference related to the area to be occupied
respectively by Jan Jonker and his tribe, and by the Herero. Maharero
tried to force Joiiker away from Windhoek to the south, but the other
Nama chiefs bluntly refused to agree to this proposal. Eventuaiiy a
compromise agreement was reached-Jan Joriker would remain at
Windhoek, but "on feudal tenure". This expression was not defined, and
in addition no boundaries betwcen his territory and that of the Hereros
were determined. It willbe apparent therefore that the peaceof Okahand-
ja carried within it the seeds of further dissension and bloodshed 3.
34. Also present at the conference of Nama and Herero chiefs at
Okahandja was a deputation of Basters under Hermanus van Wyk. The
Basters were a group of rnixed Hottentot-European descent who had
moved from the Cape Colony and were looking for a place in which to
settle. They weregiven permission by the Swartboois to iive at Rehoboth
(which had previously been occupied by the Swartboois) =. Other inter-

ested tribes present at the conference apparently approved of the ar-
rangement 7.

II. ThePeriod of Herero Domination

35. After the peace of Okahandja, Maharero's strength and cattle
increased immensely, and he took fd advantage of his opportunity t0
repa) the Namas for the sufferings of his ople in former years. He
sent his cattle to Pasture in the lands of the Famas, and even prevented
the Namas from huntingn. Jan Jonker's tribe had been so weakened
that they were forced to submit to this treatment, and were progressively
-
a thorough reconciliatio$0difficult, if not impossible. hetween so many conflicting
country iç onceniorethrown into astate of the utrnost confusion. and the prospects
of Peace fartheoffthan ever". (Noles of Trauel in SouAtricn.p. 157.)
' Vedder, op.cil.p. 379.
Ibid.P.P. 370-382.
' Vide pura.29. supra.
' Vedder, op. cilp. 385.
Ibid.p.p. 385-393.
Vide oara.2-. ~~r.-.
' Vedder, op. cilp. 412;Palgrave's Report. pp. 70. 75. 77-82.
Vedder. op. cil.. pp. 407-+10. COUNTBR-MEMOR IF SOUTH AFRICA 361

action on which the Basters baçed their claims to the area had not.
been com~lied with and Swartbooi. the former ocCuDautof Rehoboth '.
wantc(1 t; r,:turn totli,.;trc.\i.itlliijtribi. Hciiii:riiivan \Vyk 1c;tdcr

of rlit: L+;i,rcrs,.~iidnieiirs>of Iliiuuncil. c:irniîtlv inil)lor~cdtlic C;ipr.
Goiernniciir to nile tlic countrv aiid scciirt- ~rotc~tiun" for ~lic!i-.
Palgrave returned to the Cape andasubmitted a report to his Government
in which he recommended that the coast of South West Africa be pro-
claimed British Territory s.
As a result of Palgrave's recommendations, Walvis Bay and the
surrounding territory was proclaimed a British Crown Territory on
12 March 1878. The houndaries of the "Port or Settlement" of Walvis
Bay were proclaimed as follows:
"... on the south by a line from a point on the coast fifteen miles
south of Pelican Point to Scheppmansdorf; on the east by a line

from Scheppmansdorf to the Rooibank, including the Plateau, and
thence to ten miles inland from the mouth of the Swakop River; on
the north by the last ten miles of the course of the said Swakop
River 4".
38. During the period between October 1877 and January 1879,
Palgrave paid a second official visit to the Territory, but*he was not
very pleased with its results. The Hereros had started to distmst him.
The Namas opposed him. The cattle raids and kiliings continued 5,and
the chiefs did not turn up at meetings which he arranged 6. Maharero
was always nrging that the Government onght to display more power.
With this Palgrave was in agreement. He considered that a military
force "large enough to inspire fear on the one side and confidence on the
other", would he necessary to enforce peace in Namaland ?.

Palgrave again returned to South West Africa in January 1880, this
time as magistrate of Walvis Bay and Commissioner for Hereroland.
A resident magistrate, Manning, was also appointed at Okahandja8.

. 1. TheWarsof 1880 to 1884
39. By 1880 war between the Namas and Herero once niore became
imminent. The reasons appear from the following contemporary reports
from British officiaisin South West Africa:

"1 can quite see that it [a war] must come before long, because
1 think it is almost a matter of course. The Damaras [Hereros] are
Vide para. 25,suora.
Paigraue's ~ipovi, pp. 75,78-83.
' G. 50-1877,Report of W. Coates Palgvaue. Esg., Special Commissioner to
the Tribas ?'orth ofthe Orance Riuer, ofhis Misiion to Damaraland and Great
Narnaqualand in1876.
' Vide Proclamation by Staff-Commander Dyer, of 12 Mar.1878, in C.2144,
p. 8,as confirmed by Letteis Patent of iqDec. 1878, in Brilish and Foreign Stnle
Popers 1878.1879 V.ol.LXX, pp. 495-496.
' Palgrave iocapt. Jacobus Isaac. etc.Dec. 1877,N.A. 287;letterbyH. van Wyk,
Rehoboth, I Jan. 1878.Quelles 15;Palgvave to SecvatorforNative Aflairs,31 Jan.
1878, N.A. 287;Refiort by F. Heidmann, Rehoboth, 27Apr. 1878, QueIlen21.p. 137:
Rhenish Missionaries Io Palgraue, 25Aug. 1878. N.A. 287;Hermanus van Wyk lo
Maharero, 6 Nov. 187...N.A. 11x-.
' Vedder, op. cit., pp. 439.441.
' Ibid., pp. qqr-qqz. 362 SOUTH \EST AFRICA

increasine. and what is more to the point their cattle are increasina
by ten.; of ihouwnd.~ annually. ~lie; neither slaughter. nor scU, to
an!. extent \vorrh naming. and consequently the\, mus1 soon eitlier
Iia~t:fr\r.ercattle or more land to mue them on. 'fhev wnllorobablv
prcfer the latter alternati\.c, aiid ïhcii. the land iiiuiib~.taken from
sonie other tril~s, and thrir cattle pojts are pushed even beyond
their own boundaries already '."
"The Damaras [Hereros] are hehaving very badly-never before

so bad-and want to provoke a war. Their treatment of John Afri-
kaaner is a proof of this. 1expect every dayto hear that they have
faUen upon him and massacred every man, woman and child in
Windhoek 2."
40. In the urcumstances, it is not surprising that various incidents
took place which s~arked off eeneral hostilities. In Aumt 1880 some
HererÔ, after rece&ing a regrt that the Namas \ver; preparing for
hattle, shot dom allthe inhabitants of a Nama village. The Herero
commando was foiiowed and most of its members killed '.When Maha-

rero heard of this, he had al1 the Nama living at Okahandja murdered
dur in^ the niaht of 22 Aumst 1880.and gave -rders that al1Namasin the
country wereto be exte&nated 5.
The whole country was plunged into bloodshed. The British officials
fledto safety,and the Herero hordes attacked and killed Namas wherever
they could find them However, the Namas were also successful in a
number of battles in September 1880 '.

41. On 28 October 1880 a devastating battle was fought on the
Olifants River near Okangondo. Many Herero warriors fell, and thou-
sands of Herero cattle were captured 8.
42. The Namas had now been organized into two main forces. One
was under the leadership of Jan Jonker, and consisted of men from a
number of Nama tribes, as well as the Basters of Rehoboth. A second
force was established at Seeisunder MosesWitbooi 9.
Jan Jonker's force attacked Barmen in December 1880, and, despite
fierce opposition, it routed the Herero who were there and captured al1

their cattle. After the battle the night was given over to the celebration
of victory, but before dam a fresh Herero force attacked the Namas.
defeating them decisively 'O. Jan Jonker escaped, and thereafter kept
himself busy with cattle raiding 1'.

'fifusgrave Io SecrelarforNoLioc Affoivs, 9June 1880, N.A. 288.
'Palgrave Io Bright, 13June 1880.N.A. 288.
' Vide Report by F. Heidmnn>i, Kehoboth, rq Sep. ,880, Quelbrr zi.pp. 155,
157-158; Vedder. op. cil.. pp. 452-457; Ofjicial Jouofalhe SecretorO/ Ihc Trons-
gariepCommission. Minutes. 21 Sep. 1880.N.A. 288; Report by F.Judt. Okahandja.
14 Sep. 1880, Quelles 7, p.40. 1
' Vedder, op. cil.. p. 454.
' Ibid., pp.454-455; Chroliik Otjimbinpz, 1880, Quzlleni. pp.99-ioo: Report by
F. Judt, Okahandja, rq Sep. 1880, Qr<cllc7. p. qo.
Vhronik Olji*nbingwc, 1880, QuelleI. p.ioz: Vedder. op. cil., p. 458.
' Vedder, op. cil., p. 458: IrIc Io Palgr20cDec. 1880, K.A. 288.
' T'edder.op. cil., pp. 458-459.
Ibid., pp. 459.460.
'OVedder. pp. 461-462; Chronik Oljimbinguic. 1880. Quclleni,p. 100;Letier byF.
Meyer, Otjikango (Barmen) 19 Dee. 1880, QueIlen 27, pp. 6-7.
" Vedder. op. cil., pp. 463-464. COUNTER-MEMORIAL OF SOUTH AFRICA 363

Maharero foiiowed up his success a st Jonker by sending an army
against the other Nama force under hE Witbwi. A battle was fought
on 23 and 24 December 1880,and the Namas were forced to retreat when
their ammunition gave out. Witbooi, however, immediately started
making arrangements for a new onslaught '.
43. In the rneanwhile cattle raiding and marauding expeditions con-

tinued unabated. The warfare was bitterand cmel, and grave atrocities.
,ofwhich exam lei'ay be found in contemporaryreports of missionaries,
werecommon .
4. Towards the end of 1881, Moses Witbooi, together with Jan
Jonker, had at last coiiected a strong force, but Maharero had also not
been idle. The two annies met in Sovember 1881 at Osona, and the
greatest battle that had yet been fought in South West Africa then took
place. The Nama were utterly defeated. and lost ali their wagons, horses,
ammunition and a large number of men. The way to Windhoek and
beyond was strewn with Xamas who had died of their wounds '.Corn-

letely defeated, Moses Witbooi returned to Gibeon. Jan Jonker left
b.indhoek, and sought refuge in the Gansberg 3, whence he thenceforth
carried on raiding operations.
45. While the major forces of Nama and Herero were fighting, the
Swartbooi Narnas, who in years gone by had been the only Nama
dies 'of the Hereros, were alsoharassing them and raiding their cattle
46. Various attempts were made by missionaries to negotiate peace

treaties, and although some such treaties were signed, they were on the
whole ineffective Nevertheless, Jan Jonker was incensed with Her-
manus van Wyk for concluding a peace treaty with the Hereros, and
launched asuccessful attack on Rehoboth, burning dom half the village
and capturing many cattle '.
47. After the attempts at peace. the Temtory was in a worse state
of unrest than it had ever been before. Raids, robbery and murder were
daily occurrences8. Various requests for protection were made to the
British Government 9.

Since the British Government had decided in 1880 to restrict its
responsibilities to the Walvis Bay territory 'O,the Resident Iblagistrate
was powerless. He did, however, put a stop to the sale of arms and
ammunition in Walvis Bay l'.This had no noticeable effect on the

Vedder. op. cil., pp. 464.465: Repovlby E. Heider. Hoachanas, Quell6.3 Jan.
1881. p. 61.
2 See for instance Reporl by F. RUSI.Gibeon, 6 Jan. 1881, Qurllan 17. p. r3and
Reporl b.~F. Heidemann. Rehoboth, 9 June1881, Q~iclle> t1.p. 206.
Wedder, op. cil., p. 465.
Palgraue's Rcporl, p. 18.
Dee. 1881, QueIlen 28, p. 4.0. Qucllen 1, pp. ~w-102: Diary. Station Oknhandja.
Vedder, op. cil.. pp. 465-470.
7 ~ ~ ~ ~. ~60~
Repovl byfi..Mever, Otjikango, 23 Feh. 1883, Quelles 27, p. 35.
Vide Petition of P. Haibib for annexatio" of rest ohis territary5 Jan. 1883.
N.A. zgo; Hermanus von Wyk 10 Rerident Magistrale, 31 Jan. 1883, S.A. 290.
'OC. z75a. ..8.
'1Residenl Magistrat8 Whindus, Walfish Bay. to Under-Sccrelnry/or Native Agairs,
4 Jan. 1883. p. 3,N.A. 290: IVhindus !O Under-Secretnry terNnfiva Agairs, 6 Jan.
1881. DO. --6. X.A. zso: Residanl iMa~istrnlsSimbson10 Under-Secrelnrv /or Notiva
Afjoirs. riOct. I~~~,-N.A. zgo.364 SOUTH WEST AFRIC.~

hostilities, which continued nninterruptedly. Both the reports of the

Resident Magistrate at Walvis Bay, and those of missionanes, were
full of accounts of battles, thefts and atrocities. Thus men, women and
children were dismembered, scalped, or throttled'.The Resident Magis-
trate for instance recounted an incident where-
". .. three prisoners were captured by the Damaras [Hereros], one
of them was skinned and quartered, cooked in a ot and the remain-
ing prisoners were compelled to partake of the Lsh, living on it for
three days 2".

J. German Acquisition of South West Africa

48. As has been noted, the British Government had decided in 1880
to restrict its responsibilities to the Walvis Bay settlement 3.At about
the same time, a German merchant, F. A. E. Lüderitz, \iras contem-
plating the establishment of a business enterprise on the coast of South
West Africa '.In iïovember 1882 he informed the German Government
of his scheme ruid requested its protection for his proposed enterprise =.
This led to involved diplomatic activity 6 between Germany aiid Great
Britain, which was still in progress when Lüderitz commencedhis scheme
by purchasing from the Nama chief, Joseph Frederick of Bethanie,
the Bay of Angra Pequena (later calied Luderitzbucht) and a lengthy
strip of arid coast onI May and 25 August 1883 respectively ?.

49. Despite Lüdentz's acquisitions, the diplomatic negotiations he-
tween Germany and Great Britain dragged on 6. Eventually, befofe
finality had been reached, Bismarck instructed the German Consul in
Cape Town on 24 April 1884, that Lüderitz and his settlement were
under the protection of the German Empire 8. In September 1884 a
German Protectorate was proclaimed in South West Africa, and on
22 September 1884, the British Government "decided to acquiesce in
the action of the German Govcrnment and to welcome Germany as a
neighbour .. .9"

50. Thus, aith the exception of Walvis Bay whicli was recognized

Residenl dfagirtrate Simpson Io Under-Secrefary for Nativc AffaiIsMay 1884.;
pp. II-12,N.A. 291 :Report by F. Meyer. Otjikangog Oct. 1884, Quellen 27.p. 60;
Report by J. Ram. Bethanie. 13 Nov. 1884, Quellen 4, pp. 44-45; Repovt by 17.
Heidmann, Rehoboth. 24Oct. 1884. Quelbn 22,p. 300.
Resident Magistrale Simpso,t to Under-Sccretnry for Native AfiaMay 1884,
-~. 1-3,N.A. 291.
de para.i7, supra.
Hintrager. C.. Südruedofrikn in der dcutrchenZeil (1955). pp. 7-8
' Ibid.. pio; C. 426.5. 12.
C. 4262. pp. 7-11, 39-44; C. 4265. pp. 3-7.
' C. 4262, p. GSC. 4190, pp,10,32.
C. 4262. p. 9; Headlam, C.. "The Race forthe Interior". in The Cambridge
Hislory ofthe British Empire, Vol. VIII, 517.
C. 4265, p. 6C. 4262, pp. 36, 50.
years previously-videBritish Letters Patent of27 Feb.1867.C.n4262. pp. 73-74.some COUNTER-MEMOR OIF SOUTH AFRICA 365

as British Territory ', the way was open for Germany to establish her
authority effectively over the territory of South West Africa. This was
done by the conclusion of treaties of friendship and protection with the
various Herero, Baster and Nama chiefs as follows:

(a) on 2 September 1885, with Manasse of Hoachanas, a Nama leader;
(b) on 15 September 1885,with Hermanus van Wyk, the leader of the
Kehoboth Basters;
(c) on 21 October 1885,with Maharero at Okahandja;
(d) on 3 November 1885,with Manasse of Ornaruru, a Hererochief;
(e) on 21 August 1890,with Wiiiem Christian of Warmbad and Jan
Hendriks of Keetmanshoop, two Nama leaders;
(f) in 1894 with other Nama tribes, namely that of Simon Koper of
Gochas and the Swartboois of Fransfontein (after they had asked
for treaties);
(g) it was not until after his defeat by the Germans that Hendrik
Witbooi was induced to sign a treaty on 14 September 1894 2.

51. Dr. Heinrich Goring was appointed Reichskommissarfor South
West Africa and he arrived towards the middle of 1885at Angra Pequena
(the present Luderitz) with a smali staff of officiak to assist him. In
October 1885he made Otjimbingwe his headquarters 3.

K. TheWarsbetween Hendrik Witbooi and the Herero

52. While South West Africa was the subject of diplomatic activity
inEuroue. MosesWitbooi at Gibeon was a~ain ur-uari.. for war a~ainst .,
th(: Ilcr;.ri,. tmi> H~ntlrik wns Iio\r.cvrr, tillc\vit1\'iîioiii aiidide.~ls
of.I~~runiiir-Irii<l IyiiIO:tlit. nurili of tllrr .IOIO \\.hic1II<onsidi:rcd
himself destined to leid his ~eoule. His views caused a sulit between
him and his father 4.~endrik'colfected a band of his own fÔllowers,and

jtarted moving northwards. In une 1884he was attacked by Maliarero,
but after a day's shooting, peacë was negotiated at Onguheva. Irbteralia,
it was agreed that Hendrik Witbooi would be given a free passage to the
north 5.
53. Hendnk Witbooi retnrned to Gibeon as a victor having succeeded
(without being a chief) in doing what the Nama chiefs had been trying
to accomplish for a long time 6.
He now started to make preparations for his march to the unknown
promised land in the north '.In the middle of July 1885he set out, with
aii his people, in the direction of Rehoboth and after his arriva1 there,
he wrote to Maharero that he was "coming to confirm the peace of

' Vide Proclamatio nfIZ Mar. 1878,asconfirrned by LetterP satent,14Dec.
,878.
Vide para. 72,infra: Headlam. The Camhridp History of the British Empire.
Vol. VIII, p. 517;Vedder, H., The Cambridge History of the BritisEhmpive, Vol.
VIII, pp. 094-696V;edder. op.cif., pp. 503-504.
"Hintrager, op. cit., rg;Vedder, "The Gerrnans in South \Vest Africa, 1883-
1914". inTheCantbridge History of the British Empire. Vol. VIII, p. 695.
* Vedder. op. cit., pp. 479-480.
Hottentottep.1884-190(D51929)pp.n6-10.vih Wifbooi, Kapteinvan die Witbaoi-
Vedder, op. cit., pp. 483-484.
' Ihid., p.484.366 SOUTH WEST AFKICA

O~~heva. and to ~ass throueli to the north. in accordance with the -- ~---
promise \&ch Naharero had gven him '."
Maharero replied that he was prepared to observe the terms of their
meenlent. but that he usas sumrised that Hendrik had not ke~t his
promise, viz., that he would do Lis utmost to persuade the other hama
chiefs to make peace with Maharero. Maharero then suggested that
he and Hendrik should meet at Osona to negotiate further Z.
Hendrik Witbooi and his foilowers arrived at Osoqa in October 1885.
Although the two chiefsgreeted each other in a friendly fashion, Maharero
would not aiiowthe Witboois freeaccessto the watering-place.

"It went against the grain of the Witboois ... to be ordered about
by the Hereros. Those who were drawing water tried to take pos-
sessionof the waterhole and the Hereros beat them back '."
In a moment large-scale fighting took place but as the Witboois were
oveml~elmed by a force twice their size they had to flee. Their wagons,
oxen and horses fell into the haiids of the Herero '.
54. Hendrik Withooi was furious, and immediately prepared for war.
It was some time before he had collected a strong force consisting of

his own followers, the Topnaars, Grootdodens, Veldskoendraers and
the unruly elements amongst the Basters. Although Alaharero had been
waiting for Hendrik's revenge for months, he and his people were
caught hy surprise when Hendrik attacked the sleeping inhabitants of
Okahandja on 17 April 1886. However, the Hereros managed to get
into their weU-prepared fortifications and succeeded towards evening
in dnving the Namas back and even in surrounding them5. Dunng
the night the Witboois escaped but the Hereros pursued them. Further
running fights took place at Otjiseva, Otjihavera and at Okapuka.
The Hereros finally overran the camp of the Witboois at Nanas. and
foUowed them as far as Hoachanas. Hendrik was badly defeated and
had again lost everything 6.
55. The only way in which Hendrik Witbooi could continue his
fight against the Herero was by seeking out some mountain fastness,
from which he could make lightning raids against them. This was the

method which Jan Jonker had been employing successfully for a num-
ber of years. Hendrik Withooi found such a retreat at the Gansberg, and
wrote to Maharero that be proposed making war against him in the
same manner as Jan Jonker did '.
In Apnl 1887 he attacked Otjumbingwe and "he took from the
inhabitants . . . everything which they had acquired through years of

' Vedder, op. cil., p. 485.
Ibid..pp. 485-486; Wilbooi to Maharero27 June1884, Die Dagbochvan Hcndvih
Wilbooi (1929). pp. g-IO: Wilbooi 10 Maharcro, 13 Oct. 1885, Die Dagboek "am
Handrih Wilbooi l.~2~. .o.12.
Vedder, op. cil., pp. 486-487.
' Ibid., p. 487; Wilbooi Io Maharero, 19 Oct. 1885. Die Dagboek van Hcndvik
Witbooi (192~). pp. 12-13: Wilbooi Io Hcidmonn, zo Oct. 1885, Die Dagboek van
Hendrik Wilbooi (igzg). pp. 13.r4: Wilbooi lo Mahavero. 3Oct. 1885, Die Dagboeh
van Hendrik Witbooi (rgq), pp. 15-16.
' Letllr by Ph. Diehl, Okahandja,19APT. 1886, Quallen 27, pp. 102-103.
Vedder, op. cit., pp. 490-491: Raport by W. Eich, Okahandja, 24 Apr. 1886,
Qu'lVedder, bp.cit.. p. 491. 368 SOUTH WEST AERICA

several occasions he had to run for his life. Even aiter his father's
foliowers had joined him he could not succeed in conquering Visser 1.

58. While he was thus engaged in trying to bring Paul Visser to
heel. Hendrik \\'itbooi suddenly decided to attack the Grootdodens
who had annoyed him. He destroyed their dwellings and carried off
ail their stock; he kilied the women and children and even had their
dogs destroyed, practically aiinihilating this whole tribe 2.
This action was foilowed UD bv an attack on Arisemab. the chief -~
tlie \'eldskoendraers. \vho \\. \v~ll-dispuse~to\vnrds I>;iuli'isser. Arise-
mal> \i.uiiiidcd ;ind begged Hendrik \\'itl>ooi to spnre tiis life,
but Hciidrik liiriijclf sl~uthriscm;~bdead 2.
Although Paul Visser came onto the scene and drove Hendrik Wit-
booi away, he had come too late to save Arisemab's life. The Veld-

skoendraers then urged him to march against Moses Witbooi who was 1
in the district of Berseba. They told him that Arisemah was killed
because he, Paul Visser, was too slow and he could now only absolve I
himself by killing Moses, Hendrik's father. Paul Visser agreed. They
captured Moses and took him to Giheon in Febmary 1888, where he
and one of his councillors, Adam Klaase, were accused of "high treason"
and sentenced to death. They were both shot 3.

59. Jan Jonker and Hendrik Witbooi, both arch-enemies of the
Hereros, never developed a liking for one another '.Jan Jonker was
glad to hear of Moses'death and he wrote to Paul Visser that he would
now forget about anytbing else and join him in anattack on the Hereros.
After the Hereros were properly humbled, they could jointly march
against Hendrik Witbooi
60. Hendrik Witbooi went to Gibeon in July 1888 to visit his father's
grave and to avenge his death. On 12 July 1888, while Hendrik was
proceeding towards Paul Visser's headquarters at Girichas, Visser
was on his way to Gibeon. Hendrik discovered Paul Visser's commando

first and placed his men undcr cover on both sides of the road by which
Visser's troops were travelling. Hendrik caught them unawares and
the first man to be kilied was Paul Visser, shot by Hendrik himself.
Hendrik defeated Visser's force, destroyed his headquarters and burnt
everything that was not useful and which he could not take with him 6.
61. From October 1888 Hendrik Witbooi was continuously on the
war-path against Manasse of the Red Nation, whom he finally suc-

ceeded in routing in August 1889 '.
There remained only Jan Jonker to dispute Hendrik Witbooi's pre-
dominance. To add to the antipathy between these two men, Hendrik
l
' Vedder. op.cit., ppqgq-497.
Ibid., p496.
' Ibid.. pp.496-497; Witbooi to Jan. Dagboek Hendrik
Wilbooi (igzp),pp.67-68.
' Vedder. O*.cil.. Da?.
Ibid., pA7,
Ibid., pp497-498; R~po~t& Fi Rird, Beneba, IIJuly 1888, Qttell8n29p. 170.
' Die Dagboek van Hendrik LVilbooi (rgzg).pp. 34-38; Hcidrnann fo Bohm, 15
Aug. 1889. Quelle*2%.p. 349; Witbooi IoG6ting. Ir Apr. 1889,Dic Dagboek "on
Hendrik Wifbooi (1929).pp.19-21.booi to Manasse,IO Dec. 1888,Dis Dagboek van COUNTER-MEMORIAL OF SOUTH AFRICA 369

Witbooi had discovered amongst Paul Visser's possessionsJad Jonker's
lettôr suggesting joint action against Hendrik '.
62. In the beginuing of August 1889 Jan Jonker set out with all
his possessions to escape Hendrik's fury, but Hcndrik learnt of his
fiight and followed him 2. Wheu the two forces met, a fierce battle
ensued. Before the issue had been settled, the fighting was interrupted
to enable the two sides to attempt to agree 011 armistice terms. While
the negotiations were proceeding, Jan Jonker was treacherously shot
by his illegitimate son who was a follower of Witbooi. Thereafter the
remaant of the once powerful Afrikaner tribe fled into Hereroland.

Maharero gave them Kuandua in which to live, where they stayed
nntil 1897, when aimost aii of them died of malaria 3.
63. Hendrik Witbooi almost immediately went south and continued
to attack and kili remnants of his Nama enenlies. Bad news from the
north, however, forced him to leave the south. The Hereros and some
of Manasse's men' had attacked his headquarters then situated at
Hornkrans and had killed and captured a large number of his people,
including women and children. It mnst have been clear to Maharero
that Witbooi v-*-lA never leave the matter at rest 5.

M. The Extension of Effective German Control Over South West Afnca

64. It will be recalled that Maharero, under the influence of the
trader Lewis, cancelled the treaty of protection with Germany in Octo-
ber 1888 as a result of the inability of the Germans to afford him any
protection against Witbooi 6.
Early in 1889 a Protectorate Force arrived under the command of
Captain C. von Francois, who first occupied Otjimbingwe '.
In August 1889 von Francois heard that Lewis was planning unrest
and he had an order of expulsion served on him 8.
In the same month, he established a fortified post at Tsaobis (Wil-
helmsfeste) on the road to Walvis Bay 8.
In January 1890 43 more soldiers arrived as reinforcement for von
Francois' troop 9.

Maharero now had reason to reconsider the question of his treaty
with Germany. Witbooi was seeking his life, and he needed assistance,
which the Germans could now provide, to some extent at lest. On
20 bfav 1800 von Francois and Dr. Gorine visited Maharero and the
latter teneGd his former treaty IoHe hso &ked the Germanauthorities
to assist him against Witbooi. Dr. Goring wrote to Hendrik Witbooi

' Vide para. 59, supra: Vedder, op. cil.pp. 493. 498; Witbooi to Olpp. 3 Jan.
1890, Die Dugboekvan Hendrik Witbooi (1~29). p. 68.
Vedder, op. cil., p499.
' Ibid., pp. qgy-500; Resident iMagislrate, Walfish Bay fo Cape Gouernment.
25 Sep. 1889. N.A. 293: Heidmann to Bcïhwz,15 Aug. 1589, Quellen22. pp. 349-351.
' Of the Red Nation-aide para. 61,supra.
Witbooib(~gzg), pp. 69-71.d Manasse, 5 Jan. 1890, Die Dagboak "an Hendrik
Vide para. 56, supra.
' Vedder, op. cil., p502; Hintrager, op.cit., p26.
Hintrager. op.cil.. p27.
Ibid., p. 28.
IoIbid.. p. 24.370 SOUTH WEST AFRICA

in May 1890presenting him with an ultimatum which threatened action
if he failed to stop his hostilities against the Herero '.The reply was
a defiant refusal Z.
65. It was apparent to Witbooi, aç it must have been to Dr. Goring,
that the German force was far too weak to enforce the terms of the
ultimatum. Hendrik Witbooi duly expressed his view by an attack on

the Hereros at Otjituezu in July 1890, in which he looted several
thousand head of cattle 3.Thereafter he canied on several raids in the
following months, even attacking Otjimbingwe where there were Ger-
man otiïcials. in September 1890, and passing with his commando
within a short distance of the German fort at Tsaobis.
Towards the end of September 1890 he attacked Okahandja, losing
many men, but "butchering many Herero women and children" '.
Maharero died on 7 October 1890. His son Samuel Maharero suc-
ceeded him 5.
66. Dr. Goring departed frorn South West Africa in August 1890
leaving von Francois in charge 6.
\'on Francois thought that a conflict with Hendrik Witbooi was un-
avoidable, and requested the Geman Government to send adequate
reinforcements. As his position at Tsaobis was not suitable for the
prevention of Witbooi's raids into Damaraland, he detetmined on the
establishment of new military posts in the area considered by the Ger-

mans as "No-mansland" between Okahandja and Rehoboth. He decided
on Windhoek, which had been deserted since Jan Jonker's tribe fled
from it in 1881, as his headquarters, and took possession of Heusis
as a cattle post. The civil offices of the Administration remained for
the tirne being at Otjimbingwe, while the troops established themselves
at Windhoek in October 1890 '.
67. In May 1891, Hendrik Witbooi wrote to Samuel Maharero ask-
ing hiin wliether he was not yet tired of war and prepared to make
peace. He himself had been quiet since the beginning of the year, but
the tone of his proposals was such that the Herero refused to treat
withhim
In September 1891, Witbooi led his commando to Okahandja, but
had to retire after several successes on account of the exhausted state
of his horses. This retreat gave fresh courage to the Herero, and a
Mbanderu commando marched on Gibeon, which it attacked without
being able to take the place or rnuch hooty. Witbooi retaliated, and

took z,ooo head of cattle east of Okahandja in November 1891. In the
following month he attacked the miserable remnant of the Red Nation
at Hoachanas, and marched in the direction of Seeis, with the ohject
of punishing the Mbanderii for their attack on Gibeon. While on the
march he received a letter from the chief of Otjimbingwe, which changed

1Hintrager, pp. 24-25,
Wilbooi IoGoving, 29 May 1890,Die Dagboek van Headrik Witbooi (1929).
... .-..7.
Hintrager,O$. cil, p25.
' ReridenfMagistrale. WalfishBay, to Cape Gouernment. IrOct. 1890, N.A. 293-
Hintrager.op.tcil.p.25.507.
' Ibid.. p29.
' U.G. 41-1926. para.rrq, p.40. COUNTER-MEMORIAL OF SOUTH AFRICA 37I

his course. In this letter the Herero chief had called him a Bushman,
and he tumed towards Otjimbingwe, which he attacked on 31 Decem-
ber 1801, takinr manv cattle. He retumed with his loot to Hornkrans.
marchcng past the ~e;man fort at Tsaobis '.
In February 1892 he resumed his expedition against the Mbandem,
but was defeated at Otjihaenena with heavy losses. ln the foiiowing
April the Hereros invaded Horukrans, but were unable to take the
stronahold '.
68.-~y this time a prohibition on the traffic in firearms which had
been ordered by von Francois some time previously, made itself felt,
both Hereros and Hottentots mnning short of ammunition. The terri-
tory occnpied by the Germans had been the corridor through which
the hostile ttibes sent their forces, and the Germans had so far been
powerless to prevent this. The Commissioner now decided to pay a
visit to Hendrik \Vitbooi at Homkrans to induce him to conclude

JWXC ancl to niiept a Gcrman I'rotect<ir;itr. IIy iiiaking liberal promises
and 1)).offt:riiigtu rçirui;icertain iiuiiiber of tlic trit~efor servicc \rrith
the Gcrmaii troom. Iic succecdcd in \iiiiiiinu\.cr \Vitbooi's councillurs.
However, Witbooihimself saw no advantaie in subscribing to a treaty
of protection such as von Francois proposed, and again refused von
Francois' offers
69. Von Francois tliereafter decided to approach the Hereros with
a view to launching a combined attack against Witbooi. He negotiated
with Samuel Maharero, who agreed to join him on a certain date with
a Herero commando. Samuel Maharero did not keep his appointment,
making the excuse that he could not assemble his men in time. It
appears that Witbooi had received news of von Francois' visit to
Okahandja, and had promptly offered to make peace with the Hereros.
After varions negotiations, peace was concluded at Rehoboth in Novem-
ber 1892. Witbooi, however, mocked at this peace which he called a
"blah wrede"(blue peace) that is to say a false peace which meant
- -.. .. ..
Q
70. Von Francois was now facedwith the possibility of united action
aaainst the Germans on the art of the Hereros and the Namas. Further
r&forcements were called ior and in April 1893 von Francois' troops
attacked Hornkrans.,The surprise, however, failed. Witbooi and most
of his fighting men escaped. The German troops returned to Windhoek,
and there received news tliat Witbooi had captured their spare horses
from a neighbouring farm, and had taken rzo horses from a German
trader who had imported them from Griqualand for the Protectorate
authotities '.
The guerrilla war which followed went, on the whole, in favour of
Witbooi, whose reptation amongthe other tribes \vas growingsteadily 5.
71. On I January 1894 Major Leutwein arrived from Germany and
took personal command of half the German forces in the country.
Leutwein left von Francois to watch Witbooi, while he proceeded

' U.G. 41-1926. para.114.p. 40.
* Ibid.para. 115.p.40.
' Voigts, G., in Die Dagbo"an Hendrik LVitbooi(1929)..xviii;U.G. 41-1926,
para. 115.p.41.
* Hintrager,op.cil.p..33; U.G.41-1926,para. 117,p.41.
' U.G. 41-1926, para. 117.p.qr.37= SOUTH WEST AFRICA

against the tnbes in the eastern portion of the Protectorate. Andries
Lambert, the kief of the Khauas Hottentots, was taken prisoner at
Naosanabis, and executed for the murder of a trader and several
Bechuanas 1.
A treaty of friendship and protection was next concluded with his
successor, Eduard Lambert. Thereafter .a visit was paid to Simon
Koper, the chief of the Franzmann Hottentots, at Gochas, and asimilar
treaty concluded with him. hlilitary posts were established at Gibeon,
Berseba and other laces Z.
In the meantime: von Francois had established simiiar posts at Keet-
manshoo~....thanie and Warmbad 3.
72. Leutwein took command over the united forces in Tulv 1844
while von Francois proceeded overland to Cape Town on hgmélea;e:
Leutwein thereupon became Governor. He retumed to Windhoek, where

he concentrated-his troops and prepared for a decisive blow against
Witbooi. As his force was uot strong enough, he requested further
reinforcements. The reinforcements arrived in July 1894, and on 27
August 1894,he attacked the Witboois in the Naukluft with three com-
panies, aggregating over 300 men with two guns, and a Baster contin-
gent of 50 men. The occupation ofWitbooi'sstronghold took two weeks.
the German losses being 27 per cent. of their total strength '.
Witbooi reaiized that he could not continue the fight, and on 15
September 1894, he concluded a treaty of friendship and protection
with Leutwein. The IVitboois evacuated the Hornkrans region in ac-
cordance with the peace treaty, and were granted a reserve at their
former home at Gibeon. The tribe kept the peace until 1904, and fre-
quently assisted the Germans against other groups 5.
73. Leutwein proceeded to establish military posts in Damaraland,
first at Okahandja, ostensibly to protect Samuel, who had been recog-
nizcd by the German authorities as paramount chief of the Herero,
against the intrigues of his rival Riarua, and later at Ornaruru, where
he induced hlanasse, the local Herero chief (not to be confused with
Manasse, the chief of the Red Nation Nama). to cede Okombahe to
the German Government, for the use of the Bkgdama6.

A demonstration against the chiefs of the eastem Hereros, who were
disregarding the southem boundary agreement concluded between
Samuel Maharero and the German authorities, resulted in their acknow-
ledging Samuel Maharero as the paramount chief, and posts were
established at Seeis and Oas to guard the boundary. Assisted by Samuel
Maharero, the Germans made a demonstration in force throiigh the
Herero area, visiting the various chiefs. The impression made upon
the Hereros bv tbis disolav of force was not lastine. In March 1806
trouble hroke"out am/ng;t .the eastem Hereros aid some ~hauas
Namas. The Khauas Namas were defeated on 6 April 1896 and lost

' Report by F. Rus!.Cochas. 4 Jan. iRgq, Quelbn ~g, p.28; Hinirager. @. cil..
p. 35; U.G. 41-1926, para. 1i7. p. 41.
' Hintrager, op.rit.p. 35; U.G.qr-igzb, para. ir7, p.41.
U.G.4r-1926,pa~a. 117, p. 4,.
' Ibid.; Hintrager, opcil.p. 36.
' U.G. 41-1926, para. 117, p.41;Hintrager o,. ci!pp. 36-37.
Vide Chap. II, para. 67 supra;U.G. 4,-1926, para. 118,p. qr: Iiintrager,
OP.cit.. p. 37. COUNTER-DIEMORIALOF SOUTH AFRlCA 373

their leader on the battlefield. Nikodemus, a leader of the Hereros,
was likewise defeated and fled towards the north. Reinforcements for
the German troops arrived from all directions, amongst them Hendrik
Witbooi with 70 men. At Otjuandja in the Epukiro area the eastem
Hereros were forced into an engagement. and on 6 May 1896 decisively
defeated l.
In June 1896 a further contingent of 400 men arrived from Germin;
and Leutwein undertook another demonstration through the western
areas of the Hereros, estahlishing new military posts at Outjo, Groot-
fontein, Otavifontein, Naidaus and Franzfontein. By the end of 1897
the total strength ofthe German forcesin the Protectorate was 700men '.
In February 1898 the Swartboois (Namas) of Franzfontein were
defeated at the Grootberg and the whole tribe, 150 men, 400 women
and children, removed to Windhoek l.

N.'The Period 1898-1903

74. By 1898 the whole of the southem part of South West Africa
had been temporarily pacified, and the attention of the authorities was
turned to the economic development of the country, which had been
gravely retarded by almost a century of incessant hostilities as well as
by a severe rinderpest epidemic in 1897. First pnority was given to
communications, and in 1898 a start was made with the construction
of a railway line between Swakopmund and Windhoek. By 1901 Wind-
hoek was in telegraphic communication with Germany and in 1902
the first train steamed into Windhoek station. At the same time; im-
provements were effected to the harbour of Swakopmund and a regular
steamship service to and from Europe instituted.
75. The improvement of communications paved the way for German
settlement. Favourable prices and conditions were laid down to en-
couraae Germans to settle in South West Africa. Between the vears 1804
and Go3 the White civilian population increased from 803 ?O 3,701i:,
However. the relationship between the German authorities and the
Native peoples, particularly the Herero, in time became increasingly
strained. It would be out of place in a general survey like the present to
attempt to analyse al1 the reasons for these deteriorating relations,
particularly inasmuch as they are largely in dispute amongst historians.
Reference may nevertheless be made to one vital factor since it assumed
importance also during the period of Mandatory Administration, and
that is that economic conceptions differed widely between the Hereros
and the Germans. This manifested itself, ilatw alia, in conflicting claims
to land. Thus the Germans bought land from the chiefs, intending
thereby to obtain sole rights of property; but this concept was not
understood by the Herero, who resented being prevented from grazing
their cattle on land which they had sold.
A further source of friction, which reouired attention also durina
tlic 1n:rioclof rn:~n$l:it<~r~.dniini~trariui~.;roi;<:frum the sale ui goods-
on crcdii. .\lm\. Hvrert-8ivtrc uii;il>lcto rcsist tlic t<.niptntion to-inciir
debts in tliis way, and German traders, seeking to secure payment of

' W.C. 41-1926. para. rr8,pp. 41-42. ..
Ihid.para..119, p. qz. .. <
' Hintrager,op.cit., pp3g-41. ;\374 SOUTH WEST AFRICA

these debts, sometimes in ignorance of Herero traditions attached oruzo
or eandacattle which, in terms of Herero concepts, were not disposable
property but were held in tmst for their descendants '.

In order to protect the Natives against their proclivity for incurring
debts, the German authorities in Berlin issued a Credit Decree dated
23 July 1903 which provided that as from I April 1903 2 commercial
debts of Natives would become prescribed after one year. The Decree
was clearly intended to have a long-term favourable effect for the
Natives. But its immediate result was unfortunate: traders started
pressing their debtors for payment of debts, even those that had been
outstanding for years, and this further exacerbated the feelings of the
Natives 2.

O. TheWarsof 1903-1907

1. THEBONDELSWART RISING1903-1904
76. In 1903 serious trouble broke out among the Bondelswarts, a
Nama tribe. Abraham Christian bad succeeded bis father as chief of

this tribe in 1902. In October 1903 he became involved in a dispute
with the district officer at Warmbad, Lieut. Jobst, who led out police
to arrest the captain. The Namas fired on the police patrol, kilüng
the district officer and two of his men. The garrison of Warinbad,
consisting of, II men, was next besieged by the Bondelswarts, and
troops were sent to its relief. Witbooi assisted the Germans with 80
men. The revolt became general amongst the Bondelswarts tribe who
were led by their new chief Johannes Christian. By the end ofDecember
the Germans with zoo German and 300 Nama troops were operating
against the rebels, but the Herero rebeiüon, which broke out early
the following month prevented a decisive blow against the Bondel-
swarts. Leutwein entered into negotiations with them and on 27 January
1904, the peace of Kalkfontein was concluded, in terms of which the
reserve of Warmbad was granted to the Bondelswarts

II. THEHERERO-GERMA WNAR1904-1906

77. \mile the Bondelswart rising was in full swing and al1 available
troops were gathered in the south, the Hereros seized their opportunity
and in the beginning of January 1904 Samuel Naharero gave an order
for al1Germans to be murdered.
Okahandja was taken by the Hereros on II January 1904 and many
of the white inhabitants murdered before they could reach the safety
of the fort. Windhoek was also threatened, but was not actually
attacked. Other militq posts were attacked by the Hereros, and some
of the smaller ones taken and the garnisons and other occupants killed.
Farmen to the number of 150 were murdered on the farms, these

destroyed and the cattle driven away. The relief of Okahandja was the
first signal success of the Gennans. Captain Franke led a column by
Vide Chap. II. para85, 89supra :Vedder, TheGantbridgeHistorof the British
Empire, Vol. VIII.p. 697; Vedder, The Nativa Tribof South West A/rico (1928),
p. 169.
Hintrager,O$.cit.p. 47.
U.G. 41-1926. para. 120,p.42;Vedder, The Cambridge Histmy ofthe British
Empire, Vol. VIII,p.697. COUNTER-MEMORIAL OF SOUTH AFRICA 375

road from Gibeon to Okahandja and relieved the post on 27 January
1904. On the foliowing day the Hereros were driven from Okahandja
and on 4 Febmary 1904 Omaruru was relieved. Reinforcements now
began to arrive from Germany and on II Febmary 1904 Governor
Leutwein assumed direction of military operations at Swakopmund
in person '.

$3. After the preliminary actions and just prior to the main offensive
planned hy Leutwein, his successor Lieut.-General von Trotha arrived
in the Protectorate and took over the command in June 1904. Leutwein
left the Protectorate shortly aftenvards having been its Governor for
II years. His successor immëdiately proceeded $0prepare for a decisive
blow and on II and 12 August 1904 the Hereros were defeated with
heavy losses at Hamakari in the Waterberg. The Witboois as well as the
Basters were represented by contingents on the Geman side. The
majority of the enemy escaped towards the south-east into the arid
Omaheke or Sandveld, which was surrounded by a cordon of troops,
and the Hereros were eraduallv < ' ~eççed on to the Kalahari 2.
By September rgoÇuthe northern portions of the Protectorate had
been cleared of Hereros, and Dr. Friedrich von Lindequist, who suc-
ceeded General von Trotha on 19 November 1905, as Gbvernor, issued
a proclamation calling upon the Hereros to surrender at the mission
stations of Omburo and Otjihaenena. On I May 1906, the portion of
the Herero nation remaining in South West Africa, had surrendered 3.

79. Dnring the first months of the Herero war the Bondelswart
Namas again became restless. They did not abide by the terms of the
peace of Kalkfontein' and had disturbed the eastern boundaries of
h'amaqualand.
When the other h'ama chiefssaw that this action of the Bondelswarts
went unpunished, they decidcd to join in the rebellion. Witbooi who
for over ten years had been a faithful ally of the Germans and had

placed a considerable number of his men at the disposal of the Gerrnan
authonties in the Herero War, listened to the counsel of his under-
captain and repudiated his treaty with Germany
Von Bnrgsdorff, the district omcer at Gibeon, hoping to avoid hos-
tilities with U'itbooi by a persona1 interview, went to him without a
guard, relying on his good personal relations with Witbooi. On the
way he was treacherously murdered. This hap ened in Octoher 1904
and heralded the commencement of a general Kama uprising 6.How-
ever, the Berseba h'amas and a portion of the Bethanie n'amas remained
loyal to the German Govemment. The rehels coilected around Kietmond
and Kalkfontein with a strength of about 600 rifles, and it was not

Empire, Vol. VIII, pp.697-698.2;Vedder, Thc Cnmbridge Hirlory of the British
' U.G. 41-1926,para. 120,pp.42-43.
' Ibid., para,?o.p.43;Hintrager op. cil., p.Sr.
' Vide para. 76s.upra: Veddcr, The Cambridge History of tha British Empire.
Vol. VIII, p. 7w; U.C. 41-1926.para.rzr, p. 43.
' Hintrager. op. cit., p.65;Vedder. The Cambridge Histoffhc British Empire.
Vol. VI11 p.700:U.G. 41-1926,para. 121,p.43.
Vedder, The Cambridge Historyoithe British Empire. Vol. VIII, p.700376 SOUTH JVEST AFRICA

until November 1504 that the Germans were pre are6 to take the
offensive. The Witboois were defeated on zz ~ovem%er 1904 and again
on 4 December 1904 '.
In the next year (1505) the fortunes of war swayed to and fro, but
by the end of the year the superior equipment and discipline of the
German force began to tell. On zg October 1505 Witbooi was run down
and killed in the course of a battle at Vaalgras-now called Witboois-
ende Z.
80. In western Namaqualand a portion of the Bethanie Namas had
risen under the leadership of Cornelius, who at first had assisted the
Germans in the Herero war but had aftenvards murdered a German
officer. From October 1905 to January 1906 he successfully evaded
capture and put the Germans to heavy loss in the Tiras Mountains. In
February 1906 several decisive actions were fought against him along
the Aub River, and on 17 February 1906,Christian Goliath, the captain,
of the Berseba, succeeded in persuading some 160 men with 25 rifles
and 140 women and children to surrender. Cornelius was captured in
the foUowingmonth at Heikoms with 86 men and 36 women '.

81.The Bondelswarts continued to give trouble under their captain
Johannes Christian. From April to December 1906 the German forces
were continually on the heels of Johannes Christian. On 23 December
1906, through the intervention of the Rev. Father Malinowski of the
Roman Catholic Mission, the Bondelswarts agreed to surrender to the
authorities. The peace of Ukamas, early in 1907, marked the end of
the Xama war 1.

P. The Last xears of the GermanPeriod

82. German rule in South West Africa was firmly established in the
years between 1907 and 1914. The wars had necessitated the introduc-
tion of thousands of troops into the Territory, and this had the effect
of bringing the country ta the notice of the German public, whiist the
discovery of diamonds near Luderitzbucht in 1908 supplied a stimulus
to investment and immigration. Many of the soldiers, upon completion
of the campaign, settled in the Temtory. In 1909 the German Govern-
ment commenced the establishment of horse, cattle and sheep breeding
centres at Nauchas, Neudamm and other places.
During the wars, it was found necessary to commence the construc-
tion of further railway lines from Luderitzbucht to Keetmanshoop,
Karibib to Tsumeb, and Windhoek to Keetmanshoop, and this work
was completed after the termination of hostilitieç.
The German Government followed an active land settlement policy.
Farms were granted to settlers on easy terms cf payment; money waç
advanced them by a Land Bank supported by the Government, and
water-boring facilities were provided 3.
However, by 19x4 South West Afnca was still not completely inde-

' U.G.41-1926, para. 121,p.43.
' Vedder, Tha Cambridge Hisfory of the British EmfiVol. VIII.p. 701: U.G.
41-1926.para.rzr, p. qj.
' OfFcial Year Bookof theUnionand O/Basufoland, Bcchua>zalandProfec2ornfe
and Swaziland, So. 3, 1919(1920).pp.876 ff. COUNTER-MEMOR IAFLSOUTH AFRICA 377.

pendent financially, and its economy was heavily dependent on the
production and export of diamonds. Although much had been done
to widen the economic structure of the Territory, and particularly to
promote livestock farming, the central problem of opening up the Terri-
tory and developing its resources still remained unsolved '.

Q. The Position of the Various Population Groups after a Century of Strife

83. As has been noted in Chapter II, supra,'the interminable blood-

shed in the central and southern parts of South West Africa had no
effect on the Ovambo, the tribes along the Okavango, or the inhabitants
of the Caprivi Zipfel. It is interesting to note that the Ovambo popula-
tion, which had been estimated by Palgrave at 98,000 in 1876 =, had
increased to about 150,000 towards 1928 3.

84. The Hereros suffered severely in theu wars with the Xamas and
the Germans. Thus in 1874 Irle had estimated their number at 90,000 4
and Palgrave in 1876 at 84,0005, whereas official German figures in
1912showed only 19,721 6. It must be kept in mind, however, that after
their defeat at the hands of the Germans in 1904, substantial numbers

left South West Africa to settleinBechuanaland or theTransvaal '.Others
fled to Angola, but retumed after 1915 and settled in the Kaokoveld
After the war, the German authorities took severe steps in retribution
against the Herero 9. Al1tribal lands were confiscated 'O and the chief-
ships abolished. In 1907, the Herero were prohibited from owning
cattle ll.
After a century of warfare, the Hereros rvere thus dispersed over the
Territary, and their traditional economic, social, political and religious
institutions, which were al1 dependent on the possession of cattle, to a
large extent broken up. They were forced to gain their livelihood by

'Officia1Year Book, op. cit.pp. 903-905. Vide also the more detailed treatment
cf the suhject in Respondentg r~ply to Applicants' allegations regarding the
economic aspects of the Mandate.
Palgraue's Haport,pp. 48-49,
' Vide Chap. II,para. 33. supra.
' Irle.op. cil.p. 52.
Pnlgraue's Reporl,p. 53.
@ Diedsulschen S~hufrgebiefein Afrjkn und der Südsee, rprz!rgrj, Slatisiischer
'Teil,p.46.
' Hailey, op. cil.p.23.
a van \\'arinelo,05 .c., p. rr.
Again. the question whether theçe steps were justified or not. falls outside the
!;cape of the present çurvey, and has given rise to considerable cantroversy, even
in Germany at the time-vide Hintrager, op.cil.,p. gz.
" Die deulsche IColonial-Geselzgebbung.Sammlung der aufdie deutschen Schutz-
gehiete bezüglicheii Gesctze. Verordnungen. Erlasçe und internationalen Vereinba-
-84-286;iZehnter Rand (Jahrganghre,906).ppNe142,r298.d (Jahrgang 1905). pp.
" Hniley, op. cil., p. 23.378 SOUTH WEST AFRICA

working for others. A result of their changed circumstances was that
Christianity gained favour among the Herero '.This, however, proved
to be largely a temporary manifestation. IVith the relaxation of the
various restrictions and the provision of land for reserves, particularly
after the conqueçt of the Territory by liespondent, there was a rever-
sion to heathenism by the Herero which was symbolized by the iight-
ing of holy fires. After 1915, even grown men, sometimes of advanced
age, submitted to circumcision rites and the fiiing of their teeth '.

III. THENAMA

85. Also in respect of the Nama, a comparison between Palgrave's
figures and the 1912 German figures, shows a reduction in numbers.
Thus Palgrave's 1876 figure was 16,850 ' as against the 1912 figure of
14,320 5. After the 1903-1907 mars, the Gemans, however, adopted a
less rigid attitude towards the Nama than that which had marked their
relations with the Herero. They did limit the amount of stock which
the Nama might maintain, but they also permitted some of the tribes
to use certain defined ~ieces of land 6.
During the wars of ihe nineteenth century, the political organization
of some of the Nama tribes had changed in that the military achieve-
ments ofcertain of the chiefsenabled thëm to assume autocratic wsitions.
Association with the Orlams and the growing influence of-the mis-
sions resulted in the political and social institutions of the original
Namas being increasingly adapted to those of the Orlams, so that, by
the turn of the century, the distinctions between the two groups were
no longer clear-cut '.

IV. THEBERGDAMAS

86. Many Bergdamas shared the fate of their maters, the Nama or the
Herero, in the general hostilities. Their numbers remained unchanged
from an estimated zo,ooo in 1874 to 19,581 (German 1912 figure) 9.
With the defeat of the Herero and the Nama in the 1904-1907 wars,
the Bergdama were for the first time in known history released from
their bondage to these tribes 'O.They secured employment in the towns
and on the farms, and not only were they paid for their labour, but
their living conditions were also much improved. The establishment
of the Rergdama reserve at Okombahe was confirmed after the war as a

' Hailey, op.cil., p. 23.
U.G. 26-,936, p. 25.
Vide also L'edder,The Nafive Trihes ofSouth Werf Africn (rgz8)p.. 178; Chap.
II. paru. 87,supra.
' Pol{raue'sReport. p. 94.
Vie deufsclien Schufrgebiate in Alvikn und der Siidree. rgr21rgr3, Sfntidischer
TciiHailey, op. cif., 28.
' Ibid., p. 31.
Vide Chap. II, para. 63. rupro.
Die deutsclien Schulrgebiefe in Afrikn undder Südree, rgrs/rgr3, Sfafisfischer
Tcil. p.46.
'OVedder, The Native Triber of South Wesf Africa (1928)p .. 44;vide also Chap.
II. para.65.supra. COUNTEH-MEMOR IAFLSOUTH AFRICA 379

reward for assistance given to the Germans '.In the words of Lord
Hailey: "For the first time the Bergdamas could feel that they had lands
which were in some sense their own Z."

87. During the last years of the German period, the European popu-
lation (amounting to 14,830in 1913) ' were engaged in farming, mining,
commerce, and other occupations. Mission activity had commenced
during the early years of the nineteenth century, and by 1920 many
mission stations had been firmly established for many years.
Although the majority of Europeans were Germans, a considerable
portion, particularly of the farming community, were South Africans.

VI. THERBHOBOTH BASTERS

88. As has been shown ', the Basters obtained possession of Reho-
both in 1870, and they have lived there ever since. Before the advent of
the German mle, they had their own system of government, based partly
on the Hottentot pattern, and partly on democratic rinciples. At
the head of the tribe was a Kaptein (Captain) assisted by a i?aad (Council)
of two, and later four Burghers (citizens). There also was an elected
Volksraad or Parliament. The territory (or Gebiet) was governed in
tenus of a body of written laws, called Vaderlike Wette (Patriarchal
Laws). Their economy was based largely on animal husbandry. The
original mother-tongue of the Basters was Nama, but in course of time
they adopted Afrikaans. Their social organization wvasalso modelled
on that of the Eurnpeans 5.
The weii-known ethnologist Dr. E. Fischer estimated their numbers
at 2,500-3,000 in 1912 whereas according to official German statistics
there were 3.544 Bastards in 1912 6.

89. Jn 1906 the German Government, with the consent of the Baster
Community, abolished the office of Kaptein (Captain) and replaced
it with a Gemeendehoof(Communal Head). The Volksraad,too, was
abolished, and replaced with the Uaster Council comprising nine mem-
bers, whose election waç made subject to the approval of the German
Governor. A German magistrate acted as chairmari of this Council,
except when matters of pwely domestic interest were discussed '. The
'Germans made laws for the Gebiet,and in the end the Basters lost
some of their formerrights of self-government 8.
' Hailey,op. cilpp. 34-35: Vedder, TheNative Tribes ofSouth WcrlAfricn (iqzS),
1).44.
Hailey.op. cil.. p. 35.
' Die deutschen Schutzpbiele in Afrika und der Südsee191211913, Sintistische*
Teil, p.22.
' Vide paras.34 and 37. supra.
' Vide Law Book of lhaRehobothBaslcrr. prornulgated in 1872 und 1874. in U.G.
41-1926. Annexure VI. pp. 79-91,
Fischer, E., Die Rehobolher Basfards und das BaslnrdicnrngsprobZernbeim
Südsce. i911!rz, StolistischTeil.pp. 40-41,tschcn Schuligebicte in Afrilrn und der
' Notice issued by the District Alagistrate of Rehoboth, dated30 Jan. 1906,
in U.G. 41-igz6. pp. 91-92,
U.G. 41-1926. pp. 58-59.380 SOUTH WEST AFRICA

R. The Conquest and Military Occupation of South West Airica
by South Airiean Forces

go. During the First World War, the South African Government
undertook the conquest of South West Africa (save for the Eastern
Caprivi Zipfel, which, as has been shown, was occupied by Rhodesian
forces)'.After a military campaign by the South African forces, the
German troo s surrendered on g July 1915. For the remainder of the
war, South 6 est Africa was administered under military occupation
by the South African forces, although a civilian administrator and
officialswere appointed.

Chap. II. par12,sztpra. BOOK IV

CHAPTER 1

INTRODUCTORY

I. Save for the legal issues deait with in Book II of this Counter-
:Mernorial, Applicants' main attack in the present proceedings is based
xpon aiieged contraventions by Respondent of the second paragraph
.of Articlez of the Mandate '.
Respondent has submitted above that the Mandate as a whole
lapsed on dissolution of the League of Nations. If this submission is
accepted. it would follow that, for that reason alone, Appiicants' com-
.plaints in the present regard would have no validity.
However, Respondent proposes entering into the merits of Applicants'
*:omplaints on the assumption, for purposes of argument. that the
Mandate is still in existence 3. This wiii be done in the present and the
succeeding Books of this Counter-Memorial, against the background of
the introductor). material set out in Book III.
2. In view of the comprehensive nature of Appiicants' contentions
regarding alleged contraventions ofArticle 2 (2)ofthe Mandate, covering,
.as the)! do, virtually evely aspect of the administration of the Territory
for the whole period since the inception of the Mandate, Respondent's
reply must necessarily be a lengthyone, which cannotbe accommodated
in one Book '.The reply to Chapter V of the Memorialswillconsequently
be divided into the following Books of the Counter-Mernorial:
Book IV:
Introductory (this Chapter) ;
Statement of the Law relative to Article 2 (2) of the Man-
date (reply to i, pp. 104-108of the Mernoriais);
Reply to Appiicants' Background Information (Chapter
V, paras. 3-10, 1, pp. 109-IIO of the Memorials):
A General Survey of Respondent's Policies in South West
Africa.
Book V: Iliell-being, Social Progress and Development: the Eco-
nomic Aspect (reply to Chapter V, paras. 11-77, 1, pp.
111-131 of the Memorials) ;
Well-being, Social Progress and Development: Govern-
ment and Citizenship (reply to Chapter V,paras. 78-128,
1,pp. 131-143 of the Rlemorials).

Book VI: Well-being, Social Progress and Developmeiit: Security of
the Person, Rights of Residence and Freedom of Move-
151 of the &Iemoriais).V, paras. 129-154, 1, pp. 144-

' Vida Chap. V of the &lernorial1,pp. iaq A.
Vide Book II. Chap. V,of this Counter->lerno"al.
' Vidc Book 1, Chap. 1.para. 2(c), of this Counter-~IernoriaL
Ibid., paras. 3-5.382 SOUTH WEST AFRICA

Book VII: Well-being, Social Progress and Development: Education
(reply to Chapter V, paras. 155-186, 1,pp. 151.161 of
the Memoriais).

Inasmuch as Applicants' "Legal Conclusions" (Chapter \', paras.
187.190, 1, pp. 161-166) consist merely of a repetition of aliegations
made earlier in Chapter V under the various headings referred to above,
Respondent wili deal with them in conjunction with the factual aile-
gations on which they are based.
In view of the fact that Respondent's reply to Chapter V of the
hfemorials is spread over a number of Books, Respondent's forma1
Submission in this regard does not appear in any of these Books, but is
covered by the Submissions in Book Il.
3. On analysis of Applicants' hfemorials, it appears that there is no
complaint or allegation that Respondent has failed to promote the
weU-being and development of a11the inhabitants of the Territory, but
that the charges are restricted to an alleged failure in respect of only
the Native population. Thus Applicants say, in introducing their State-
ment of Facts regarding alleged contraventions of Article z of the
hlandate, that-
"by law and by practice, the Union has foliowed a systematic

course of positive action which inhibits the weil-being, prevents
majority of the people of South West Africa. In pursuit of thisng

systematic course of action, and as a pervasive feature of it, the
Union has installed and maintained the policy and practice of
apartheid Z."
Apartheid, according to the Applicants-
"is a deliberate and systematic process by which the Mandatory
excludes the 'Natives'of theTuritory from any significant participa-
tion in the life of the Territory except insofar as the hfandatory
finds it necessary to use the 'Xatives' as an indispensable source
of common labor or menial service '". (Italics added.)
When finally summanzing their allegations, Applicants repeat the above

the Mandatory's beliaviour and permeates the factual record"as shaped'.They

then continue:
"Deliberately, systematically and consistently, the Mandatory
Ans discrintinated against the 'Native' population of South West
Africa, which constitutes ovenvlielmingly the larger part of the
population of the Temtory. In so doing, the hfandatory has not only
failed to promote 'tothe utmost'the material and moral well-being,
the special progress and the development of the people of South
West Africa, but it has failed to promote such well-beiiig andsocial
progress in any significant degree whatever 5." (Italics addeà, Save
for the words "to the utmost".)

Book 1, Chap.1. para. II.
1.p. 108.
3 Ibid..p. 109.
* Ibid., p161.
' Ibid.. p162. CHAPTER II

STATEMENTOF THE LAW

I. In their Submissions 3 and 4, Applicants request the Court to
declare that:
" 3. the Union. in the resDects set forth in Cha~ter V of this
.\lemorinl and sun;marizcd inSl'aragraphs 139 and rjo tlieréof.lias
pr~ctised uparrhzrd. i.e., lias distinguishcd u to r;ice. color, national
or trilx11oririn in establisliinn the rizlits ;tnd duties of tlic inhabi-
tants of the Yerritory; that sGh praccce is in violation of its obliga-
tions as stated in Article z of the hfandate and Article 22 of the
Covenant of the League of Nations; and that the Union has the
duty forthwith to cease tlie practice of apurtlteid in the Territory;
4. the Union, by virtue of the economic, political, social and
educatioual policies applied within the Territory, which are de-
scribed in detail in Chapter V of this hfemorial and summarized at
Parama~h 100 thereof. has failed to Dromote to the utmost the
riiat&i:riaiidmoral \vcll-beingand socid progress of the inhnbit:~nts
of the Territory; that its failure to do so isiri\.iolation of its ubliga-
tions as sratcd in tho second ~tiraersi~l~of r\rticle 2 of tlie .Ilandate

and Article 22 of the ~ovenant; and'that the Union has the duty
forthwith to cease its violations as aforesaid and to take al1prac-
ticable action to fulfill its duties under such Articles 1."
For the purpoies of tliis Icg:il tirguinent I iiidecd. of the \rliole
;irgiim~.iitrvg:irding rïll~?gecontr:ivcntionj uf .Article2 of tlie \Iandatr)
Respondcnt \r.iassume tliat tlic \Iand;ite is itilliiiexijteiicc.
2. Respondent has snbmitted that this Court does not, in terms of
the Mandate, possess jurisdiction to decide disputes in matters not
affecting the rights or legal interests of other Members of the League of
Nations (whatever meaning this expression may bear since dissolution
of the League); and further that &lembersindividually never possessed
any right or legal interest in the observance by the hfandatory of the
obligations imposed upon it by the Mandate for the benefit of the in-
habitants of the Temtory, except in cases where the breach of these
obligations affected the material interests of individual Lengue hfembers,
either directly or through their nationals.
In the course of Respondent's argument as aforesaid, attention has
been drawn to the wide and general provisions of Article 2. In this
respect it has been snbmitted 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, snch as might well arise if the Court were required
to adjudicate on disputes arising from an aileged breach of the obligation
to ". .. promote to the utmost the material and moral well-heing and
the social progress of the inhabitants of the temtory . .." 3. For the

' 1.P. 197.
Vide Rook II, Chap. V R, paras.2-29>of this Counter-Mernorial.
' Book II, Chap. V B. para. 16. COUNTEK-MEMORIAL OF SOUTH AFKICA 3%

reasons set out ',it was submitted that the authors of the Mandate
did not intend the Court to have jurisàiction to entertain such disputes,
the Permanent Mandates Commission and the Council of the League
being the technical and political bodies speciaiiy charged with the
function of dealing with such matters.
Respoudent abides by the submissions aforestated, and its argument
in the rest of this Chapter is accordingly offered as an alternative there-
to, whichwouldrequire decision only pursuant to a iinding thatthe Court
does possess jurisdiction to entertain disputes arising from the applica-
tion of Article2 of the Mandate, even in cases affecting only the iuterests

of the inhabitants of the Territory.
3. Article z of the Mandate, on which Applicants' said submissions
are based reads as follows:
"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 circumstances may require.
The Mandatory shall promote to the utmost the material and
moral well-being and the social progress of the inhabitants of the
territory subject to the present Mandate."
4. The purport and effect of Article z cannot be fully appreciated
without referring first to Article 22 of the Covenant, in terms of which
the Alandate \vas granted. This Article commenced in its first paragraph
by settingout the principle to be applied to certain territories (including
South West Africa] as beiiig "that the well-beiug and development of
[the inhabitants ofthe said territories] form a sacred trust ofcivilization";
and it further recorded the signatories' agreement that "securities for
the performance of this trust" should be embodied in the Covenant.
This paragraph was clearly of the nature of an introductory statement

of the main objective of the mandate system, together with an intima-
tion that the ensuing provisions would be directed towards the attain-
ment thereof Z.
5. The method designed by the authors of the Covenant to give effect
to their objective, comprised the foilo\ving main elements:
(a) "The best method of giving practical effect to this principle" \vas
considered to be-

(i) that the tutelage of such peoples be entrusted to suitable
"advanced nations" ;and
(ii) "that this tutelage should be exercised by them as Mandatories
on behalf of the League" 3.
The aspect of accountability to the League has been considered
above' and is not relevant for present purposes. In the present
argument, the emphasis will fa11on the concept of tutelage.

Book II, Chap V B. paras.2-29,
Vid~ Book II. Chap. III, para. 13and Book II, Chap. V A, para. g, of this
Counter-Mernorial.
Art. 22 (2) of the Covenant; vide Book II, Chap. V A, para. g (b). of this
Counter-Mernorial.
' Vidc Book II. Chaps. III, para. 14(8). IV, para. 2 clsrq. and V A, para.9
(c), ofthis Counter-Mernorial.386 SOUTH WEST AFRICA

(b) In regard to C Mandates, such as South West Africa, the concept
of "tutelage" would include authority and control over the terri-
tories concerned ',or, in other words, power of government and
administration which could best be exercised "under the laws of
the Mandatory as integral portions of its territory" 2.
(c) However, the "sacred trust" principle required that the "degree
of authority, control, or administration" to be exercised by the
Mandatory \vas to be "explicitly defined" in each case 1 and, in
particular, that the power of administration be made subject to
"safeguards . .. in the interests of the indigenous population",
consisting of-

". . . conditions \\.liiçwiU guarantee frcedom of conscience and
religion.siit~jçctorilyIO the niluntennnce of public ordcr and mords.
tlir i~ruliibitionof nbiises sucli:LS the slave tradc, the .um, tr;iffic
and'the liquor traffic, and 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 defence of
territory .. .'".
6. The scheme set out in broad terms in Article 22 of the Coveuant
was duly implemented. The Mandate for South West Africa was con-
ferred on Respondeut as the "advanced nation" who could "best under-
take this responsibility"'. And, to enable it to perform its functions
as hlandatory. Respondent was granted "full power of administration
and legislation over the territory ... asan integral portion of the Union

of South Africa"
7. The principle that the main objective of the Mandate was Io
promote the "weU-being and development" of the inhabitants (the
"sacred trust" principle) was given effect to in two esentially different
ways. In the first place, provision was made in Articles 3 to 5 of the
Mandate for the "safeeuards" referred to in Article 22 15) and 161.These .
"safeguards" (consistiLg mainly of the "prohibition 0i"ibusei"j placed
certain limitations on the aovemmental powers of the Mandatorv, and
were in effect merely spëcific implemëntations, in certain defined
spheres, of the overriding objective of the mandate system.
Beyond making such provision for the "safeguards" it was, however,
in the nature of things impossible (or at anyrate not considered feasible)
forthe authors of the Mandate to reduce the objective of promoting the
well-being and development of the inhabitants of the Territory to a
series of specific injunctions or prohibitions, breaches of which would
be capable of objective determination. No comprehensive set of mles
can be devised, the application of which in the sphere of government
would inevitably and in infinity have a beneficial effect on the people
govemed. The authors of the Mandate consequently coupled the gr?nt
to the Mandatory of full legislative and administrative powers with

Art.22 (8) ofthe Covenant.
Ibid., Art22 (6).
' Ibid., Art22 (5) read with(6).
* Ibid., Art22 (2).
Art. 2of the Mandate for Geman South West Africa.
Vide Art. 2 (1)of the Mandate. COUNTER-MENORIAL OF SOUTH AERICA 387

a provision which required the &fandatory to "promote to tlie utmost

the material and moral well-being and the social progress of the inhabi-
paraphrase of the main objective of the mandate system as expressede a
in the Covenant-i.e., "the principle that the well-being and develop-
ment of such ~eo~lesform a sacred trust of civilisation"-and in their
context they ioniequently indicate the objective to be pursued by the
Mandatory, or the spirit with which he should be imbued, in exercising
his power-of adminiitration alid legislation. -

8. Some significant differences between Article z (2) of the Mandate,
on the one hand, and Articles 3 to 5, on the other, illustrate the essen-
tiaily different origin and purpose of these provisions. Thus the wording
of Article z (2)is wide and general, which is in keeping with its nature
as an expression of an idealistic objective. The "safeguards" contained
in Articles3 to 5, on theother hand, beingspecificobligations. arecouched
in relatively clear and precise language-they prohibit or enjoin parti-
cular acts or omissions and provide objective criteria by which the
Mandatory's administration may he judged.
The general, overriding nature of Article z (z)as denoting the spirit
in which, or the purposc for which, the Territory is to be administered,
appears also from its position in the mandateinstrument: it isnot inserted
in a separate Article, or included with provisions limiting the Mandatory's
powers (as is the case with Articles 3 to 5). but is found in the same
Article as the grant of "full power of administration and legislation" to
the Mandatory.
g. Reading Article 2 as a whole and in the light of the provisions of
Article 22 of the Covenant, the intention of the authors of the Mandate
becomes quite clear. Save for Articles 3 to 5, no limits in respect of
subject-matter were placed on the full power of administration and
legislation granted by the Article; but the Mandatory was nevertheless
required to exercise these full powers for the purpose of promoting
to the utmost the material and moral well-being and the social progress
of the inhabitants of the Territory.
It follows consequentially that the particular methods whereby this
purpose was sought to be attained, were left to the diicretion of the
Mandatory.
In the Lighthousescase, the Permanent Court said:
". .. any &Tantof legislative powers generally impiies the grant
of a discretionary right to judge how far their exercise may, be
necessary or urgent; . . . It is a question of appreciating political
considerations and conditions offact, atask which the Govemment,
as the body possessing the requisite knowledge of the political
situation, is alone .uali.ied to undertakez." (Italics added.)
More specificaiiy with reference to C Mandates, hlr. Justice Latham,
the Chief Justice of Australia, said:

"In the case of 'C'mandates . . the mandatory power .. :has
full powers of 'administration and legislation over the territory

Art.z (2)ofthe Mandate.
Lighthouses~a~ebeltueenFrancs and Greecc, Judgmcnf, 193#, P.C.I.J., Scricr
AIE, No. 6a, p.22.388 SOUTH WEST AFRICA

subject to the mandate as an integral portion of its territory' (Art2
of the Mandate). 'his provision is in accordance with the tems of
Art. 22 [of the Covenant]. In the original draft of the covenant
the relevant provision of art. 22 provided that tlie territories in
respect of what are now known as 'C' mandates were granted
'can be best administered under the laws of the mandatory as if
integral portions of its territory'. But on the suggestion of the
Japanese delegate the word 'if' was omitted (see Wrigltt. op. cit.,
p. 42).It is clearthalil masintendedthatin thecaseof 'C' Mandates.
ihejullestpowersofgoueritmeits thouldbeconferreduponthemandalorj
power l."(Itaiics added.)
And \vitIlrefcrcnce to tlie mandate system ;ija \vholç,11.Orts. :irnt'riiber
of tlie I'enii:iiiriit \l;iri<lntes Cuiiirnissa:~;. rt-conle<-lto 1iavc sud:

"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
mentalitv were im~osed uoon them.
The dity of the 'Comini;sionwasconfined to discovering whether
the mandatory Powers conformed to the definite obliaations im-
posed upon them by the Covenant and by the mandates. and in
addition,whether, within the limits of these acts, they were honestly
performingtheir tnsk in order to justify the confidence reposed in
them 2." (Italics added.)
Quincy Wright points out that-

". . . the prescriptions of the Covenant and of the mandates vary
greatly in definiteness. Some regulations like tliose 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 '."
And in 1946 Lord Hailey, who had himself been a member of the
Permanent Mandates Commission, stated with reference 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 zz of the Covenant of the League placed on the Mandatory a
general obligation to consider the well being and development ofthe
population whose tutelage it had undertaken. The Mandate laid
down that while the Mandatory should have full power of adminis-
tration and legislation over the territory as an integral portion of
its own territory, it should promote to the utmost the material and
moral well heing and the social progress of the inhabitants. The
primary object of this provision was clearly to protect the interests of
the Xative inhabitants of the temtory. .. .

' Ffrostv. Stevenson. 193758 C.L.R 5.28,atp. 550.
P.M.C.. Min., IX. p. 134.
' Wright. Q..MandaLes Under the Leagus of Nations(rgp), p.226. COUNTER-MEIiIOR IF SOUTH AFRICA 389

In regard, however, to the policy to be observed in Native Affairs

the prescriptions of the Mandate, where they mere in any sense
precise, urereof a negative rather than a positive character. Thus it
required the Mandatory Govcrnment to prohibit the slave trade and
the supply of intoxicating beverages to Katives, to control the traffic
in arms, and to permit forced labour only for essential works and
services. It ~rohibite~~the m~lita~ ~ ~ainine ~ -Natives. S~v~~.or
purpu:c\ of ~;itcrn;ilpulicr and l,>cildefence, and irb?i:irantcçd the
free exrrciic of al1furriiî of wortiin and the frei:cntr\.ulallniisii<>n-
aries belonging to any State mémber of the ~ea@e of Nations.
But in otherrespectsit Zeftthe Mandatory Governmmztlo interpret the
methods by whicl~it shouldpromotethe well beingof theNatives of the
territory. Thus it remaiued/or il to /rame ils own policy, rniithinthis
geiieralobjective,in respect ofmatters such as the control over land,
the svstem of iustice. the ~rocedure of taxation. the extent to which
rcg:ir<l.tioiil(l~beh:ul to i;ati\,I;L\\:iii<l~ii,toiii, tlic ~~ri,visioitio Le
ni.idc fur tliiioiicil %~r\.ic~of 11v:tltha11dcilucatiun, sii(1flic:pdrt

toI)i.taktiiII\11.~X. ati\'t:~ouuI;~ti~iiin tlie i>olilic:iliiistittitioiiiuf tfie
country l." (italics adde&)-
To a certain cxtent this was an amplification by Lord Hailey of a
similar view expressed by him in 1938 aç follows:
"There are indeed certain difficulties inherent in the form which
the mandateshave taken. They indicate gcneral policies, necessarily
in wide or even negative terms. But experience shows that within the
scope of general objectives such as those indicated there is room for

a great variety of methods of approach 2."
IO. As appears from the foregoing, therefore, the only qualification
imposed by Article z (2) on Respondent's full powers of legislation and
administration in respect of South West Africa, was that Respondent
was required to use such powers for the purposc of promoting to the
utmost the material and moral well-being and the social progTess of
the inhabitants. l'lie discretion to decide as to the most appropriate
means of attaining such purpose, vested in Respondent.
II. The nature of the limitation on Respondent's powers in terms of

Article 2 must be borne in mind when considering the correct approach
by the varions supervisory organs in respect of Mandates. Thus the
Conncil of the League and the Permanent Mandates Commission were
reçpectively political and technical organs, which could make practical
suggestions or recommendations, or could level criticisms, on the tech-
nical details of administration of mandated tcrritories,-even in circum-
stances where there was no suggestion that the Mandatory concerned had
actedcontraryto theterms of its Mandate.
12. The Court, on the othw hand, could make no order adverse to
any Mandatory except on the bais of a finding that there had been a
breach of the provisions of the Mandate. This is an obvious result of
the verynature of the Court's judicial functions. In addition, it is implicit
in the Judgmerit on the Preliminar Objections. Thns it was stated that
d andates was ". . . to serve as the final
the role of the Court in respect of

' Lord Hailey. A Suniey ofNotioc Aooirs inSouth West Africa (1946) [unpub-
lished]. pp51-52.
Lord Hailey, An Afriron Survey (1938)p.. 220. Vide also p2.51.39" SOUTH WEST AFRICA

bulwark of protection by recourse ta the Court against possible abuse
or breaches oftheMandate" l.(Italicsadded.)
In the Court's view the main type of dispute for which the compromis-
sory clause had been designeù, \vas where the Mandatory persisted in
Eeague that it constituted "a violation of the Mandate"the Z.uncil of the
Later, when defining the ambit of the rights of Members of the League
in respect of Mandates, the Judgment reads:

". .. the Members of the League were understood to have a legal
nght orinterestin the observancebytheMandatory ofilsobligations. ..
towards the inhabitants of the Mandated Territory ...A". (Italics
added.)
13.Where, as in the case of Articles 3 to 5 of the Mandate, the obli-
gations of the Mandatory relate ta the performance or non-performance
of specific acts, the determination of the question whether a breach,
abuse or violation of such obligations has been committed is, apart
from possible difficulties of interpretation, confined to the ascertainment
of the existence or otherwise of certain objectivefacts.
The position under Article 2 is, however, essentidly different. The
only obligation resting on Respondent in terms of that Article, was ta
use its powers of legislation and administration for the purpose of pro-
Consequently, to establish a breach of tliis Article, it would be necessary4.
ta prove that a particular exercise of liespondent's legislative or adminis-
trative powers was not directed in good faith towards such purpose.
To put the same proposition in a different form, no act or omission on
Respondent's part would constitute a violation of this Article unless
such act or omission was actuated by an intention, or directed at a pur-
pose, other than one to promote the interests of the inhabitants of the
Terntory. If there was any intention at al1that the Court should, in the
interest of the inhabitants, adjuùicate upon allegations of violation of
Article z (2).this is the only possible juridical basis upon which such
adjudication could be undertaken.
14. In advancing the above proposition. Respondent is concerned
onlv with the ~articular situation uertainine under Article z of the Man-
dai~, and i~nÔi to be undcrstood ;s siiggeciiig th:it iiial1case; srherc a
discrction;iry po\i.rr of legislation ur ;idiiiinistr;itioii lia, bccn graiited to
a Dcrsoiior Lod\.. tliiwssibilitv of iiiclicialintcrf~?rrr~crs:vith acts of tlie
hilder of the poGer mu'stnecessarily'be equally limited.
Sa, for instance, a ower may be limited ta certain subjects, as is
freauentlv the case \vit: leeislative as well as administrative iurisdiction.
In suc11instances a legi,l:itivc or adminisir.îti\.e act could <le;~l ivitla
subjczt falling outsidc tliost. incliidcdIIItlir po\rcr. or coulrl transqess
tlieir linlits. and \rriuld ioii:c<iiiciitl\trltr8i~ir?and linhlc to bc:dt-
clared sa by a court of law. ~he same situation would in principle apply
to an act mnning counter to any prohibition or restriction, express or
implied, attached ta a grant of power. Limits, prohibitions and re-

' South West Atrica. Preliminary Objections. Judgm~nt. I.C.J. Reports 1962.
P. 3Ibid.. p. 337.
Ibid.p. 343.
' Vide para.io. supra. COUNTER-MEXORIAL OF SOUTH AFRICA 3g1

strictions of the kind mentioned need not be, and frequently are not,
concerned with a question of purpose at all, with the result that the ele-
ment of Durnose. or rood or bad faith. could in such cases be irrelevant
to an alregahon of Golation, the only question being whether the act
complained of in fact falls within or outside the limits of the power as
prescribed. Aiiegations of violation of certain of the provisionsof Articles
3to 5 of the Mandate would fall in this category.
Again, the manner in which a pwer is defined and circumscribed,
even if the limitations include a reference to a purpose. may be such as
to give rise to genuine misunderstanding on the part of the holder of the
power as to the nature or scope of the pwer or of the purpose. In such
circumstances thcre would be room for a ~ossiblefindinr that the holder
has committed a violation by reason of puÎsuing an unauchorized purpose.
despite a complete absence of mala fides on his or its part.
However, these and similar considerations do no{ arise in respect of
Article 2 of the Mandate. The "fuii power of administration and legis-
lation" granted in terms of the Article covers the whole field of govern-
ment, the only limitation (apart from Articles 3 to 5) beiog the element
of purpose. And both the power and the purpose are defined in such a
manner as to preclude any possibility of misunderstanding. (Indeed, as
willbe shown later, the Applicants donot allegeor suggest any possibility
of misunderstanding.) The question before the Court can therefore in
essence only be one of intentions; or -ur-ose, or .ood faith.
15. The conclusion stated in the previous paragraphs, is supported
bv a further consideration. The Court is a iudicial orcan and can accord-
i@ly not come to decisions otherwise t6an in acGordance 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 poiicy and weigh it against other policies which
might be followed in an attempt to achieve sucli a purpose. In order to
amve at a decision, the Court would thereupon have to decide which
policy it cousiders best. The Court's function in so deciding would be one
which is. in its very nature, not a jndicial one. No legalcriteria can be used
in such adjudication. The decision can only be based on social, ethno-
logical,economic and poiitical considerations.
It is trne that a particular provision of a statute in municipal laiv, or
of a treaty in international law, could have the effect of requir~ng a
court to venture ont0 one or otlier of these terrains. The particular
provision or stipulation itself then provides the Iegalbasis upori which the
Court is to act; and with the assistance of such special prescriptions,
if any, as may be contained therein, the Court would have to perform
the function concerned as best it could. But such a situation is always an
unusual and exceptional one l,involving, as it does, a departure to a
greater or lesser extent from ordinary legal noms as the criteria for
decision; and in the absence of explicitly clear language or manifest
intent, an instrument will not readily be understood as requiring such
a function of a court of law.
An analo~ous illustration of the need for an exceptional arrangement
to Lirirtgabtiut a dcparrure frorn ordinar!. Icgal norms as tt~ecritcrin for
n(ljii<lic3tiohy a cuiirt.i;;iffordi!dhy Article 38 of tliijlatiitc of th15
honourablc Cuiirt. Paracra-~l* I of ttie :\rticle srarcs ttini rtic Court's
' l'ide Roak II, Chap. V B.paras.ru-17, of this CounterJlemorial COUNTEK-MEMORIAL OF SOUTH AFRICA 393

signifiant degree whatever. On thecontrary, ej$ortsofIlieUnionhave
in fact beendirectedto the opposite end. i3y law aiid byprac!ice, the
U?iionhasfolloweila systematiccozcrseofpositive actionw iich inhibits
the well-being, prevents the socialprogress and thwarts the develop-
ment of the overwhelming majority of the people of South \%'est
Africa '."(Italicsadded Savefor the words "to the iitmost".)
And again:

"A sober and objective appraisal of the factual record, as herein-
after detailed, compels the conclusion that apartheid. as actually
practised in South \\'est Africa, is a deliberateand syste~naticprocess
by which the Mandatory excludes the 'Xatives'of the Territory
from any significant participationin the life of the'ïerritory except
insofat as the Mandatory finds it necessary to use the 'Natives' as
an indispensable source of common labor or menial servicez."
(Italicsadded.)

Later, the actions of the Respondent to which exception is taken are
stigmatized as constituting "a deliherate, systematic and consistent
course of conduct" discriminating against the Xative population of the
Territory '; "a consistent course of positive action which inhibits the
well-being and prevents the social progress and the development of the
larger part of the population" '; "a systematic and active programme
which prevents the possibility of progressby the 'Native' population" 5;
"a systematic course of positive action which thwarts the well-being,
inhibits the socialprogress and fmstrates the development" of the Native
population 6; "deliberate policy and practice" 7; "deliberate and syste-
matic control of the processes of ediication" "positive action which
drastically restricts opportunities for educationM8; "cohesive and
systematic pattern of behavior" 9.
In their Final Conclusion, the result of the foregoing is summed up in
the following words:

"In its administration of .. . South West Africa, the Union, as
mandat or.^,has kllowiizgly and dcliberately violated the letter and
spirit of the second paragraph of Article z of the Mandate and of
Article zz of the Covenant upon which Article z of the Mandate was
based 1°." (Italicsadded.)

18.Althongh the Applicants do make the allegation, e.g., in the first
,<ssage quoted in the previous paragraph 11, that liespondent has
failed to promote such material and moral well-being and social pro-
gress:', they do not appear to make any independent or alternative cFe
relative to this allegation, but state it purely as a consequence flowlng

Zbid.. pp. 108-rog.
Ibid.. p. "7.
' Ibid.. p.130.
' Zbid.. p.143.
6 Ibid..A. -<-~
Ibid., p.159.
Ibid.. p.160.
Ibid., p.161.
IoZbid.. p. 166.
" Vide al50 1.pp. i 17, ..o.143,151.152. 160 and 162.394 SOUTH WEST AFRICA

from the positive course of da fide conduct which they seek to lay to
Respondent's charge.
This is apparent not only from the manner of formulation of the
charges ' but also from the nature of the material sought ta be adduced
in support thereof. Respondent,in submitting that the Court can arrive
at a conclusion of violation of Article z only on the basis of a finding that
Respondent has used its powers of administration and legislation for
an unauthonzed purpose, has pointed out that there are not norms of a
legal (as distinct from a political or technical) nature for deciding on
merit whether a Mandatory ha or haç not promoted well-being and
progress ta the utmost. It is significant that Appiicants themselves do
not suggest any such norms. They do not in any way suggest or indicate
wliat standards ought to have been achieved. They make no attempt
at objective assessment or even description of the circumstances per-
taining to the task undertaken by the Mandatory, and of the effect which
those circumstances could be expected ta have upon the rate of progress
and development. They do iiot systematicaliy compare conditions,of
weli-being and progress as they existed in the Territory in 1920 wlth
the conditions existing today. They do not even refer at al1to standards
in fact applying in comparable territories and circumstances.
19. From the foregoing it becomes patent that Applicants' assertion
that Respondent "has failed tu promote" well-being and progress on

the part of the Natives, "to the utmost" or "in any significant degree
xvhateyer", is a mere deriration from the charge that "efforts of the
Uition have in fact been directed 10 the opposite end" Z, and that Appli-
cants' real and only case against Kespondent in respect of Article z is
acharge of bad faith. Applicants themselves indicate this almost expli-
citly in the following passage:
"Deliberately, systematically and consistently, the Mandatory has
discriminated against the 'Sative' population of South \l'est Africa,
which constitutes overwhelmingly the larger part of the population
of theTerritory. 1,~sodoing. the hlandatory has not only failed JO
promote 'tothe utmost'the material and moral well-being, the social
progress and the development of the people of South West Africa,
but it has failed ta promote such well-being and social Frogress in
any significant degree whatever 3,"(Words "In so doing 'itaiicized
by Respondent.)
20. In their Submission 3' Applicants' complaint is formulated as
follows:
"The Union,in the respects set fafi inChapter \' ofthis Nileinorial
and summarized in Paragraphs 189 and go thereof. has practised
a$ytheid, i.e., has distinguished as to race, color, national oi tribal
orign in establishing the rights and duties ofthe inhabitants of the
Territory .. ."

that Applicants make the case that any distinction as to race, etc., I?

establishing the rights or duties of the inhabitants of the Territory, 1s

Vidc also1,pp. rri, 130.143, 15r-r5z.160 and iG2
1.p. 162.. r7. supra.
' Quoted in full in parai,supra. COUNTER-MEMOR IAFLSOUTH AFRICA 395

jber se ta be regarded as a violation of the Mandate. The Submission
commences, however, with an incorporation by reference of "the respects
set forth in Chapter V of this Memorial and summarized in paragraphs
189 and go thereof". These incorporated "respects" render clear that
the possible impression just mentioned cannot be correct. It wiU be re-
called that Applicants have been carefd ta set out explicitly what they
allege is ta be understood under the term "Apartheid". and that they
have inserted this "definition", inter alia, in paragra h 189 of the

Memorials '.Keference to the definition, aç well as to t ge further con-
tents of Chapter V generally, including paragraphs 189 and gothereof,
conclusively demonstrates that no part of Appiicants' case is founded
on the mere existence of distinctions between the rights and duties of
various gronps in the Territory, but that the basis of their whole case
is asset out in the preceding paragraphs.
21. To conclude, the case alleged against Respondent, in regard to
the suggested breach of Article 2 of the Mandate, is one of bad faith
in the exercise of its powers in terms of the said Article, in thesense that
it has pursned actions ostensibly within its powers for a purpose not
authorized thereby. And an analysis of the mandate instrument and the
Covenant shows, in Respondent's submission, that this is in law the only
possible basis on which such a case could be sought to be fuunded.

22. By making use of some of the provisions of Chapters XI, XII and
XII1 of the Charter of the United Nations, which are said to be in pari
materia with Article 22 of the Covenant and Article 2 of the Mandate.
Applicants seek to read into the general statement of objective in Article
2 (2) of the Mandate certain "clear and meanin~ful norms marking the
du'ty of the Mandatory
It is submitted that the invocation of the principle of in pari materia
as an aid ta interpretation in the present caçe, is entirely unjustified. The
onIy authority relied upon by Applicants in this regard j, is a passage
from the case of Interpretation of the Convention of 1919concerning
Employment of Women during the niight 4. In that case the Court, in
intemretine ..e convention. \vas led to "attach some imoortance" to
thc prtPsc.nl:of a ]>.?rtiiular],ruvi;i.>itin ~inotli<,rîoii\.tiii'Ili)rr:~51~11
givcn IIY rlic Court forIIILiii\o~:nt1ciui IILCin par in.itr.ri~>riiicipl:..ii
the "siriiillritv Ilt~tiiistrucriirc aililiiit?uurci~ii>ii vtii~il rlie \,ariuii3
draft convengons adopted by the Labour Conference in Washington in
1919".
It isunderstandable that where a oarticular conferenceado~ts anumber
ofsiriiil.tr sriiii.t:iirtli,ti:riii%oftnïuf tliriii iii:ryIii:ofiui;ic ,riiiîi.~n~~
in iiitcrprcriiig ;inotlicr. I'o ;ti,rrt, lioi~ci~~rta.convciitioii coniliidcd
in 1114~canbë used asan aid to ascertain the intentions of the parties to

a c6ri;ention concluded between different States in 1920, i:, in Re-
spondent's submission, so obviously absurd as not to warrant serious
consideration

Vide Chap. 1.para. 3, supra
1,pp. 104-108.
' ~bid.,pp. 105-106.
' P.C.I.J., SerieAIB, No. 50.
' Vide Interpretotion of the Conventiaf 1919 concerninp Emplayment of Women
during the Night, Advisory Opinion,1932, P.C.I.J., Sevies AIB, No.50.at p. 377,3g6 SOUTH WEST AFRlCA

23. The provisions of the Charter cannot, therefore, be relevant to
the interbretation of the Covenant andthe mandateinstmment. Whether
the!.~I<III rlieir o\ili rifilit ui :~pliliiat1.).\laiidatei,i iiij;,clii~stiuii
\v111c1a1ri,cj in rlicprc~t:i~t~JI~C~.~~~IIIIII tl~~, .\ppIir,~rits' %vltul:,I+
13 b~skd on rlic urc~vijionsof the \l.liidntc 1.l'lie o111\.r,i,ibl: relcv.iiice.

in the present proceedings, of the provisions of the Charter, is that they
may afIord evidence of what was in 1945 considered propèr aims of
administration in dependent territories. As such, the Charter could
conceivably be a factor from which, together with al1 other relevant
material, an inference of good or bad faith on the part of the Mandatory
might be drawn.
For this purpose it is, however, important to read the relevant pro-
visions as a whole; and it is particularly instructive to refer to their
text with emphasis on the qualifications rather than, as in Applicants'
citation 2,on certain aspects of the obligations. Thus Article 73 pro-
vides as follo\vs: .

"Members of the United Nations which have or assume respon-
sibilities for the administration of territories whose peoples have
not yet attained a full measure of self-government iec*ize the
principle that the interests of the inhabitants of these territories
are paramount, and accept as a sacred tmst 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 territories, and, to this end:
(a) to ensure, with due respect for the culture of the peoples con-
cerned, their political, economic, social and educational ad-
vancement, their just treatment, and tlieir protection against
abuses; .
(b) to develop self-government, to take due account of the political

aspirations of the peoples, and to assist them in the progressive
development of their free political institutions, accordingto the
particular circunzstancesof each territoryand its peoplesand Lheir
varying stagesof advancement.. ." (Italics added.)
Article 76 provides:

"The basic objectives of the trusteeship system . . .shall he:
........................
(b) to promote the political, economic, social and educational
advancement of the inhabitants of the trust territories, and
their progressive development towards self-government or iu-
dependence as may be appropriate to the particular circum-
stances of eachterritory and its peoples and the f~eelyexpessed
wishes of thepeoples concerned ...

(c) to encourage respect for human rights and for fundamental
freedoms for al1 without distinction as to race . . ." (Italics
added.)
In so far as the above provisions (or some of them) may be in advance

where the Court refused to apply the in pari nnteria principle when it was sought to
invoke the provisions of the Berne Convention of 1906 in interpretinthe Washing-
ton Convention of 1919.
' And necessarily so,regard heing had to the cornprornissory clause on which
they1,ep.108. jurisdiction. COUNTER-MEMORIAL OF SOUTH AFRICA 397

of what was current thought in 1920, Respondent is iievertheless in
entire accord with them, provided they are read as a whole, i.e., without
disregarding the qualifications inherent in them. As will be shown later
in this Counter-Memonal. Respondent's policies have in fact heen
designed to give effect to the principles underlying the above-quoted
provisions of the Charter.

24. Having made the submission regarding "clear and meaningful
norms" as stated above ', Applicants proceed to formulate certain
specific duties which they allege are, in accordance with the said legal
norms, included in Respondent's ohligations as Mandatory Z.
Uefore dealing with some of these specific duties, one general aspect
must be empliasized, namely that the duty to promote the material
and moral well-heing 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 specific "clear and meaningful norms" relied upon by Appli-
cantsz. can, on the whole ', be said to he matters to which regard
ought to be had in the exercise of the Handate, it must be kept in mind
that they represent ultimate aims, which in certain circumstances or
at certain stages of development may be inconsistent or even irrecon-
cilahle. It is therelore artificial, in Respondeiit's suhmission, to divide
Respondent's duty in terms of Article 2 of the hfandate into a numher
of different obligations and then to suggest, expressly or by implication,
that Respondent is obliged to attempt to comply with al1these ohliga-
tions to the same degree at the same time. Respondent's duty is to'pro-
mote the total material and moral well-heing and social progress of
the inhabitants, and in the process of performing this duty particular
aspects of suclr well-being and progress may, in the exercise of Respon-
dent's discretion,' receive particular emphasis, or may, conversely, he
deferred or even reduced for the purpose of achieving a greater and
compensatory improvement in some other respect.
25. As has been noted above, Respoiident is in general agreement
that the duties referred to by Applicants. constitute matters to which
regard is to be had in administering the Mandate. To avoid misunder-
standing, however, something more reqiiires to be said in regard to
three of them,as will be done in the next succeeding paragraphs.
26. The first duty which is said to be included ivithin the general
terms of Article z of the hfandate, reads as follows:
"Economic advancement of the population of the Temtory-
and notahly of the 'Natives' who constitute the preponderant
part of the total population in agriculture and industry . .. "'
Respondent acknowledges a duty to promote the economic progress
of al1the inhabitants of the Temtory, and considers that no group can
claim any preferential treatment Saveupon the basis of its needs, which
may be greater than those of other groups and for that reason require
special attention.
Respondent does not, however, accept the proposition, which seems

1,pp.p108-109.upra.
Subjectto what is said inpares25-28,infra.
1,p.108. SOUTH WEST AFRICA
398

to be implicit in the above-quoted "duty", that it owes a special obliga-
tion towards certain inhabitants of the Territory merely because they
are Natives, or merely because they constitute the greater part of the
population.
27. Applicants' duty No. 3 seeks to impose on Respondent the
obligation to promote the "political advancement of [the inhabitants
of the Territory] throughvightsof szcffrage ..." '.(Itaiics added.) Neither
in the Mandate, nor in the Charter, is there any provision requiring
thatthe political advancement of theinhabitants of dependentterritories
should necessarily be promoted "through rights of suffrage". Whereas
Respondent admits that it is under a duty, inter alia, to promote the
political advancement of the inhabitants of the Territory, it is submitted
that the method to be adopted in this regard rests in its own discretion,
which is to be exercised by applying policies "as may be appropriate

to the particular circumstances of [the] territory and its peoples" Z.
Respondent, while in no way opposed to the idea of suffrage for al1or
any peoples in appropriate circumstances, does not consider that pro-
vision for such rights in one integrated political entity is the only or
best method of achieving poiitical advancement in al1 cases, and is
satisfied that it would certainly not be the best method for the peoples.
of South West Africa.
28. Applicants' duty No. 5 reads as follows:
"Equal rights and opportunities for [members of the population
of the Temtory] in respect of home and residence, and their just
and non-discriminatory treatment 3."

Respondent is in entire accord with this proposition, although it iç
evident that differences could arise as to the best methods of giving
effect to the ideal expressed therein. Respondent must stress that in
its view the expression "equal rights and opportunitiesP is not to be
interpreted to mean "identical rights and opportunities". In later parts.
of this Counter-Memorial Respondent will show that differential treat-
ment is often the only way of achieving in practice the ideal of equality
for various population groups. Reference may in this regard be made
to the Minority Schoolsin Albania case, where the Permanent Court said:
". . . equality in fact may involve the necessity of different treat-
ment in order to attain a result which estab~ ~h~ ~ ~ eauilibrium
between different situations.
It is easy to imagine cases in which equality of treatment of the
rnajority and of the minority, whose situation and requirements.
are different, would resnlt in inequality in fact ... 4"

29. In the succeeding Chapters inthis Book, Respondent will, after
dealina first with backeround information. survev the broad lines of
policYuadopted by it in>romoting the well-being'and progress of the.
inhabitants of South West Africa.

1, p108.
Art. 76 (b) oftheCharter.
VI. p.rog.
'Minority Schoolrin Albonia. Advisory Opinion, 1935P.C.I.J .,ries AlB. No..
64.P. 1% CHAPTER III

BACKGROUNDINFORMATION:AREA AND POPULATION

I. In this Chapter Respondent replies specifically to the statements
and ailegations contained in paragraphs 3 to IO of Chapter V of Appli-
cants' llemorials '. For the most part the reply concerns information
which has been set out systematicaiiy in previous Chapters Z. It will
nevertheless be convenient to summarize, or refer to, such information

with specific reference to the relevant paragraphs of the 3lemorials.
2. Paragraph 3.
(a) The area of South West Africa, according to figures obtained
from the Surveyor-General of the Territory. is 824,269 sq. km.
(318,261sq. miles) '.
(b) The Territory isnot divided into two main segments (or admin-
istrative units) as alleged by Applicants, but into three; viz., the

Police Zone, the northern section beyond the Police Zone, and the
Eastern Caprivi Zipfel. Such division was not effected by Respondent
as alleged by Applicants. but had been introduced by the former
German administration. The division reflected different attitudes
on the part of the German authorities to the administration of
these three areas. Thus the Police Zone was the area under direct
control of the authorities and was patrolled by the police (whence
its name), whereas the northern section was never snbject to
German control at al1 (Save, to a limited extent, the Kaokoveld).
The Eastern Caprivi Zipfel occupied an intermediate position
whereby German control was exercised in an indirect way by
making use largely of the traditional tribal authorities +.

(c) The northern section (i.e., excluding the Caprivi) consists mainly
of the Kaokoveld, Ovamboland and the Okavango. The main
population groups in the Kaokoveld are the Himba and Tjimba
as well as certain Herero who Red from the Territory during the
war against the Germans in 1904-1906, but returned after the
German defeat in 1915 6.
The composition of the population of Ovamboland andthe Oka-
vango has been set out above 7.
(d) The areas of these vanous sections are as folfows g:
Police Zone: 570,980 sq. km.

(220,463sq. miles).

1 1.pp, 110-rrr,
2 Vide Book III, Chaps. 1 to IIIof thiç Counter-Mernorial
3 Ibid.. Chao. 1. "ara4.
* 1bid.i ~i:~ara.'rl.
3 Two trihes closely related to the Hererwho remained behind when the early
Herero migration left the Kaokoveld-vide Book III. Chap. II. paras.81 and 82.
Vidc Book III, Chao. III,mua. 84.
Ibid.C,hap. II. part&22 Gd 33.
8 Departmental information. SOUTH WEST AFRICA
400

Xorthern section and the Eastern Caprivi:
253,289sq. h.
(97.79 s8. miles).
It will be seen therefore that the figures given for these sections
in paragraph 3 of Chapter V of the Alemorials, and for which no
source is quoted ', are entirely erroneous.
(e) It is correct to say that the Police Zone embraces generaüy the
southern and central sections of the Territory, and also that it is
larger and better developed than the northern section and the
Caprivi. Kespondent is not sure, however, what Applicants mean
to convey by referring to the Police Zone as "richer" and to the
northern section as "noorer". If these adiectives are meant to
refer tu the rclative eatent of natural resokrces of the two parts
ofthe Territory, Respondent disputes this allegation.
-
As far as land resources are concerned, the areas beyond the Police
Zone (and, in particular, Ovamboland, the Okavango and the Eastern
Caprivi) are sitnated in the most favoured part of the Territory. It wili
be recalled that the northem and north-eastern parts of the Territory
have the combined advantages of a higher annual rainfall, a longer rainy
season, and less variability in rainfall2. These areas are consequently
best suited for dry-land cropping ', stock farming ',and timber exploita-
tion 5. In addition, the highest potential for irrigation is found in those
parts of the Territory 6. The region in which al1 these advantages are
combined (called the northern and north-eastern cropping and large
stock farming region) 7,falls entirely within parts of Ovamboland and
the Okavango, and covers the whole of the Eastern Caprivi. The rest
of Ovamboland (with the exception of a portion to the extreme west)
and the Okavango faIl within an area which is also a favourahle one
compared to the rest of the Territory
3. Paragraph 4.
The 1951census figure given in this paragraph is correct. Respondent
is not called upon to reply to the alleged 1958 estimate, and refers to
particulars of the 1960 census as given below 9.
It is admitted that one of the classifications employed for census
purposes, is the one referred to by Applicants. In addition, the officia1
census classifies the total population in groups according to the geo-
grapliical distribution, home language. sex, occupation, etc., of individual
memhers thereof. v

4. Paragraph 5.
In this paragraph Appiicants state why they refer to the various
-.pulation gr.ups .n the way they do; and Respondent is not caüed

relevant sentence in para.3iof the 3lernarials containsnoufigures relating to the
areas of the two sections.
Vide Book III. Chap.1, para. 15.
3Ibid., para.zg.
'Ibid., para.3r.
'Ibid., para.32.
Ibid., para.25.
' Ibid., para. 33 and Map g.
The north-eastern large stock and sub-marginal cropping region.
Vids para. 5, infra. COUNTER-MEMORIAL OF SOUTH AFRICA 401

upon to reply thereto. Respondent would point out; however. that the
:Temtory'spopulation is a heterogeneous one, apdthat the classification
thereof in various groups for various purposes is not an artificial or
arbitrary one, as Applicants would seem to suggest. It will have been
seeu that the terms "Whites" and "Europeans" are used in the Counter-
Memorial to denote the same population group.
" The degation that the division of the population intogroupsreflects
differences in the legal,as wveU as in the economic and social, status of
the inhabitants", will be dealt with in reply to Applicants' specific
aiiegations in this regard. ' -.
5.Paragraph 6. . ,
The allegations in this paragraph regarding the 1951 census are
admitted. liespondent repeats that it is not caiied upon to deal with
the deged 1958 estimate. . .
According to a census taken in 1960. the numhers of the various
sections of the population referred to by Applicants, were as follows:
Natives .......... 428,575
Whites ................. 73,464
Coloureds .................. 23,963
Asiatics ................. . . 2
Total ... 526,004 .

A division irito the main population groups of the Temtory, gives
the following result ':

Appronimate%
. . Groups Total population

1. Bushmen. .... 11.762
2. Dama ...... *y353
3. Nama ...... 34,806
4. Herero ...... 44,588
5. Ovambo ..... 239.363
6. Okavango .... 27,871
7. Caprivi. ..... 15,804
8. Rehoboth Basters . 11,257 :
IO.. White or European . 12,708
Group (Afrikaans,
German and English
speaking) ..... 73,464
Tswana. .... 2,632
..... 60I
Other (not
classified) .... 6,759

Total ... ~26.004

' Departmental information (SoutAfrican Bureauof Censuç and StatisticThe
rhe South West African Administration on thebasis of reports and information
obtainedfrom officids.402 SOUTH WEST AFRICA

6. Paragraph7.
The figures quoted are correct, save that the population of the Police
Zone was 206,169, not 203,169, and that it included three Asiatics. Ac-
cording to the census taken in 1960 the populations of the Police Zone
and of the area outside the Police Zone were as foilows:

Outsidethe
PoliceZone Police Zone

Natives ....... 170,720 257.855
Whites 73,106 358
Asiaticsds......... 23,952 -9

Total ... 267,782 258,222

The higher density of population inthe area outside the Police Zone
is to be ascribed to the more favourable conditions for agriculture in
the sector ' aswell as to historical circumstances 2.

7. Paragraph8.
The statement that the vast majority of the population outside the
Police Zone live in the Ovamboland Native Keserve is correct. Respon-
dent is not called upon to comment on the alleged 1956estimate.
According to the census taken in 1960, the Native popiilation of
Ovamboland numbered 203,666. White persons rgj, and Coloureds I.
The figures for the other areas outside the Police Zone were. according
to the same census. as follows:

Eastern
Kaokoveld Okavanao Caprivi
Natives.. .... 10.099 28,252 15,840
Whites .......
Coloureds ..... 32 -104 26

8. Paragraph g.
This paragraph is admitted. The significance of the classification of an
area as"urban" is that urban local govemment as known to Europeans,
is in force in the area. Beyond the Police Zone, there are no towns or
villages of the European type, the Native mode of living being different.
Furthermore, such limited local concentrations of people as may be
found there, fall under the authority of traditional Native institutions,
and not under the type of municipal institutions in force in the Euro-
pean towns of the Police Zone.

Vide para.z (d).supra.
VideBook V. Sec.B. Chap. IV.para. 1.ofthis Counter-Mernorial. COUNTER-MEMOR IF SOUTH AFRICA 403

9. Paragraph IO.
The 1951 census showed the home languages of the White population
to be as follows:
English and Afrikaans ........... 273
English ................. 4,158
Germanans .................. 11,931
Other.. ........... 477

49.930
In 1960, according to the census held in that year, the position re-
garding home language was as follows:
English and Afrikaans ...........
Afrikaans ................. 49,422
English ................. 6,280
German ................. 16,533
Other.. ................ 832

73,464
The nationalities at the time of the 1951 census were as follows:
South Africa ........... 41,048
South Africa naturalized ...... 4,391(45,439
British Commonwealth ....... 237
Germany ............. 3.493
Other countnes .......... 761
49.930

The reference to "mid-1958'' in paragraph 10 is not understood. The
figures quoted refer ta the 1951 census, as will be seen from the above.
available, but Respondent agrees that by far the greater part of the yet
White population consists of South African citizens. CHAPTER IV

A. Introductory

I. The policies applied by Respondent in its administration of South
West Africa were £rom the outset shaped largely by circumstances pre-
vailing in the Territory. ln this regard, the basic situation as Respondent
found it at the inception of the Mandate has been sketched above '.
As has been shoyn 2, the natural environment of South West Africa is
to a large extent unfavourable for man's purposes and displays great
diversity, resulting in special problems of administration and de-
velopment. The adverse physical envirooment places a premium on the
role of man in realizing the lirnited and diverse natural potential of the
.Temtory 2.
On the assumption of the Mandate, Respondent was faced with the
task of achieving the ideals of the hlandate, paying due regard to eco-
nomic potentialities and human material within the Territory. Roth
these elements had been affected hy events prior tothe grant of the Man-
date. ln the followingsurvey, Respondent willgive a brief account of the
facts and circumstances which determined, and in many cases dictated,
the policies applied.

B. The Economy of the Temtory

z. One of thebasic determinants of Respondent's policies \vas the
nature and extent of the actual and ~otential economic activitv in the
Tt-rritory as 31 tlic stage \r.Ii~tlie \l;iiidatr\vas ajsuriicd. In thij tegaril
there \v:L~ ish:ir[)<1istiiicti01~t\véciicon~litioriîin the I'oliceZone and
tliosciiitlic are- outside the Police Zone. Tlic econornic lifeof tlic latter
arcas Iind hnrdly béeiiaffcctc<lLI!.tlit:Grman regirnt..except in so far :ii
sonie migrant Ovambo Inl>oiir~.r\si.<-rc ernployr<l 1x1the mines at Tsunieh
and Liidc.rit;.buctit. 'l'lietrihes in those arc.;ii\r.crctl,crefore still encaccd
in their traditional economic life. All production was purely focsLb-
sistence, and the economic system was severely limited and static.

3. The position in the Policc Zone was entirely different.The whole
German colonial effort had been concentrated on this area, and the
foundations of a modern exchange economy had in part beeu laid.,For a
proper appreciation of the possibilities and problems inherent in the
economic situation in the Police Zone, it will be necessary to give a brief
résuméof economic conditions prior to Respondent's assumption of the
Mandate.

' Vidc Book III, Chaps.1, II and III. of thCounter-3lemorial.
VideBook III. Chap. 1,of this Counter-Mernorial. COUNTER-MEHORIAL OF SOUTH AFRICA 405

4. In pre-colonial times and during the German regime, South West
Africa produced very few items for export. Thus during the first half of
the nineteenth century, economic activity for purposes of export was

virtualiy limited to the exploitation of the coastal assets in the form of
whaling. sealing and guano hy English, French, Dutch and American
interests '.
Trade with the intenor also assumed some importance towards the
latter half of the nineteenth century, the principal export products being
ivory and wild ostrich feathers, botli products of the hunt which were
high in value and low in hulk or weight '. Under the German adminis-
tration the picture remained much the same until1907. Coastal products
continued to be the most important export items, while ivory, ostrich
feathers and skins accounted for the main exports coming from the
interior. In 1897, for example, guano exports amounted to f55,ooo out
of total exports to the value of f62.000 Z.

5. This situation was drastically changed by two occurrences. With
the completion of the narrow-gauge railway between the coast and the
north-eastern part of the Territory after 1907, copper mining could be
undertaken on a considerable scale. The export value of copper ore from
the interior averaged nearly ~.oo~ ~0per annum in the years hetween
rgog and 1 13 '
A seconci) an2 even more important event affecting the Territory's
export trade, was the discovery of diamonds along its southern coastal
area in 1908. The value of diamond exports increased from &,Goo in
1908 to £771,800 in 1909; f1,343,500 in 1910; £1,151,700 in 1911;
f 1,520,700in 1912and £2,945,500in 1913 '.
In the five years ending 1913 mineral exports (including diamonds)
accounted in value for no less than 95 per cent. and diamond exports
alone for more than 75 per cent., of the total exports. In Iqr3 dia-o-ds
represented over 80 perCent. of the total exportis.

6. For almost the whole period of the German regime, importsinto the
Territory exceeded exports. Between the years 1897 to 1907 the most
favourahle ratio of exports to imports was in 1903, when the value of
exports amounted to 43'per cent. of the value of imports (~172,oooas
against f397,ooo). The least favourable ratio during this period was in
1906, when exports amounted to only 6 per cent. of imports (£81,oooas
against ~1,620.0oo) '.The value of imports continued to exceed that of
exports until 1911. In 1912 and 1913 the position was reversed for the
first time. Exports in 1912 amounted to ~1,952,ooo and imports to
f1,625,000. The position improved still further in 1913. when the corres-
ponding figures werel3,515.000 and f~,171,ooo 7.AS \va indicated ahove,

' Vedder, H.. South West Africo in Early Tintes (1938). pp. 16.~7.
Trnde and Shipping in Africn. C. 9223, p. 33.
Schnee, H.. JleulscheKolonial Lezikon (igzo),Vol. 1, p. 436Afamorandirm on
the countryknown asGsrmnn Werl Ajrica 1,915). p. 58. .~.
' Schnee, op.cif.. p. 45,.
Ibid., p. 436.
Schnee, op. ci!.Vol. II,p. 34. . .
' Ibid. V.ol. 1, p. 436. . . COUNTER-MEMOR OIFLSOUTH AFRICA
407

the First World War, and there is evidence that the question of finding
external markets was beiug seriously investigated '.

II. '~eference has been made to the constrnction of railways in the
Territory during the German period 2.
By 1915 the Govemment controlled and operated more than 1,310
miles of railways in the Territory, while private lines measured a distance
of 152 miles 3. During the period of military occupation, the South
African authorities connected this system with the South African rail-
ways, while the railway to Swakopmund was extended to the Walvis Bay
harbour '. This had the effect of placing markets in South Africa and
overseas within easier reach of producers in SouthWest Africa.

C.The Population

12. The population of the ~errit'ory reflected the same divergence
between the Police Zone and the areas heyond it as was referred to above
with reference to its economy. The areas beyond the Police Zone, con-
sisting as it did of the territories of the Kaokoveld, Ovamboland, the
Okavango and the Caprivi Zipfel, resembled at least four independent
countries. These areas were al1largely unaffected by contact with Euro-
peans, as well as with one another and with the inhabitants of the Police
Zone, but wide diffcreuces in language and custom existed between
their inhabitants 5.The Eastern Caprivi Zipfel was the only one of these
four areas to be activelv administered bv the German authorities. and

13. In the Police Zone, on the other hand, Respondent found various

Native groups which had been in contact with one another for at least
a century. This contact had not led to the creation of a common Society
-on the contrary, tribal and racial differences, and conflicting claims
to land, had led to continual bloodshed, resulting in the subjugation or
even extermination of the weaker by the stronger.
14. By 1920 the traditional tribal economies of most of the Native
inhabitants of the l'olice Zone had been shattered by wars and by the
measures taken by the German authorities to restrict orlimit the holding
of livestock by Natives '. According to German statistics for 1913,
approximately 80 per cent. of the total non-U'hite adult male population
in the Police Zone including migrant labourers were employed as wage-
eamers by White households, farmers, mines and other business enter-
prises and the Government #.

U.G. 16-1935, para.30, p.5.
Vide Book III, Chap. III, paras. 74 and 82ofthis Counter-Mernorial.
' U.G. 16-1935, para. 25. p. 4.
' Ibid., paras. 34-35. O.
Vide Book III, Chap. II, of this Counter-Mernorial.
Ibid.. para.II,of this Counter-Mernorial.
' Ibid., Chap. III. paras. 84-85, of this Counter-Mernorial.
Die deutschen Schutngebiele in Afrika und der Süds~e, rgrz-1913, Berichtsteil,
p.13040~ SOUTH WEST AFRICA

~j. 'l'hcnbsorf~~ioioif tlic non-\\'liitr yoyul~tioiritlir iiiuric!.rioiiorny
of tlic \\liite grfiup di<lnut lead to tlir: art,:ition of an iiit[.&?iociet!.,
e\cn ~III<JIItlnrS~ti\ Cg-o~i-j.J<IC~gI-oupç-ill rrg.irded it~clf:i~diifcrr.nt
from the others.
To a certain extent different provision was made for the various groups
by the German authorities. Thus the Bergdama were confirmed in the
possession of their reserve at Okombahe, and the Basters enjoyed a
certain measure of autonomy in their Gebietat Rehoboth. Various Wama
tribes were pennitted to graze their stock on specified pieces of land,
while the Herero, on the other hand, had been denied possession of hoth
cattle and land.
16. The most significant difference amongst the population groups
in the Police Zone existed between the %te group, ou the one hand,
and the various non-White erou~s. on the other. The White eTouD
consisted of civil servants, soMierS,traders, bankers, farmers, etc: and
was in control of the economic activity and administration of the Terri-
tory. Many members of this group.wëre Gennans, but even before the
First World War a number of farmers were South Africans,and the war
witnessed further immigration of South Africans, particularly civil
servants.
The various non-White groups, however, possessed neither the ex-
perience nor the training to play any significant role in the administration
of the Territory, or as entrepreneursin its economic life.They were for
the most part illiterate, and their contact with modern skills and in
particular with the money economy, had been of short duration and
limited extent.

17. A furtherfactor relating to the population of the Territory which
was to affect future policy, was that, as a result of the wars preceding the
assumption of the Mandate, the Natives in the Police Zone had become
dispersed over the Territory, and in many cases separated from their
tribes, clans or families, and unable to exercise their traditional economic
pursuits. In consequence the Native population was to a large extent
unsettled and disaffected. In addition a substantial proportion of the-
population had in former years made a living out of brigandage, and,
as has been shown, cattle raiding had previously played a large part in
the lives of many of the inhabitants of the area. Habits and attitudes
which had ansen in this period, still persisted when Respondent assumed
the Mandate, thus presenting a serious problem in securing elementary
safety for the perçons andproperty of the people ofthe Territory.
18. A further result of the wars in the southern part of the Territory
in pre-mandate times, isevident from a comparison of relevant population
statistics. Thus Palgrave had estimated the total non-bvhite population
of the area later known as the Police Zone as 137,850 in 1876 ',and the
German governor Leutwein as between 118,ooo and 144,000 in 1892 2.
According to German statistics,the non-White population of the Police
Zone (excluding migrant labourers) uumbered 75.185 in 19x3 3. On
analysis, Respondent's report tothe League of Nations for 1921 gives an

p. 130.
+ U.G.32-1922, p. 12 COUNTER-MEMOR OIALSOUTH AFRICA 409'

estimate of under 84,000. Although the reliability of these figures may be
questioned, they nevertheless point 10 the fact that the Police Zone had
in pre-Mandate days carried a much larger population than that found
inthe Territory by Respondent.

D. Summary of the Situation in rgzo

19. Ir urii iip. tliejitiintiuiias foiiiirl1))Ri.ipuiidt rit III19-Oicvealed
a uidc ilivirg~ii~eb~r\irrii c<iiitliriuiisuiitidt> 111,I'oliceZone, :id rhosc
inside.

20. Outside the Police Zone, the social, political and economic lives
of the inhabitants were virtually untouched by contact with the White
man.
21. Inside the Police Zone. the salient features were as follows:

(a) A modern economy had been developed by the White population,
the major export products ofwhich wereminerals, and, in particular.
diamonds.
(b) The revenue of the Territory was also largely dependent on the
production of diamonds, and had never been sufficient to cover the
costs of administering the Territory.
(6) The only other possible source of revenue which was. apparent
at that stage, was livestock farming. Progress had been made in this
field, but il had been limited and retarded by the high capital
expenditure required, and the inaccessibility of markets.
(d) The Territory was served by an extensive railway system, which
had been joined to that of South Africa during the war.
(e) The traditional tribal ecouomies of the Native tribes had been
shattered, but wide differences between the various groups werestill
found, and each group retained its own identity.
(1) TheNative inhabitants didnot possessthc skills required for modern
economic or administrative activities.

(g) The Police Zone was considerably underpopulated.

E. The Implications Arising from the Situation in 1920

22. l'hi n.i<ls<Iiif~rviii~jbc,r\iecn rlir pr,p.ilaiion gri>iip<ioiiiid Ii!-
Rrqjonclvnr III5~11rl.\\'~>t.\frit.:, ii~ccs~it~t~dpu11t.i~ ~II\UI\ in< d!iit:r-
ct~ti.~titiI)rriv~.:iiII.,.\..iric,i.igri,iip>.Soov~r-,111lic,yiO! :~clriiiiiisrr.iriun
:iii.I~lc\.+lopiii*.nr\iould Ii;<vcbseii iiiit.il>lc boih fur tli,!IJolii<.Zoiie
.it!<.fur111~.iiortti~~r,iirt..i>:\ti\\itliiith,, l'uli~%ZUII,:Irs~.lflic clirfcrent
le\,rl; ofil<~~~eluiinir Iii~t\i.i.rth<:croiiu;~ .illitfi,r~liiicrenti.iltrcatiiii.iit.
This was so nLt only as between thé Europeans and the indigenous
peoples generally, but also as between the indigenous groups inter se. For
example. a particular policy, which might have been beneficial for the
Herero, could have had disastrous effects if applied to the Bushmen.
Furthermore, the desire of the varions groups to retain their separate
identities, which desire was in many cases rooted in traditionalenmities
or prejudices, mas a factor which no government could afford to ignore.410 SOUTH WEST AFRICA

II. THE ROLE IO BE PLAYED BY THE EUROPEAN POPULATION

23. Uy rcnsoii of tlic st.ig{i<I.:\.elol,iiiciirof the noii-\\'liitc pi>l~iil.trion.
aiirltlit:ii;itiirc uf tlic Tt.rritoi\, arliiiiiiistr~tiuii ,iiiJ J~v~lopni~iit in tlie
\vliolc uf Soutti \\'*.>I,\tri~.'i r~quircd \\'Ilitt. l,.;~lstiil> ;i~icIinit~~tivc.
1nJr.id. tlic rcîli~atiuii of 1111,b,iiic!ICI b!, rlic nutlii,r;oi tliciii~nJ.irc
svstcm \i.:iniplicit 111tlirKrniit .JItlie .\l.inJ;irt: to Kcs~,on<l~:iit.
-
24. The extent to which White involvement was necessary, varied as
between the different sections of the Territ~rv. ~n,th-~~r~ ~ ~ ~ ~de the
police Zone there existed functioning political, economic and social
organizations. The need for White leadership and guidance in those areas
related primarily to the preservation of peace and the promotion of the

general advancement and development of the inhabitants.
- 25. Inside the Police Zone the situation waç entirely different. The
traditional social, political and economic organizations of the Native
groups had ceased to function. The primary needs of the inhabitants
related, therefore, to basic aspects of life. Amongst these were the ne-
cessitv of an orranized administration which could ~rovide certain

eleméntary prote&ons, including those envisaged in the provisions of the
Mandate relating ta abuses such as forced labour, traffic in arrns and
ammunition, and the supply of liquor. Law and order had to be preserved,
and peace secured, among peoples with a long history of violence and
bloodshed. Opportunities ta earn a living had to be maintained and
created, and provision made for housing, medical services, etc.

26. It is apparent that the Native inhabitants were not in a position
in 1920 ta provide even the elementary requirements set out in the
previous paragraph. They were incapable of managing or administering
the mines, railways, harbours, hospitals and civil service (including
police) which had, in the circumstances of 1920, come to play an in-
dispensable role in the Police Zone. Couseqnently, merely tomaintain the
primary elements of the status quo required the presence of a number of

Europeans in the area.
27. However, as has been pointed out, the German authorities never
managed to raise sufficientrevenue ta cover their costs of administration,
and they were in later years largely dependent on mineral, and, in par-
ticular, diamond, taxation. Apart from the fact that these products
constituted wasting assets, their prices Auctuated considerably, as was to

he dramatically demonstrated in later years. In the general atmosphere
prevailing in 1920, the concept of financial aid by international agencies
or others to underdeveloped or non-viable States was an unknown one.
It was consequently implicit in the situation in South West Africa as
Respondent found it, that additional sources of income and revenue had
ta be created, if only for the purpose of balancing the budget and making
provision for possible unfavourable conditions in later years. The creation

of such additional sources was even more essential if any attempt were
ta he made to raise the standard of living and promote the progress of the
inhabitants of the Territory. In this regard, Respondent was required
under the Mandate to extend its responsibilities also to the areas beyond
the PoliceZone,which would involve expenditurefrom which the German
authorities had been exempt.

26. It would have been idle to expect the Native inhabitants of the
Police Zone ta provide the capital, initiative and entrepreneurial skiil required for exploitation of the resources of the Police Zone for the
puruoses set out above. Their ~eneral level of develo~ment was fai-
iooiow to enable them to play the dynamic role in minkg, agriculture,
commerce and industry which was necessary to hroaden the economy,
as well as to stimulate exports, increase rejenue and create sources of
employment. The main emphasis in developing the country consequently
had to faIl on European skill and initiative.
29. In relation s~ecifically to agriculture, the stimulation of White
initiative was the more necessarv since the indieenous tribes were un-

with a ;esultaiit empliasis on nukbers rather than quality. .4ny att:mpt
to exploit the markets of South Africa (which was the only market
available,since it had heen rendered accessible by rail) ' required a
standard of product which could overcome the disadvantages inherent
in the long distances involved, and could compete successfully with
acapital, skill and attitudes entirely foreign to the Natives of the Territory.
And no shortage of land existed to prevent the immigration of progres-
sive farmers-indeed, as has been shown, the Police Zone had previously
carricd a much larger population than that found by Respondeut, and
could by the adoption of better methods of exploitation and preservation
of water supplies, provide a livelihood for a still greater population.

III. THEROLE OF THE NATIVEPOPULATION

30. The same factors which dictated the development of the Police
result that the only role which the Kative population could initiallye
play in the money economy was by providing labour, which, in the first
instance, was entirely unskilled. Theunfamiliarity, or very brief acquaint-
ance, of the unskilled and for the most part illiterate Native workers
with the aims, requirements and demands of modern economic life,
/n turn caIled for the adoption of measures to guide and assist them
in the difficult transition upon which they were engaged from the@
earlier means of subsistence to the exigencies of paid employment; this
factor also called for measures to regulate the supply of labour so as to
obviate the existence of unemployment in some areas while there was
an unsatisfied demand for labour in others.
31. Although the provision of the basic essentials of life, such,as
0 portunities for employment, housing, medical services, protection
0F.Iife and property, etc., for the Native population was the first task
with which Respondent was faced on assumption of the Mandate.
this did not constitute the sum total of Respondent's obligations. In
addition Respondent was required to romote the developmeut of the
peoples of the Temtory. However, t ge very circumstances which in
the first instance determined the position of the Native population
in the White economy as that of unskilled labourers, rendered it inevi-
table that their development, both in the Police Zoneand in the northern
areas, would be a slow process. The complexity of the factors involved
Videpara.11,supra.41z SOUTH WEST AFRICA

in a transition from a traditional economic and socialsystem to a modem
one, and the resultant undesirability and even impossibility of forcing
the pace in this respect, have been frequently emphasized.
32. The main problem which, according to experts, is inherent in
such a transition, is that of an unavoidable clash between the two
objectives of social security and well-being, on the one hand; and
economic progress in the modern sense, ou the other. Professor Frankel,
a well-known economist, says in regard to this dilemma:

". . . in al1African territories the development of modern methods
of economic organization is in greater or lesser degree accornpanied
by increasingly rapid disintegration of the indigenous economic
and social structure. However primitive those indigenous institu-
tions may now appear to Western eyes, they did in fact provide
the individuals composing the indigenous society with that sense
of psychological and economic security without which life loses
its meauing 1."
And other authorities on the subject of socio-economic development in
underdeveloped countries have expressed the view that: "Generally
a slow but steady development is likely to create fewer political, social
and economic tensions 2."In a recent United Nations report it is stated
that :
"the problem of how ta enable the indigenous populations to raise
their own standards of life without exposing them to the harmful
effectsofdisintegration whichaccompanies the break-up ofthe tribal
order and security, is one of the major problems of social and econo-
rnic policy in many dependent Territories '".

The complexity of changing the ways of life of. a society is also
referred to by B. F. Hoselitz. He writes that-
"to adapt anotber society to new ways of living involves the forrni-
dable process of reshaping basic habits that are manifest both in
belief and in behaviors. It calls foran induced shift in pre:established
endS.and a directed re-orientation of value systems 4."
Disintegration of the tradïtional systems of contra1 can give rise
to destructive emotional patterns. In this regard, Hoselitz refers t0
China as well as Africa. He says that cultures in these two countries
are deeply rooted in traditions of the continuity of ancestral generations.
In snch circumstances: "it is not difficult to see how the derogation
of established ways, even by implication, can arouse bath latent and
manifest hostilities" 5.
N. S. C. Jones is more explicit on the effec'tsof attempts at rapid
change. He says that, in the process of adaptation, a social "gap"
occurs when the old ways bave become obsolete and the new ways have
not matured. The gap tends fo be filled by revolutionary politics:
"The social strivings of the individual find no outlet and their
place is taken by emotional yearnings of any kind which, in the

' Frankel,S. H.. The Econotnic Impacton U+ider-deuelopedSocieties (195p..134.
Rauer, P. T. and Yamey. B. S., The Economics of Ulidcr-deucloped Coulltries
('957). P. 71-
' U.N. Doc. ST/TRI/SER. A/r3. p. 131.
' Hoselitï. B. F.. Tha Progress of Under-deueloped Areas,go.
Ibid., p111. COUNTER-MEMOR OFALSOUTH AFRICA 413

hands of a few forceful 'leaders',.take the common forms of class
.. and race and colour hatred l."
33. It lia .dao ht:cii rriiihrkçd th~t thc \ta::,- tu inodern scoiiornic
groivtli wliicli fullu\r.s tlic tiiiit:lti.. ir:irc uf trarlitisiial suciu-ccononiic

ninrnl"iz2ition cxt,-iidauvcr ' a long perio.1,iip ro a ccntur! or, coiicci\.ably.
..'Y'u, .
Whilst it is, of course, impossible to state in general terms how much
time is likely to-be required to achieve this transition in a particular
situnrioii. exj~crt, on III,:suL1cct.irc a:r,:cd tliat tlic >roLc,, 15<Ion; on,:.
prirriciilarl!. bt.causc it also iri\.olveï thi: c~iaiigc of' a iiuinbcr uf 5r~io-
cultural ni111otlicr n~ii-t!~:~~iiuirf ii.,cctor,. Ir haî I>C.I.:Ii~l tliat:

"Investment in human resources is usually a lengthy process;
and to be economicaliy effective it may require far-reaching social
changes which are also likely to take much time 3,"
and that :

"... capital formation in the ordinary sense of the term cannot
shorten this time appreciably: in at least one important sense
capital cannot buy time . . '"
1; 'regard to changes in the agriculture of traditional societies, it
has been said that "the organizational changes required for agricultural

innovations affect çome of the most deeply rooted features of traditionai
socièty" and with reference to the conservatism of traditional pas-
ioralists, like the Herero, a well-known authority ha stated:
,'Conservatism and adaptation are, of course, cultural reactions
which caiinot, or only to a limited extent, he prevented or brought
about tiy outside pressure. Where for instance, a political, social
and economic system is smashed by force as was that of the Herero,

this does not necessarily prevent a conservative cultural attitude
from maintaining itself over a 'long period of time, even in the
face of adverse outward conditions. S~~ ~ ~ ~. a~ ~~~tio,.must
come from within; it is a response which a culture kust achieye
by itself. It can never be effected from outside thouah conditio-s
favourable to its achievement may be created 6."
34. Prof. Frankel has pointed out that it took Europe several ceu-

twies to envolve the enterprising and dynamic human qualities which
make for"modern development and "capital accumulation". He writes:
To repair and maintain; tà think of to-morrow not only of
to-day; to educate and train one's children; to prepare oneself for
new activities; to acquire new skills; to search out new contacts;
to widen the horizon of individual experience; to invent, to im-
prove, to question the 'dead hand of custom', and the heritage

Jones. N. S. C., The Pattern of a Dspendenl Economy (~ggj), p:Izr.
Rostow. W. W., "The Take-Off into Self-Sustained Growth", in The Econorxic
Journal (1956)p.. 27.
' Bauer and Yamey, op. cil.p. 129.
' Ibid., p. 130.
Millikan. M. F. and Blackrner, D. L. AI. (eds.). Ths Emevging Nalions, their
:growth and United States Policy (1961). p. 5%.
Wagner. 6, "Sorne Economic Aspects of Herero Life", in African Sludies, Vol.
'3, No.3-4 ('954). P. "9.4'4 SOUTH WEST AFRlCA

of the put-in al1 tlicsc, :~iid iiot iri ineclianiui caiculatioirs, or
meçhanii;il rcgiinciitatiori. Iay llic c:iiiscz.of capital accumulation '."
He ais0 says that development does not depend on the formulation of
abstract goals or the enforcing of decisions, but on the piecemeai
adaptation of individuals to objectives-
"which emerge but slowly and become clearer only as those indi-
viduals work with the means at their disposal; and asthey them-
selves become aware, in the process of doing, of what an and ought
to be done next

Discussing the same aspect, a United Nations document declares
that, if it is to be a smooth and uot unduly painful process, the transition
from rural peasant to urban industrial worker is not one that cau be
-reatlv accderated. It reauires. at the voint of devarturc, emancipation
from ilic clicratci of çiiito;ii and trsdition; ;ind, :it'tlic pl:ict.i of ei;iplo!.-
niciit. ailjiistrnent to ail unfami1i:ir kindof work aiid labour dis ci pl in^.
and to a new type of social environment 3.
35. For the reasons aforestated, it was inherent in the sitiiation in
South West Africa at the time the Mandate was assumed that for a long
time in the future any system of administration and development
would have to be based on White leadership and initiative, and that the
development of the indigenous races would perforce have to be a slow
process. This in turn emphasized the need for differentiating between
groups according to their various levels of development.

F. A Policy of Differentiation Was in Keeping with the Conceptions of

the Times

36. As has been stressed in the aforegoing, the circumstances inherent
in the situation in South West Africa itself at the time when the Mandate
was granted. were the basic motivating factors as far as policies were
concerned, and rendered inevitable differential treatment as between
various population groups. However, with a view to a proper evaluation
of Kespondent's policies and practices, as set out below, it is relevant
also to note that at the inception of the Mandate, and for years thereafter,
it was generally accepted as sound policy that provision should be made
for differential treatment of population groups which had different
backgrounds and were at different stages of development. In 1917
General Smuts said, refemng to political rights of the varions groups
in South Africa:
". .. although in this regard nothing can be taken as axiomatic
we have gained a great deal of experience in our history, and there
is now shaping in South Africaa policy which is becoming expressed
in our institutions which may have very far-reaching effects in the
future civilization of the African continent ... apractice has groy
up ... of creating parailel institutions-giving the natives their
own separate institutions on parallel lines with institutions for

Frankel. S.H..op. cil.pp.69-70
Ibid.p. 95.
' U.N. Doc. ST/ECA/q, p. 21. COUNTER-MEMORIAL OFSOUTH AFRICA 4'5

whites. It may be that on those parallel lines we may yet be able
to solve a problem which may otherwise be insoluble '."

The expriment, General Smuts pointed out, was not a new one:
"11 kas now been in progress for some two hundred and fifty years as
you know, and perhaps the way we have set about it may be the right
way 2."He explained what that "way" was in the following terms:
"Instead of mixing up black and white in the old haphazard way,
which instead of lifting up the black depaded the white, we are
now trying to lay dowc a $alicy of keeping them apart as much as
possible in Our institutions. In land ownership, settlement and
forms of government we are trying to keep them apart, and in that
way laying down in outline a general policy which it may take a
hundred years to work out, but which in the end may be the solu-
tion of Our Native problem

The result would be, General Smuts said:
,'... you will have in the long run large areas cultivated by blacks
and governed by blacks, where they will look after themselves in al1
their forms of living and development, while in the rest of the
country you wiii have your white communities, which wiUgovern
themselves separately according to the accepted European princi-
ples. Thenatives will,of course, be free to go and to work in the
white areas, but as far as possible the administration of white and
black areas will be separated, and such that each will be satisfied
and developed according to its own proper lines '."

And, addressing the Paris Peace Conference in 19x9 with reference
to South West Africa, he stated:
"A white community in South Africa had been established there
for two or three centuries. It had done its best to give a form of
self-government to three million natives, and its policy had been
tested and found good. It was suited as much to the whites as to
the natives, and this policy should be applied to the natives in
South-West Africa . .. The community to which he belonged had
been in South Africa since 1650. They had established a white
civilization in a savage continent and had become a great cultural
agency al1over South Africa. Their wish was that one of the effects
of the great settlement now to be made should be to strengthen
their position and to consolidate the union of the white races in
South Africa. The Boer pastoralists were always looking for un-
inhabited country in which to settle. He was quite sure that if
German South-West Africa wcre given by the Conference to the
Union its work in this respect would be good =."

A.
General Smuts said in 1947:

Smuts. J. C., TowardoBetler World (~gqq)p,. I.
Ibid., p8.
Ibid.p. 12.
' Ibid.p. 13.
' For. Rel.US. :The Paris Peace Conferenceqrg, \'ol. IIIp. 7234fP SOUTH WEST AFRICA

"The Great Powers which at the Paris Peace Conference had
entrusted the Mandate to the Union, had been yell acquainted
with the Union's native policy. Nothing in that policy had deterred
them from entrusting the Mandate to the Union '."
The same view had been expressed in 1927 by i\1.Freire D'Andrade,
a member of the Permanent Mandates Commission.wlien he stated that:
"[He] . .. agreed with the accredited representative that Article
zz of the Covenant did not sti ulate that only the native should
- be looked after, but spoke oPthe inhabitants of the territory,
which included, therefore, everyone: He had often emphasised this
fact. The experience of the Union of South Africa in desling with
the problems in that continent was of the longest. If its system
of laws and the general principles which it applied had been un-
satisfactory, why had the mandate been assigned to it .. .? The
fact that it had been so assigned would seem to show that the
system, which was well known, had been approved. The Commis-
sion should never forget the very special conditions under which
the mandate had been entrusted to the Government'of South
Africa. He would add from his own erperience that, when.travelling
throughout South Afnca, it was easy to understand why the system
adopted was a good system. In some places in that territory, the
natives were so adiranced as to have the right to vote. Certainly

no other colony that he had visited was in such a high state of
civilization. He would therefore conclude that the system adopted
by South Africa in regard to the natives was one upon which
reliance could be placed 2." '
38. It is clear fromreports of the Peace Conferencethatthe desifability
of applying Respondent's Native policy to the Territory was, in fact,
one ofthe factors which influenced at least some of the delegates to form
the opinion that South West Africa "can be best administered under
the laws of South Africa as an integral portion of its Territory j.Thus
,Dr. G. L. Beer, the alternate United States member of the Commission
on Mandates 4 and at that time chief of the colonial division of the
American delegation at the Conference, said with reference to South
West Africa:
"The development of this territory wiuld be gravely handica ped
if it were administered entirely apart from the adjoining dion
of South Africa, with distinct native, fiscal, and railroad fiolicies
and systems j." (Italics added.)
And it wjii be recaiied that President Wilson himself said: "If South

Africa managed South West Africa as well as she had managed her own
country, then she would be married to South West Afnca 6."
39.Indeed, the necessity for differentiating between various groups
was implicit in the whole mandate system. Thus Article zz (3) of the

' C.A., O.R., FirstSess.,Second Pari, Fourih Co>nm.. Part 1, 19th Sleeting13
ov. 1946.p. lor.
ZP.M.C.,~Min.,XI,p.ior.
' Art. 22 (6) othe Covenant.
' VideBook II, Chap. II, para. 11.of tliis Countcr-Mernorial.
' Beer. G. L., Africon Questionalthe Paris Peace Conterenc(1923).pp.443-444.
' For. Rel. U.S.: The Paris Peace Contcrence,rgr9, Vol. 111, p785. COUKTEK-MEMOR OIFLSOUTH AFRICA 417

Covenant provided that the character of the various mandates should
differ, interalia, "according to the stage of the development of the
people". And the same principle emerges from the specific provisions
of the various inandates. In the case of South West Africa, although
it was Respndent's duty to promote the interests of the "inhabitants
of the temitory" 'it was required to prohibit the supply of intoxicating
liquor only in respect of "the native^"^, and to prevent military
training of only "the natives" 3.
Similar provisions in protection of Natives appeared in the other
"CMMandates, and also in the "B" Mandates, which latter, in addition,
contained safeguarding measures relating to "native land 4.

40. In debates in the Permanent Mandates Commission, the neces-
sity for differentiating between various groups was recognized. The
minutes for 1937 record the following discussion:
"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 iio doubt
to be found in the past history of the territory-that was to say,
in the dispersais and urars of the past. That inequality called for
great elasticity in the native administration and the adoption of
different rules for the various tribes to which they were applied.

Mr. Courtney Clarke said that this was indeed the case. One
might almost Say that there was as great a difference between a
Herero and a Damara as between a Herero and a European; and
the difference between a Damara and a Bushrnan was almost as
great 5."
Further examples may be multiplied. For the most part the necessity
of differentiation was considered by the Commission with reference to
specific aspects of administration, and the relevant discussions will he
dealt with when replying to Applicants detailed allegations. Reference
may however be made to the following random examples of statements
or comments by the Permanent Mandates Commission or members
thereof.

(a) In 1922 the Commission is recorded to have said:
"The Commission expresses the hope that the primitive organi-
sation in tribes may be maintained unaltered wherever it stdl
exists6."
(b) In 1923 M.Yanaghita expressed the view-
"that the mandatory Governments are to be commended O? their
adoption of the principle of maintaining the former organisation

of the tribes, and of recognising the power of the chiefs up to a cer-
tain point 7".

' Art.2 ofthe hkndate.
Ibid.. Art3.
Ibid., Art4.Thesupply ofliquor to Europeans was clearly permissible-vide
P.M.C.,Min., X, pp.86 and 176-177.
' Vide for example, Art. ofthe British Mandatefor the Cameroons.
6Prhid.TTMin., XXXI, p. 138.
'Ibid.418 SOUTH WEST AFRICA

(c) In1924 the Commission was-
"of opinion that the soundness of the views which have prompted
the Administration to adopt a s stem of segregation of natives
in reserves will become increasing y apparent if there is no doubt
that, in the future, the Administration will have at its disposal
sufficientfertile land for the growing needs of the native population
and that the reserves will be enlarged in proportion to the progres-
sive increase in the populati'".
(d) In 1937MileDannevig-
"agreed that great precaution should be exercised as regards inter-
ference with Xative customsZ".
41.It is therefore apparent that the necessity for differentiating
between the different groups in South West Africa w% not only inherent
in the situation as Res ondent found it, but was also recognized by
the authors of the ~aniate and by the Permanent Mandates Commis-
sion. In addition, an approach based on this principle was in aocord
with policies elsewhere in Africa, as will be demonstrated below'.

' Ibid., XXXI, p129.54.
' Vide Chup. VI A, infra. CHAPTER V

RESPONDENT'SPOLICIES: INITIAL PHASES
AND EARLY DEVELOPMENT '

A. Introductory

I. The basic elements or considerations mentioned in Chapter IV
manifest themselves inaspects of policy relative to political and economic
development, and also in regard to certain other matters raised by Appli-
cants in their hlemorials, e.g., rights of residence, freedom of movemerit,

and education '. Respondent deals with these specific matten in other
parts of this Counter-Memorial. Here the intention is to draw attention
only to certain basic aspects of policy, particularly in regard to the
political and economic spheres. In these respects also the exposition is
in broad outline only, more detailed treatment being contained in later
parts of this Counter-hlemorial dealing specifically with the topics
concerned.
2. The situation as it existed in the Territory at the inception of the
Mandate, gave rise to the application by Respondent of certain policies
and practices which were natural, and almost inevitable, in the prevailing
circumstances. It should, however, not be supposed that Respondent
thought that such policies and practices would, or could, remain un-
altered as circumstances changed. It would bave been impossible to
decide on any policy which could meet al1future circumstances, and it
would have been unreasonable to attempt the formulation of a policy
which could meet al1 future developments and eventualities. Changed
circumstances have, indeed, called for adaptations to existing policies,
and will no doubt do so in future.

In the paragraphs below Respondent will deal briefly with certain
facets of policy.

B. Importance of the European Population in Regard to the Economic
Development of the Territory, and the Implications Thereof

3. In the circumstances deçcribed above, and for the reasons stated,
it was obvious that the White groupwith its modem, albeit at that time
limited, economy, would necessarily have to form the basis of develop-
ment in the Territory, and that any development would reqnire the
expansion of that group. This was particularly the case as far as the
farming industry was concerned. The Administration accordingly
encouraged the settlement in the Police Zone of White immigrants,
chiefly from South Africa, to assist in such development.
4. It was mainly nnder the Land Settlement Proclamations which

'1.pp. r16-r61.
Proc. Xo. 14 of 1920 1S.W.A.).in Laws of South Wcst Africn1015-1922. pp.
219-220. superreded by pro;.No. iro (S.A.)in Lorus o/.~outlr FVcs6Atricala?.
pp. 22-82. 420 SOUTH WEST AFRICA

provided for the issue of leases to dottees, witli the option to purchase,
and for the advance of moneys to lessees for the purpose of acquiring
stock. implements, etc., that settlers came to the Territory.
European land settlement \vas actively encouraged for the greater part
of the 192os,when more than 1,000 farmers settled permanently in the
Territory; but, due to economic reasons, it came to a standstill in 1931.
When it was resumed in 1935, the Administration no longer granted
financial assistance to prospective settlers '.
5. A Commission of Inquiry in 1936 referred.inter alia, in the follow-
ing terms to the importance of the European populaAion for the develop-
ment of the TerritGy:
"Without the settlement of European farmers on the land within
the police zone there would have been hardly any developmcnt in
thatportionofSouthWestAfrica. Uoth the natureof the country and
of itsnon-Europeaninhabitantsare such that there can beno question
of any real development in the Territory without the interventionof
the White man. .. '"
Later tlic Coriiiiiijjion iiienrioned 3s 3 pos;ibilit!. \~.tii~'iiniglit, be
suggcst~l" tliat Rej~~oiidi-ritsould have "repntriate~l tlic Gçrmaiis and
adiiiinisrcred tlic \i.liolccoiintri,, like O\,ûnit>oland.as a mitive r~.serve".
The Commission proceeded: -

"Apart from humanitarian considerations however, we are con-
vinced that such a course would not have been possible . . .
In view of the present stage of development of the Native and the
highly specialized nature of the only farming industries possible in
the country, it is clear that any administration which is not merely
negative in its eflect, will, for a long time to corne,have to be based
on the European as a producer of revenue 4."
The Commission indeed described the "demographic position" in
the Territory as being that of a "White minority leavening the mass of
the indigenous population" 5.
At a later stage Lord Hailey also had occasion to consider the European
settlement scheme in the Territory, and in that regard said:
"The eco~iomicpolicy of the Temtory has, apart from other
considerations, been determined by the financial positionencountered
by the Administration in 1920 and the years immediately foilowing.
It had been relieved of the cost of maintaining a military garrison
(even after 1910 the Imperia1 German Exchequer had made an
annual contribution of ~700,000on this account). The personnel of
the civil administration was on a lower scale than that which had
led German colonists themselves to complain of the excess of
bureaucratic govemment. The cost of constructing new railways, or
any loss on the working of existing lines, fell on the Union Govem-
ment. But in the initial years of the Mandatory régimethe public

' The Commission consisted of two judges of the Supreme Court of South Africa
and a well-known econornist. who later becarne Secretarv for Finance in South
Afnca.
U.G. 261936, para. 125, p. 30.
+ Ibid., para. 380-381p;. 74.
' Ibid.. para248. p.54. COUNTER-MEMORIAL OFSOUTH AFRICA 4z1

revenues amounted only to an average of about ~800,ooo. and
roughly 50 per cent. of this sum was accounted for by receipts from
the mining industries. (Theinstability of revenue derived from the
diamond industry was seen when the production of the Luderitz

field was reduced partly owing to the opening of the Lichtenburg
alluvial diamond field and partly to the discovery of the Alexander
Bay field in 1926.) Considerations relating to the political status of
the territory appear to have prevented recourse to loan funds for
capital expenditure on schemes of development, and the sums
available from current revenue were small forthis ourvose. Everv-
thing pointed to the need for a policy whichwoulddê~eio~as rapidiy

as possible the agricultural resources of the territory. This seemed
the more obvious because the railway system, whkh in German
times stoppedshort of Kalkfontein, had now been linked up with that
of the Union, thus opening the South African market to the stock
and dairy products of the colonist. In these circumstances, it is
intelligible that policy should have been directed mainly to the
encouragement of European farming enterprise '."

6. The presence in the Territory of a substantial European population
naturally raised the question of their political rights, just as it raised
specific questions in some other fields, e.g., the provision of socialservices
for that group. and of education fortheir children.
The European population of the Territory was, from the inception of
the Mandate, at a stage of development which justified the grant of a

measure of self-government to tliem. The major issue was the extent of
self-governing powers which could, or should, be granted, having regard,
inter alia, to the fact that South West Africa was a mandated territory.
General Smuts dealt with this matter in a letter to the Chairman of the
Permanent Mandates Commission, dated 16 May 1923. He wrote,
inter alia :

"The majority of the White population in S.W.A. are Union
citizens accustomed to Ourfree system of self-government. For them
it would be impossible to apply any other form of government than
the free democratic régime to which they had been accustomed in
the Union of South Africa. But 1 feel that to estend Ourinstitiitions
tr,III<I.iii.>n ]~~yiil,~riuiiitlic m:in<l;itrd rcrritort. tu tlic ~:uilii:iuii
t>ftllc cunil~.ir.iti\il\~ I:,rqGt rniiiiiiiiiiririrv \i.oul~lIin c\.ir\'\V.I!.

undesirable .. .2"
\ on 1 O~IIII~I~, îiiiiil~riii piiii~.ipI~to tlic Soutli .\fric.:iii
p.ir11:111iit 1 II, vs ub:it 1nr1u.I I III Eiiro[ir.nni
in tIiu'I;iiittii\\iitIttl~ri.ii.,irniciir <,fthc Suiitli \\'vit .-\fiic.iiuii;titiition
A,,t (:\cl So. of 1,125 ,\VIIIC.cIIi~ic]nt,, forL.~in 1020 .''1'11 \st rn:iJc

pru\i,i~ii ft,rtli~t it.~lili~liiii~01t;i I.~~gisl.iri\~.r\;s~nil>l\, ai1 I~xcciitivc
Committee, and an Advisory Council. -
The composition and powers of these organs, and subsequent constitu-
tional developments affecting them, are dealt with elsewhere in this
Counter-Memorial4. For present purposes it is sufficient to note that
powers of legislation relating to Native affairs have at al1 times been

Lord Hailey, A Surwey ofNative ABoirs in Solifh W&t Afrim((1946),pp. 53-54.
P.M.C., Min., III, p. 215.
Act NO. 42 of 1925.in Slatufesof the Union of Soulh Africargz5, pp. 734-800.
* Vide Book V, sec.E, Chap. 1.paras. 17-30, of this Counter-Mernorial.422 SOUTH WEST AFRICA

excluded from the competence of the South West African Legislative
Assembly, such powers being retained by the South AfricanGovernment.
Other constitutional developments, including the provision made by
Act No. 23 of 1949 ' for the represeutation of the European population
of the Territory in the South Afncan Parliament, are also dealt with
elsewhere 2.

C.Considerations Affecting the Native Groups

7. In the case of the indigenous population groups considerations were
totally different from those applicable to the European population. The
question in the case of the Natives was primarily one of how they could
hest he governed, and to what extent and in which parts of the country
use could be made of their traditional systems.
The vast differences between the White group and the indigenous
groups-differences relating to civilization and culture, levelsof develop
ment,standards of living and ways of life, social and political institutions
and habits of thought-militated against any idea of an integrated
Society, socially or politically. Such integration was not desired by any
of the groups concerned, and was in fact not a matter which called for,
or was given. any active consideration.
The traditional systems of government of the indigenous peoples of
the Territory are briefly descrihed in Book III, Chapter II, above.
Those systerns not only differed inter se, but were aii vastly different
from thatto which the European population was accustomed.
In regard to the administration of the affain ofthe indigenous groups.
it was decided from the outset to make use of indigenous institutions
where such systems stiil existed, and to try, where such systems had
disinteprated as a result of events of the oast. to re-establish so much
. .
tlicrt~ufris ivai practicahle in ilic <:irciimst;tnces. 5iich :in approach,
12espoiitlcntbclirvcd. tvoiildst!r\.ctl~eht:int<:r~,tof tlie Sati\.egrou]~~:
it invol\.ed the rerognitioii uf the jey~r~fc id~ntities of the ~TOII~)a ~n,
op~)~rtunii!~furprest.r\.iiiSnnd lo.lerinq thcir tr.î.iition.li commiiiiit\. lire.
nriiltlic poiîil~iliti~ftheir .ir-Knsiiv~.dc\.clo~nienr on a fuiiiiilation of
their own cultures.
Final control over Native affairs was vested in the Governor-Geueral
of South Africa, who was empowered by law 3to delegate his aiithor1t.y
"to such officerin the said Territory as he may designate to act uuderhis
instructions". By his Proclamation No. I of 1921 the Governor-General
delegated his powers under the said Act, including the power to legislate
hy proclamation, to the Administrator of the Territory, as the agent
of the South African Government '. By Administrator's Proclamation
NO. I of 197.1 a Council was appointed to advise the Administrator,
inter alia, in regard to "matters of general policy in relation to the
legislation of the Territory apart from routine matters of adminis-
tration"; and one of the members of the Council was required to be a
~)CrS51 sl>wi3lly<{ii.tlifircrlo :itli.is;il1mstrerj ~ori~.c*rnht~ir Sltiyc
r;ict. of th? 'l'crrito5..\Vtiein nt~ :\d\.iiory Couiicil\vas ritnbli;liei111
--
Statutes of the Union of South Africa 1949, pp.178.196.
Vide Baok V,sec. E, Chap.1. paras.17-30.ofthisCounter-Memonal.
ActNo. 49 of 1919inTha Laas of South West Africn 1915-1922,pp. 10-12.
*P*oc. NO. 1of1921 (S.A. )h,e Lnrusof South West Africn 19r5-rgza. pp.44-46.
i'5Proc. No.r of 1921 (S.W.A. T).a Lorrisf South West Africn 1915-1922, pp.
493-495. COUNTER-MEMORIAL OF SOUTH AFRICA
423

terms of Act No. 42 of 1925 ,eferred to above, it was provided tbat one
of the members of the Councilwas to be an officiaiwho was to be selected
mainly for his knowledge of the reasonable wants and wishes of the
Native population of the Territory '.
Subsequent legislation, Le., from 1949 onwards, the effect of which
has been to establish more direct control by the South African Govern-
ment over Native administration in the Territory, is dealt with elsewhere
in this Counter-hlemorial.
8. In the territories outside the Police Zone, where traditional institu-
tions had remained intact and were in operation at the time when the
Mandate came into being, a policy of employing such institutions for
purposes of the government of the peoples concerned admitted of fairly
easy application, and a system of so-called "indirect rule" could be
established successfully.
In most cases the role of European officials,who acted as links between
the Administration and the groups concerned, was largely confined to
one of assistance and guidance. The policy was, as far as practicable,
not to force upon any of the groups measures which they were not
prepared to accept, but rather to make them appreciate the need to
change snch practices and customs as were in conflict with civilized
notions or were no longer conducive to peaceful administration. This
general approach urasreferred to in the following terms in Respondent's
report to the Councilof the League for 1924:
"The policy since our establishment has been to aüow the natives
to rule themselves according to ordinary native law and no attempt
has been made to change this or in any way to interfere with native
custom, in accordance with wbich the whole population still live.
Through the influenceof Government officiais,however, the different
tribal heads have more or less come to look to the Native Affairs
Staff for advice and guidance in determining their affairs, especiaily
as far as the more complicated and inter-tribal or sectional questions
are concerned 2."

The following was stated in the same regard in Respondent's report
for 1937:
"The objective of the native affairs officersof the Administration
in South West Africa has been as far as possible not to interfere with
native or~anization or customsas far as thev werenot in conflictwith
good govërnment and to allow the native $eoples to develop gradu-
ally; adopting European customs and methods in place of such of
their own cuitoms and habits as thev are broueht-to realise from
time to tinie are unsuitable to the chaiged condityonsof life3."
g.,In the Police Zone conditions were vastly different from those
obtaining in the northern territories as far as community life and tribal
institutions were concerned. Such institutions had, to a large extent,
been destroyed. Illembersoftribes werescattered al1over the country, and
the first and major task facing the Administration was, to qnote Lord
Hailey, "a prohlem ofsocial reconstruction" '.

' Act.No. 42 of1925.in SfafutcofThc Union ofSouth Africa1915. pp.734-800.
U.G. 33-1925, para. roi,p.28.
U.G. 25-,938. para.303, p. 50.
' P.M.C.. Min..XXXI, p. 135.424 SOUTH \%'EST AFRICA

Part of the process of reconstruction was the establishment of reserves
where the Native occupants would enjoy security of tenure, and where
they would have an opportunity of re-estahlishing, as far as possible,
their traditional social life and customs.
Respondent's annual report for 1925stated the followingin this régard:
"The natives, however, will in future have centres where they can
develop on their own lines, from which they can go freely in search
of work in European centres, and to which they can return to their
families. At the same time the foundation has heen laid for the
building of self-contained native communities developing on their
own lines, under the supervision of selected Native Affair of-
ficials. ..'"
IO. The absence of traditional leaders. and the fact that traditional
systems of trihal government and al1 the normal restraints inherent
therein had been destroyed, made it necessary to provide for a speeial
form of control of the rëserves.
After the establishment of the first reserves, regulations for their
control were issued under Government Notice No. 66 of 1924 2.In terms
of these regulations the general control of a reserve was vested in the
Magistrate of the district concerned, whilst the duties of exercising
actual day-to-day control and supervision were entrusted to a European
Superintendent. Provision was made for Native headmen to assist the
Superintendentin the exercise of his functions.
As a means of developing the reserves and of giving Native residents of
such areas an opportunity of participating in the management of their
olvn afiairs, Reserve Boards of Native leaders, under the chairmanship
of the Magistrate or Superintendent, were established '.These Boards
are consulted in regard to the administration of tribal trust funds, the
moneys of which are expended for the sole henefit of the Xative com-
munity concerned, and alsoassist Superintendents in the general adminis-
tration of the reserves '.

D. Early Stages of Economic Advancement of the Natives

II. Waee-eamine em~lovment o~~ortunities coustituted an immediate
henefit t; the ~afive 'population'of the Police Zone, considering the
situation in which thev found themselves at the time when the Mandate
came into being. Save in a fewcases they had, during the German regimc
lost the lands formerly occupied by them, and their right of owning live-
stock had been severely restricted. The rate at which the Native reserves
could be developed, ruled out the possibility of any significant full-time
support from that sphere in the early stages--significant, that is, as com-
pared with the much more attractive opportunities of regular wage-
employment.
Apart from the benefit of wages, the absorption of the Natives in a
modern economy as regular workers had the advantage that it would

U.G. 26-1026 nn. roo-rro. COUNTER-MEMORI AFLSOUTH AFRICA 425

gradually transform their traditional approach to work and inculcate in
them new economic interests and attitudes.
Since Native labourers were largely illiterate and unaccustomed to
regular wage employment, the .Administration, in an effort to secure
satisfactorv labour relations. adooted what mi~ht "e called a ~olic+.of:
"c~oiioi~iicy;lt~t~l.~l~hi~ili rCspcct ui tlieir \V.~KCS jilid c~liil~tii,oi~
~iiil~Io!~~iiçiit.li~:ipoiirlcnt :1cli111 III~UI <i:itaiii rcgulitury
inc..c~urcs,sllci;iitiic .\l:,jl~r ili<r\<lllf~ ~'lùcillll~lfl'.111111~.I.,L~C

of migrant labourers from beyond the Police Zone, wlio were ernployed
largely by mining enterprises, standardized terms and conditions of
em$liyment were'iaid d&n.

11. AGRICULTUR EN THE NATIVERESERVES

12. The stage of development of the Native groups. their traditional
subsistence tvpe of farmint? and the fact that the comrnercialization of

such farming requires large capital investment and involves a time-
consuming process of change in production techniques, inevitably meant
that development towards commercialized production in their case would
be a slow process 2.
In the Police Zone circumstances were particularly dificult, and
development could only be contemplated in stages. The Natives being
largely landless at the inceptioii of the Mandate, the first step was to
settlethem on land, to create conditions for settled farming, to open up
supplies of water and to build up herds. Thereafter could follow a process
of improving the quality of stock by selective breedingor the introduction

of new strains, the improveinent of farming methods generally, and,
finally, production of animals and produce for marketing and sale on a
competitive basis.
13. To finance development in the resexes, and to inculcate in the
Xative at the same time a spirit of self-reliance, trust funds were
established for tlie various reserves. These funds derive their revenue
directly from the inhabitants of reserves, largely by way of grazing fees

and various minor taxes. Al1 expenditure from such funds is for the
direct benrfit ofthe reserves concemed and theirinhabitants.
Tlie followiiig official statement deals generally with tlie purposes for
which trust funds were utilized in the early years:
"These funds, built up as they are almost cntircly from the fees
Native residents of the reserves pay in respect of the grazing of their

livestock upon the communal reserve lands have, iii the case of most
reserves, proved more than adequate during recent ycars to meet
immediate requirements with regard to the conservation of water,
the opening up of new supplies, the constmction of fencing, the
purchaseof studor high-grade bulls, the construction of dairies, the
acquisition of cream-cans and, generally for al1services necessary to
enable the utmost use to be made of the available grazing andof the
produce of the livestock depastured thereon . .. The time will no
doubt arrive-sooner in the case of somereserves than with others=
when, basic development having been completed, trust funds ml1

' Proc.NO. 34 af 1920 (S.W.A.), The Laws ofSouth West Africa 1915-rgaa. pp.
336-366.
VideChap. IV, paras. 32-34.supra.426 SOUTH FVEST AFRICA

be used for other bettement services on behalf of the natives in
reserves '."
Commercialized production in the Police Zone began in the latter half
of the 1930%largely in the form of production of dairy products for sale.
Commercialization by way of livestock sales reached significant pro-
portions only afterthe Second U'orld War.
14.In the iiorthern territories, where the various Native groups
inhabited land wliich they had occupied for a long time, conditions were
naturally more settled than in the Police Zone: but there, too, since aU
economk activity had always been merely for subsistence purposes,
development could only come in stages as certain basic requirements
could be met.
Water supplies had to be augmented, particularly in areas away from
the rivers. so as to ensure, inter alia, a better distribution of population.
Faming methods and the quality of livestock had to be improved, the
latter largely by selective breeding. Commercialization by way of sale of
livestock has at al1times been hampered by animal diseases, the combat-
ing of which is a never-ending task.
In these territories, too, the system of tribal funds was introduced, for
the same purposes as in tlie Police Zone.

E. Policy regarding Land and Rights of Residence

15. Reference has been made ahove to the nolicv of settina aside re-
>vr\:csfor the sole use nlld occuli:atioof ~ativi grohps 2.l'or Cheprotec-
tioliof tliï groupj concerned. tlic :ilienation of ttie land compnslng such
reserves i\,:isi)rul~il)itcd"s:ive undcr the nutliorlt\~of Parli:iment" '.And
no ~uro~ean;. escept missionaries and governmeit officiaiswere allowed
entryinto Xative reserves. save on permission specially .a-ted.
16. At the inception of the Mandate, some communities in the Police
Zone occu~iedcertain restricted areas as a result of treaties or ameements
with the German Administration. Respondent recognized these areas
as reserves for tlie communities concerned and ~roclaimed additional
reserves for other communities and groups-ma'inly in pursuance of
recommendations by Commissions of Enquiry *. In due course the
northern areas which had not been under German control, Le., the
Kaokoveld. Ovamboland and the Okavango, as well as the Eastern
Caprivi, were also proclaimed as reserves for the sole use and benefit of
their traditional inhabitants.
17. Private ownership of land aas a concept foreign to the indigenous
groups of the Territory, and al1 land, whether considered the property
of the Chief or of the tribe, was traditionaliy used on a communal basis.
Some of these traditional systems recognized the right of persons to
purchase, or to be allotted, the use of individual portions of land for
agricultural purposes 5; but individual ownershipof suchallotments waç
unknown, and rights of grazing were always held in common.
In the circumstances Respondent made the land in the reserves avail-

' U.G. 30-1940, para. 799. p. 138.
Act No. 49 of.~grgr(S.A.), in Ths LawsO/South West Africo1915-1922. p. la.
' Vide BookVI, Chap. III, paras. 55 t62, infra.
Vide Book III. Chap. II, paras. 19, 30an48. COUNTER-MEMORIAL OF SOUTH AFRICA 427

able for the joint use of tribes or groups of people, leaving it to tribal
leaders or, in certain cases, to Superintendents of reserves, to ailot
portions thereof to individuals.

18.As has heen pointed out. residence in reserves was limited to
Sati\i.:. ridus dupsrai:t~i;~l~~nsidcri~tioiiifurtli~rin~r~niauc itiiri:cislry
tu iirip,diciertaiii rcgulltory iiic.isiiriiircgird to rcsiili.ri~cor S.itivcs in
such reserves. The need to maintain orde? and control. to ~rotect the
rights of those for whom a particular reserve had been sit aside, to
prevent overcrowding and to ensure the proper conservation of land and
grazing, obviously required certain protective measures and restraints.
An unfettered right on the part of individuals to reside in whatsoever
reserve they pleased, or to move from one reserve to another as often as
they wished, would not only have made efficient administration and
control an impossible task, but would have been to the ultimate detriment
of the people themselves.

19.It was believed that the reservation of land for the sole use and
occupation of the Native groups had decided advantages for al1 con-
cerned. It confirmed al1the tribes in the northern territories in the pos-
session of their traditional lands, and it provided a largely landless
population in the Police Zone with opportunities for reconstmcting their
traditional social and economic life and leading a more settled existence
than that to which they had been reduced before the inception of the
Mandate.
The policy of creating separate areas for the Native people of the
Territory was not only a necessary or, indeed, inevitable consequence of
the factual situation as Respondent found it at the inception of the Man-
date, but was also in accordance with Respondent's experience gained
over many years in goveming a heterogeneous Society in South Africa,
where Respondent was applying a policy which had as buis the belief
that each of the population groupswas, as far as was practicable, entitled
to develop in its own sphere, where it conld best advance on a foundation
and within the framework of its own social and political institutions.

20. In urban areas in the Police Zone nrovi~2~n was ~ ~ ~for the
c~rbli~liiiiciit c-31cp:ir;itc rcsidi.ii~i.îlnrc:ij fur S.ttivca i\.lieri:th~y coiild
acqiiire "Ili<.1,-ascof sir<.,for th,. cre:tion of tioiiici oIiiir>fi,rrliçirotvii
ociupation" ';and local authorities were empowered to provide housing
for individual Natives or Native families in such areas %. Persons other
than Natives were prohibited from acquiring any rights to any site or
premises in the areas concerned 3.
The provision of separate reçidential areas for Europeans and Natives
was in accord with the existing pattern of socialand residentialseparation
hetween those population groiips, and was part of the general policy of
creating separate spheres of settlement and ownership of land between
the European and Native groups.
The control of such Native residential areis, and the participation of
Natives in the administration thereof, are dealt with elsewhere in this
Counter-Memorial 4.

Proc. No. 34 of ~gzq (S.W.A.). in The Laws ofSouth West Atrica 1924,pp. 178-
190.
Ibid.. sec.I (1)(b) and (c), p. 178.
Ibid., sec. 5p. 180.
' VideBook V. sec. E. Chap. III. of this Counter-Mernorial.4z8 SOUTH WEST AFRICA

F. Development in Early Years up to the Second World War

21. In the unsettled conditions which prevailed initially, it was essential
first of al1 to establish certain elementar~ protections and to lav the
foundations of social and econoinic de~el~~nient.
As has been shown, measures were taken atan early stage to provide
the largely landlcss Native population of the Police Zone with homes in
areas specially reserved for tliem, and to supply those who sought em-
ployment in urban areas witb proper accommodation.
Various steps were taken to bring about more settled conditions of
life for the Natives, to discourage their movement to areas where there
was no work or accommodation for them and where overcrowding could
only be to the detriment of health and morals, andto inculcate in tliem
an appreciation of the need for, and value of, regular work, whilst en-
deavouring, at the same time, to ensure proper labour relations by
~rotectin~ them aeainst exoloitation. It is aeainst this backmou-d that
the ~erri'tory's vkancy lâws, pass laws, influx control mesures and
master and servant laws, which are dealt with elsewhere in this Counter-
hfemorial, must be considered.
22. The field of Xative education ' affords a good esample of how
various circumstances contributed to retard development in the early
stage (till the Second World \Var), but how steady progress was never-
theless made. Al1education was initially, as in many parts of .4frica in
the hands of various missioii societies. There were few Native teachers
\i,irl:,II!ti.~iiiiiii::in31. tlit: I~i.gin~iiii:.nu iiriiC,riii<:oursesof itu.ly.
I<iforr,:LIper~iiailiiigSi,ti\.e ,iud,.ii10 t~ tr3iiit:cl i~~cli~rsgradu:dly
boru fruit, sitiuul ci~rolni~ritsgrailii:ill\ iiicre~..id, and thc ;rand.inls of
education were gradually raised.
23. Development in the Territory was necessarily depeiideiit on the
rate of its economic advancement, and on the availability of capital for
expenditure. Initially. as diiring the German regime. mining constituted
the major single source of public revenue, but, due largely to poor prices
obtained for diamonds,this position changed in 192j-1926, ~hen Customs
and Excise became the largest sourceofsuch revenue. The latter increased
iI1)7~-1:).~0,diiteoincrcx.~~~inp(,risof coii.<iinirr,iiitermcilinrv and capitiil
gonds tu nicet tlie necds of tlie cro\r.iii,: litiro~6;in uor~tilaiion.
- . .
24. Thefarmingindustry,deve laroepedas a result of the Adminis-
tration's Eiiropean settlement scheme, proved to be a considerable
yide economic depression of the 1930s. Practically the whole miningworld-
industry then came to a standstill, and in 1934and 1935itscontributjon
!O the total income of the Territory was virtually nil. The f;lrrn!ng
industry also suffered severely as a result of drought conditioris, which
lasted till the end of 1933. an outbreak of foot-and-mouth disease, and
poor prices on the South African livestock markets. Nevertheless, the
level of income originating in farming recovered to its higli level of
R~.IOO,OOO (~1,550,ooo)in 1929 by 1934-193j. whereas the high incoine
contribution by mining in 1929, viz., R5.300.000 (~2,Gjo.ooo)\vas never

' Vidc Book VIX. Chap. V.ofthis Counter-Mernorial
Ibid.,para. 37. COUNTER-MEMOR IAPSOUTH AFRICA 429

equalled during the 1930s. the highest figure reached being R3,-/oo,ooo
(~1,850,000)in 1938.
Steady advancement in agriculture was also made in Xative reserves
during the period up to the Second World War. Substantial increases
in the number of livestock, and the improvement of their quality, were

due lareelv to the A.~lication of Reserve Funds. to which reference was
made aibo;e l.

Vide para. 13, supra. CHAPTER VI

RESPONDENT'SPOLICIES: COMPARISONWITH

OTHER AFRICAN TERRITORIES

A. Upto the Second World War

I. The practicei aiid policies cvolvcd by Kespoiident. aiid descrihed
in brosd out lin^ in Chapter \' above. can in their application to the
indigziious populatiun gruuys of Soutli West Africa be char;izterizcd as
tutelage or guardianship appropriate to relatively early stages of the
development of the wards.
The European or White population group occupied an intermediate
position in the above respect. In part this group was one of the wards,
the Mandate having committed "the inhabitants of the territory",
without exception, to Respondent's charge '. In part, however, due to a
greater ability "to stand by them~elves"~, the memhers of this group
could assist the Mandatory, subject to its control, in its guardiansliip
and civilizing missionin respect of the indigenous peoples.
In keeping with the basic situation.the White ~ouulation mouv could
be :illo\ieil i'mex~iir~of sclf-gv\,crniiierirand of pirt:cipation ïn p;ozcsses
of central guvcrnmcnt-stib]cct, ho\\.e\.er, to arr:iiig~mt.nt; wliicli Iéft
the effective adniiiii~tr.itiun ;ind coiitrol of Sarive affairi and interïsts
witli Rejpondznt. Ccntrnlgovt:riinicnt in thii latter respect \\.;tsesseritinii
the hIan(1xtory.s ta&. ai in the cxse of ;il1IJ and C \l:in<l;itt'. liidet-~
the inability of tlic pcoj~lzsconcerned tu ~>crforiitiliis fiiiiction themszlves
ivns the re:rson for thcir coining uiider R and C \landarcs-III coiitrxst
!\.itlA \f;in<lates,\vhich liiiiit<-the .\laiidntoriei' funcrions tu 'adrninis-
trative advice and assistance" '. Throurrh Drocesses of indirect nile,
where appropriate and practicable. indigenbus groups were allowed
a considerable measure of self-uovernment of a traditional and localized
nature: but their non-participafion in the processesofcentral government
waç, inter alia, completely in keeping with the early stages of their
development under tutelage.

2. In the respect above-stated, the practices and policies applied by
Respondent in Soutli West Africa were fundamentally-as distinct from
their detailed aspects-in close accord with systems and tendencies
operative throughout Africa south of the Sahara 5. This remained the
situation until about the time of the Second World War. and to some
esterit cvcn for a iiiirn1)ïrof !.cars there:ifrer.
Quite ;11~:irftroni otlivr je; of \Ixitdat~-\.iz , 1'xiganyiliii (Ilritish).
I3u:indn-Uruiidi (I<cl~iaii),the Frciich Camerooiis.thc British Caiiieroons.

' Art. 2 of the Mandate for South West Africa.
Art. 22 (1)of the Covenant.
Art. 22 (5) and (6)of the Covenant.
' Art. 2? (4) ofthe Covenant.
' 1.e..eïcluding from consideration, aswas donein Lord Hailey's An Africnn
Sunicy (1938) and (1957). the northernmost territories, with which comparisons
would becornplicated by reaeon of hIediterranean littoral influences. COUNTER-MEMORIAL OF SOUTH AFRlCA 43I

French Toaoland and British Toaoland-where the same basic situation
in regard fo guardianship appiied by express provision, colonial powers
regarded and described their functions vis-B-uisindigenous population
groups as resting upon moral concepts of the same ai a closely similar
nature. Thus "trusteeship" was a term favoured in this regard in British
colonial policy ', and "patemalism" has been used to describe the
general nature of relevant French policy as well as the officiallyrecog-
nized principle on which Uelgium's traditional policy was based 3.
Portuguese traditionalmethcds have alsobeendescribed asapproximating
ta what Lord Lugard called "dual mandate" 4. In the Union of South
Africa and in Southern Rhodesia political leaders used the terms
"guardianship" and "tntsteeship", with or without the adjective
"Christian", to describe the relationship between the White population
and the Native groups

3. In Annex A ta this Book a brief, factual account is given of
relevant constitutional and attendant arrangements in each of the African
territories south of the Sahara (other than South West Africa and the
Union of South Africa) UD to the outbreak of the Second World War.
From the facts thereinsetout certain significant features will be readily
apparent, as dealt with in the next succeeding paragraphs.

4. As can largely be observed from Annex A itself, it was generally,
almostuniversallv, accepted as natural for the indi.,nous African ~. .les
to Raise :ibiolutcfif or vi;tunlly nu l>.irticipntioiior even reprejciit:rtioii i?
the legisl;~ti\reand cscciitir,: pro~.<.s,r^uîf tlic ceiitral go\.crniiicnt oftlieir
reswctive territories--as distinct frum traditionai or rrihil institutions of
y a IÔcalizednature. Leaving out of account the independent territories
of Abyssinia and Liberia-where the systems of central government
could perhaps best be described as an aiuthoritarian monarEhy and an
oligarchy respectively 6-the functions of central govemment were
performed, in most cases exclusively and in the othersalmost esclusively,
by representatives of European colonial or mandatory Poivers and101of
European or White African populations in the respective territories.
In accordance with the concepts of tutelage, guardianship,paternalism
and trusteeship mentioned above, there was frank acceptance of the
proposition that ". . . the White mnn must rtile", an expression used by
Lord Milner in 1903,when he was High Commissioner for SouthAfrica '.

5. Franchise amongst African Native populations was highly ex-
ceptional.
(a) In the large majority of the Territories concerned such franchise

' Meaning "in effoctaspecial regime for the maçs of Africans who were suhjects.
nOt citizens". Hodgkin, T., Nalio+tolism in ColoniaAlfrica (1956)35..
Ibid.. pp51-52,
' Caetano, Al.. Colonizi*tg Trnditions, Principtes and hrefhods ofthe Porluguere
~1-"~,... .".
QS to the Union of South Africa, vide, c.g, PirowO.,James Barry Munnik
Hertzog. p. 198: Krüger. D. W.. South African Parties a~dPalicies 191001960).
p. 87 and Chap. VIT. para13.infra; and asto Rhodeçia, Walker. E.. A Hislory of
Soulharn Africn (1957). 666.
Vide Annex A, paras.61 and 62, infra.
'Milner Papers, Vol. II. p467.432 SOUTH WEST AFKICA

did no1exist a1all. In this category fell al1theMandated Territories '
and also the following colonial territories:

British: Kenya 2, Uganda 3, Nyasaland ', British Somaliland ',
Gambia 6, Swaziland 7, Basutoland and i3echuanaland9.
Italian: Eritrea and Somaliland ~ ~ ~ ~ ~
Belgian: The Belgian congo ll.
Fre~ich: The provinces Xiger and hfauritania of the Federation of
French West Africa '2.
Spanish: Spanish Guinea 13.

(b) In the minority of cases in which there was provision at aii for a
franchise in respect of which Natives could qualify, the basis thereof
was such that, for a variety of reaons, the potential influence of
such Native franchise was extremely limited, and in some instances
virtually nil. The following are the territories failing in this category:
British: The two Rhodesias and the three West African territones.

Gold Coast, Xigeria and Sierra Leone.
French: The provinces Dahomey, Ivory Coast. French Sudan,
French Guinea and Seneeal of the West African Feder.
atioli. I:~CIIC~1:quatori;il .hic= and Xladagajwr.
Porlr<-ucsc: I'ortu-weseCuinca, rt~~pol-:ml )lozambique.
The actual arrangements in these temtories are set out in Annex A
and need not be repeated here.

As will he iioted, the reasons for limited or iiegligiblepolitical influence
of the Native franchise included:
(i) qualifications which resulted in very fewNatives in fact coming on
to the voters' roll l';
(ii) limitation to election of a relatively small minority of the members
of the body concerned 15;
(iii) the body concerned having a consultative function only l6 or its

powers being otherwise liniited 17,or
' As to Tanganyika, vide Annex A. para. 22,ixlro: Ruanda-Urundi, para. 55;
British Carneroons. para. 35; British Togoland. para. 36;French Carneroons, para.
47;French Togaland. para. 44.
Vide Annex A, para. 16. infra.
' Zbid., pcara19.
' Ibid., para. 8.
' Zbid., para. 25.
Ibid., para. 38.
' Ibid.. para.10.
Ibid., para. I 1.
Ibid., para. 14.
'OIbid., para. 53.
ILIbid., para. 54.
IZZbid.. pars. 41.
''Ibid., para. 60.
" Vide, cg.. Southern Rhodesia (Annex A, paras. 2 and 4);Narthern Rhodesia
(para. 6);French West Africa other than Senegal (para. 43);French Equatorial
Afnca (para. 45);Porhiguese Territories (Annex A. paras. 57 and 58.read with
Annex B. para. 76).
" Vide. e.g.. Gold Coast (Annex A, para. 27);Nigeria (para. 31);Sierra Leone
(para. 34);Senegal (para. 42.re deputy to French Chamber).
l6 Vide, eg.. French West Africa other than Senegal (Annex A, para. 40);French
Equatorial Africa (para. 46); the Portuguese Territories (para. 58).
" Vidc Senegal (Annex A. para. 42.re General Council and Colonial Council). COUNTER-MEMORIAL OF SOUTH AFRlCA ,433

(iv) a combination of these '.
6. Actualparticipationby Africans inthe central legislative and execu-
tive organs of the territories concerned, was also highly exceptional. This
resulted partly from the franchise situation indicated above, and partly
from policies adopted by the Powers in regard to nominations. Here

again the facts are given in Annex A, and the following serves only to
emphasize certain features:
(a) There was no such fiarticipation by Natives in any of the mandated
territories. Apart from South West Africa, Tanganyika was the only
mandated territory in Africa with Legislative and Executive
Councilsofits own. These consisted entirelv ofofficialandnominated
members. Although a practice arose of appointing z to 3 Indian
members to a Lerislature totalLing - 23- al1the other members were
European 2.
In theother mandated territories central government was more or
less by decree of the Mandatory or its representative. Although the
Legislative Councils of Nigeria and the Gold Coast could legislate
for the southern parts of the British Cameroons and British Togo-
land respectively, the mandated territories had no representation in
these Leeislatures 3.Each of the two French mandated territories.
the Camtroons and Togo, was administered under a ~ommissioner:

Native opinion was consulted through advisory bodies, constituted
bv nomination and election bv electiral colleees - '.
, , In all the British territories. there was not a sinale one in which a
Snti\.< ~CGLIIIL a nicniher ul lii Es~cutive (:ouiici1duriii;: ~lii pçriud
iiiidcr rci.ie\i.And tlir uiily Uritisli tcrriti,ri~:iin which Xati!.es
hec~iiiciii~mibcrsof :1l+~~iil;irivtiouii~il. \v<>rGt:uld Co;ist, Sigt:riü
aiid Sivrr:~I.eoiic.Iii tach ol rlic,?ithrc~ c;isei tliere wcrc ~tuiiiin;<tt.d
;isiicll ai c.ltctt:dS:~ti\~rmciiil>~:u.~r:th~r\ntliiiominat<.d Eurol~c;iii
members; but in each case the pÏinciple of an officia1majority
(European) was maintained during the whole period =.
Of the other British colonial territories, Southern Rhodesia6,
Xorthern Rhodesia 7, Nyasaland and Gambia had all-White ,
Legislative Councils, while the Legislative Councilsof Kenya 'Oand
Uganda l1were preponderantly White, with some Indian and Arab
representation (no Native). British Somaliland 12, Basutoland 13,
Swaziland l4and Bechuanaland 15,had no Legislative or Executive
Councils, but in the case of the last-mentioned two, there was

E.g., the Frenchterritories other than Senegal
Vide AnnexA, para. 24,infra.
Ibid., paras. 35and36.
* Ibid., paras. 44 and47.
Vbid., paras. 27,31 and34.
Ibid., para. 4.
' Ibid., para.6.
Ibid., para.8.
Ibid.. para.38.
'O Ibid.,para. 17.
Ibid.. para.19.
l2 Ibid., para.25.
'' Ibid., para. ro.
nid.. para. 14.434 SOUTH WEST AFRICA

machin?!. for s~cpnrntccuiisultatioii of tlir \\'hitu p.>j>ulationaiid

the S.itivcs in regard to rlicir rc.spwtii'c ?ifairs anJ intcrcstj. niid
in tlit ch<,uf I3;isutol;iiiJiii;ictiiiiervfor ~oiisultntioii of tr.iditinn3iIlv
organized Native opinion. ,
Apart from reliance placed upon officialsto represent and watch
over Native interests-e.g., the Goveroor of Southern Rhodesia '
and the Governor, Chief Secretary for Native Affairs in Tangan-
yika2-it was relatively coiriiiioripractice in British territories for
representation of Native interests on a governmental body to be
secured by the nomination of one or more unofficial European
members regarded as specially acquainted with those interests. For
examule reference mav be made to Northern Rhodesia Kenva
~ ~ ~~-~~~ , .,
and N yasaland 5.
(c) In the Relgian Congo (as in the mandated territory of Ruanda-
Urundi) there was no participation hy the Native population in the
processes of central government. Rule was largely direct from
Brussels, with some delecation to the Governor-General. assisted
where necessarv bv advisorv bodies 6.
Id) In essence the~a&esituati&applied in the Italian, Portuguese and
Spanish territories, Native participation or remesentation in central
eôvernment beine aeain nit7.
le) The situation in [he~rench territories will be largely apparent from
what has been said ahove in rerard to franchise. The covernmeotal

pu\\.ers of lrgiilarii>n :,nd ;idm~rii.;irniiu;1i:iicli wcr; in the iii:riii
cxt'ri.i:cd frnni Fr.iiii<:aiid t1.ruuh.hCoi i.riiur,-Gciici.Ll,Govrrriori
Licuttcii.iiir-Gdvt!ri ;norlwiiior ufizinlî%.
In al1territories other than Senegalg, Native representation and
participation were confined to membership, nominated and elected,
of various advisory bodies Io.

7. It,will be evident, therefore, that al1the colonial and mandatory
territories south of the Sahara were indeed being ruled by "the White
man", and that, with very limited exceptions", the Native populations
concerned didnot participate at al1in the European systems and methods
of central government and the uolitical-orocesses associated therewith.
'flicscsy-liin.i,nictliodi niii>r,)t:t,.:-ij'\\.cr ;;r.ir;.crdi<luiikno\in
t0 tllc ~.illv<:~)opuI:~t~oii~,:iiicil.<;~tlv:LIv,iri;iiic~witI.rlieircU5tuillj
and trnilirioii~. .\lorco\.vr. tlit <Iii.cr,itv of tr..<liti~iiinl~\.teiiij clierisli<:d
and ap}>lii.dIiydifft\rcnt S.~tii.i.i.tl~iii<~roti~:\v;isLiyn; riicaiia pliciid-
riicnoiiconnnt!<l tuSoutl. \Vcst Afr~cd. I>iir 0tlir coiifr:Lr:Lt:lilir.tci<:ri~tic
of S;iti\.r.Iifi~ncoiintcr~din vdr\,iii; J<çre,; tlirou~hout f fric.^.50. hW

Annex A, para. 3.
Ibid. para. 23.
Ibid.p,ra. 5.
* Ibid. para.17.
Ibid. ,ara.8.
Ibid.p,ara. gq.
Ibid. paras. 51-53, 58 and60.
Ibid. paras. 40, 46, 47 and49.
Ibid. para. 42.
'O Ihid.p.aras.40. 45, 46 and gc.
1.e.those pertaining to certaiWest African territories anto the handful of
Natives on the voters' 1011n the Rhodesias. COUXTER-MEhIORI OAFLSOUTH AFRICA
435

example, the following description has been given of the situation in the
Congo area colonized by Belgium:
"When the Belyianspenetrated into Central Africa thev discovered
rlier<i.1<:xtrilur<iiii:~r!~:iiiiltipliiit!~of pcoplc~,urçai8i~&laçcording
tu cztr~.iiit4y variet1 pnlitical priiicil~lç~.practisiiig \,Cr) iliHcrcnt
murnlj ;,iiicusroms. \vliojc ecoiiuiiiii:piirsiiits diifcr~dcuiisid~rablv
accordiiig to tlic gcugr;ililiic rcgiori, iiid prejcntiiig a ri:iii>rkiibl'e
di\,ersity of Ibcliefj.I;iiigii.i~csand art. . .
'îlic African plur~lisrn is uiislicd to îuch an rutrerri,: rhar the
uninitiated oftei have an impression of it as lack of cohesionor even
anarchy.
The whole lot of these ethnic groups scattered throughout the
extent of the territories administered by Belgium in Central Africa
have never in the past constituted a centralized government above
the tribe, thesmall tribe or a political federation. The country was
cornposeclof a mosaic of entities, of which the importance varied
from the simple village of a few score individuals to kingdoms of
several million subjects such as the Sultanate of Zande and the
Luba Empire '." (Translation from French.)
And Sir Patrick Kcnisoii.\r,liu\\.;fGoverriorof licn!~afruii. itj5910 1962.
rcu:ntly ivrotç:rifiillo\vsaliout the Sativc polilcs of th:%[territor\.:
". . . the pcoplcs of Ken!.;iarL.not oftioinogencousjruck. Uesidcsthe
I<aiitu. tlicre are Silotic. H:iinitii: and Silo-H:imitic: th<: Afriun
trit~esof Kcii).::ire lisJiffcrenr in ;il)pc:lrancc. ciistonis. Inrigusge
:incl\i.:tvof lifea, I.:ikiiiiuîfroin Italiniis. Thc!. :art!ar c\,crv stagc of
civiliz~tiorifroni tlic nio;t priniitiv~.to the iiiost jopltistia?."<I
Under siich circumstancesadministering Powers, in the course of their
exnerience. not unnaturallv came to the conclusion that ~olitical activitv
on'the art of Natives couid, at any rate at early stages 'oftheir develo6
ment. t.est be achicved within the knowii framework of the traditional
svstems of the various mouos. And so there was born a wide-suread
Gactice of utilizing. in vGying degrees'traditional systems in the gÔvern-

"indirect rule".r-.ps-a practice known in British colonial practice as

8. A leading protagonist and practical exponent of the policy of in-
direct rule was Lord Lngard (later for many years a memher of the Per-
manent Mandates Coniinission), who applied and developed the policy
while he was High Commissioner of Nigeria at the beginning of the
century, and elaborated the implications thereof in publications such as
Political Menioranda, 1918, and The Bual Mandate in British T7op~cal
Africa, 1929.Other well-known protagonists have been Margery Pcrham,
C.B.E., lecturer and writer on colonial administration, Fellow in Imperia1
Government, Xuffield College, Oxford, inter alia, in A Re-Statement of
Indirect Rule ',and also Sir Donald Cameron, Governor of Tanganyika
from 1,,5 to 1931 and thereafter of Nigeria. Lord Hailey wrote in 1938:
Sir Donald Cameron's Memorandum of 1934reasserts in sub-
stance the principles formulated in the Political Memorandain which
Brausch. G. E. J. B.. "Pluralisme Ethnique et Culturel au Congo Belge". in
Eihnic and Cullrtral Pluralism in Inter-tropical Cornmuniries, publicabyothe
Internationaltnstitute of Differing Civilisations (19p.)243 and 245.
Renison. Sir Patrick, "TheChallenge in Kenya", in Optimab1e.r. 1963. p. 9.
Piiblishedin AfricoVol. VI1 (193~)p. 321. SOUTH WEST AFRICA
436

Lord Lugard embodied his views of native administration. If the
hlemorandum of 1914 differs from the earlier hlemoranda it is
mainly in the emphasis it lays on certaiii principles selected as
underlying the application of the system. It insists that, if the native
authorities are to become not only a part of the rnachinery of
eovernmeiit but a livine oart of it. the nolitical energies and abilitv

by government must therefore be that which according t& tribal
tradition and usage has in the past regulated the affairs of each
unit of native society; it is equaUy important that it should be that
which the ~eo~leof to-dau are wiiiine to recomize and obev. But
the objectrve is not merefy the utiliztion of native authorities as
instruments of local ~overninent; native adniinistration is coiiceived
as a means of tryiig 'to graft our higher civilization upon the
soundly rooted native stock. . .moulding it and establishing it
into lines consonant witli modern ideas and higher standards' '."
Earlier in the same work Lord Hailey observed:
"The system of indirect rule is regarded by its exponents as a
better starting-point for an evolution tnwards self-government
than any other yet devised by British administrations. Sir Donald
Cameron, when Governor of Tanganyika, expressly stated that in no
other way could the obligation, implied in the mandate, to encourage
such an evolution of peoples 'not yet able to stand by themselves',
be carried out. The political traditions of Great Britain involve theas-
sumption that self-government implies representative parliamentary
institutions, and this is held also by the majority of educated
Africans. It is implicit in the philosophy of indirect rule, however,
that the iiature of the political forms which may ultimately be
evolved should not be prematurely defined, and it is possible that a
development deliberately based oii African institutions may lead to
some new type of self-governing organization ?."
g. The policy of indirect rule \vas practised in each of the three British
mandated territories, TangaiiyikaS, British Cameroons', and British
Togoland And although not by that name, the principles underlying
the policy were applied also in each of the other three Afriwn mandated
tenitories, Ruanda-Urundi 6,French Cameroons and French Togoland ?.
Similarly the policy found application, under its name or by way of
its underlying principles, in a large number of other territories

Io. In pursuance uf. or inaddition t$>,th<:policy and priiiciple; of in-
direct riile. <liffcrt:ritintioiins txt\i.ccn iiiernl>er+of \.xri<iuspopulation
groups was practised in a spirit of guardianship, trusteeship and pater-

Hailey. An Atrican Suni~y (1938). p. 432.
Ibid.. pp. 134-135.
Vide para. 8. supra, and also Hailey. An Afriçan Sunicy (1938). pp. 434 fi.
'Ibid., pp. 477-478.
Ibid.. pp. 494-496.
' Vide Annex A, paras. 44 and47, infra.
qs examples. reference may be made to: Korthern Rhodesia (Annex A. para.
7). Uganda (para.20). Tanganyika (para:q), Gald Coast (para. 28). Gambia (para.
39) Kenya (Hailey. An African Survey (1957). pp. 446.451). and Nigeria (ibid.,pp.
453.470). COUNTER->IEMOR IF SOUTH AFRICA 437

nalism, also in regard to legal systems,land tenure, residentiai facilities,
aspects of economic poiicy, control of population movement, education,
and other aspects of government. In later parts of the Counter-Memorial,
dealing with specific complaints by Applicants, relevant cornparisons
are made on such aspects of governmental poiicies and practices.
II.Thoughout the period nnder review, the bulk of the Native
populations in the African territories concerned showed little or no sien
if desiring any material change in the constitutional arrangements Gd
governmental practices in operation.
It is notable that the first "Congress against Colonial Suppression and
Imperialism", Iield at Palais Egmont in Brussels from 10 to 15February
1927, was attended by only eight delegates from the whole of Africa as
against 24delegates from China and 27from other Asian countries. This
Congress, with such paltry representation from Africa, formulated, itcter
alia, a resolution on Africa wliich set the aims at independence of the
African nations, racial equality and termination of ali racial and class
distinctions '.
l'et, when this political clarion-cal1sounded in 1927the bulk of Africa
neitherpartook nor took note of the new vision of the future.
12.During the years 1930to 1933the first formulation of modern
African political ideals was articnlated more or less clandestinely in
Hamburg in the publication Negro-wovker, by such leaders as George
Padmore, the friend,mentor and subseqnent adviser on foreign affairs ta
President Kwame Nkrumah and Premier Jomo Kenyatta, whilst the
African Continent as snch still displayed no recorded political interest
of the masses 2.

13.Another significant indication of the same nature is affoided by
events in Kenya over the years 1920 to 1931A . long struggle raged over
the question of franchise and representation on the Legislatirre and
Executive CouiiCilsfor Asiatics in addition to those planned and pro-
vided forthe Wliite population3. Yet it does not appear that, throughout
this controversy, the question of similar rights for African Natives as at
that stage was raised or seriously considered.
14.Margery Perham, C.B.E., to whom reference has been made
above ',commented on the plienomenon under discussion as follows:
,. . . For many years after annesation, tliough there was much be-
wildennent, revolts werei7eryfew,and there doesnot a@pear tohave
been mnch sense of indignity at being ruled. It was not until a small
minority, through thcir attainment of the higher levels of Western
education, and above al1 through travel, came to understand
something of the world at large and of their own place in itthat the
spell of acceptance began ta be broken. Excited by the vine of
these newideas, and smarting, perhaps, from some experiences of
the colour bar in Europe, and especiallyin Britain, the young African
wonld return after some years to his own country. He would see its
povertp andsubjection withneweyes, and heurasnow ready tobelieve
and to preach the idea that only by self-government could Africans

' ItaliaanderR..Schwarre Haut im Rofcn Grig (1962)pp.21-zz, 27'31,39-41.
1bid.pp.53,54, 62 and 68.
' Hailey, An AfricoSuniay (1938) pp.164.166.'
' Vidspara. S.supra.438 SOUTH \\'EST AFRICA

escape from personal humiliation and win equality of status in a
world of which they are at last becoming aware. This purpose had
its adherents much earlier in West than in East Africa. The writer,
in studying African affairs and visiting Africain the IO years hefore
the second World War, could mark its rapid growth in the minds of
Gold Coast and Nigerian students in Britain, and in the to\vns of the
West Coast and the Sudan. But before 1939 the numbers of those
whose education had reached the stage of world consciousness was
stiU smaU, and the masses ontside the few towns on or near the
coast seemed to he unaware that their status was, as the young Press
was beginning to declare, a humiliating slavery '."
15. In regard ta al1territones in which there existed a settled White
population of substantial numbers, there was general realization of a
special problem. Although variously expressed and described in different
instances, the problem in substance amounted ta this: how progrcssive
participation by African Natives in the process of central government
could in future be provided for without exposing the White population
to the prospect of political domination by numerically stronger but
geiierally less advanced population groups, with an outlook completely
different from its own.
On the other hand, although the problem was at times raised and to
some extent discussed, the prevailing sentiment appears to have been
that is was considerably beyond the scope of practical political con-
sideration: the general expectation in this regard was apparently that
it would take a very long time hefore African Native populations would
become sufficiently advauced-educationally, economically, socially,
technologicallv and in attendant respects-to take a full part in represen-
tati\.ç, self-goi,eriiing iiistitiitiuns iipoii tlie Europeaii iiiodel.
llliiitr~tion of ilie :iforejioiiiijaiiorded p:irticiil;irl! in the cases of
Kenva nitclSouthcrii Rtiodi:iin, :iiis ver\. briefliin~li~itrxliiithe next
succéedingparagraphs.
16. Although consideration was given during the 1920s to the future

roles to be played in Kenya by the \Vhite and indigenous groups re-
spectively, and although it was the considered opinion of the British
Govemment as expressed in the well-known Devonshire White Paper
of 1923, ". . .that the interests of the African Natives must he para-
mount" 2,inasmuch as "primarily Kenya is an African territory" Z,the
Passfield White Paper of 1938rendered clear that there was at that stage
no contemplation of the gant of political rights to such Africans other
than-
". . .the adaptation of native institutions to the purposes of local
self-government, with the possibility that native and settled areas
might eventually be placed under separate administration 3".
17.Asindicated above 4 and in Annex A, i?tfra5,Natives were prior to
the Second World War excluded from the franchise and had no direct

' Perham. Y., "The Psychology of African Sationalism", in Opli>m, hlar. 1960,
.'.28-20. -
Hailey, An Africnn Sumcy (1938)p,. '35.
' Zbid., pp. 136-137.
' Vide paras.5 (a)and 6 (b) supra.
' Vide Annex A. paras. r6 and 17. COUNTER-MEMORIAL OF SOUTH AFRICA
439

participation in centralgovernment.The Kative population wasevidently
not considered sufficiently advanced forparticipation in such institutions,
and the British Government coiisidered itself as exercising a trust on
their behalf, as a result of \\.hich it should for the time being retain
control over Kenya under the CrownColonysystem 1.
18. An expression of the attitude prevailiiig at the time, contained in
a report of a Commission under the chairmanship ofSir E. Hilton Young,
is summarized as follo\vsby Hailey 2:
"They [the Commission] insisted . . . that until the Native popu-
lation was able to take part in a representativesystem the imperial
government must retain, as their trustee, 'a right to intervene in al1
the business of government'; further, they held thal the digerences
of outlook between African and European whichrnust pe~sist, to
wvhatever stage of development the African community may
attain, wonld make it necessary for the imperial governmentperma-
nently toretainthefunclionofan arbiterbetweenthetwocornmunilies."
(Italics added.)

19. In Southem Rhodesia, as has been noted, the franchise was open
tions only a handful of Natives qualifiedheasrvoters. Lord Hailey wrote in

1938:
"The constitution of 1923establishedalegislativeassembly, which
at present consists of thirty members, and provided for the creation
of a second chamber when the assembly should have passed a law
to tliis effect. The Uuxton Commissionof 1921,on whose recommen-
dations the constitution was based, held that the numbers of the
European population from whom legislators could be drawn were
at that time too small towarrant the immediate establishment of an
iippcr hoiisc.Thc <lur:itiurof rliensar.iiihlyii fi\,iars.Tlic franchise
is uli~iitu ,11113ritislii~~l>j~<.11:ilian~lfcni~lc.111~1iidin?~ lilti\.c~,
subject to a property qualification of €150. and an income qualifi-
cation of £100. The European population represented numbers
some55.000. Theadmission ofNatives to the franchise was consistent
with the spirit ofthe claim of Rhodes for 'equalrights for al1civilized
men'; but it isnot in keeping with thepolicy ofseparatedevelopment
for the African and European populations which is now the accepted
principle in the territory. The possibility of introducing some
alternative system was discussed in the legislative assembly at
every session from 1931 to 1933. In the latter year the Prime
Minister (Mr. Moffat) stated that he had found the Dominions
Office sympathetic to 'the arguments in favour of protecting the
European people of this country from a maiority.of .atives gettin.
on the roll'~3."-
20. The British Government did not commit itself to any period of
time which would be necessary for the Natives of Kenya or Rhodesia to
reach a stage of development where they could participate in the central
governmental sphere '.The Devonshire White Paper of 1923stated that

' Hailey,An African Survey (1938),p. 165-167.
Ibid., p168.
Ibid.. p159.
' Ibid., pp. 250.~53.440 SOUTH WEST AFRICA

in view of the need to safeguard Native interests, the grant of responsible
govemment to Kenya was "au1 of the questionwithin any period of time
whichneed now betaken into consideration" 1.

B. Developments during and after the Second World War

21. In 1938Lord Hailey wrote:
"lt is nul in rlie Uritisli tr.idition tu explore f~r-re.iching~oii.ititu-
tiurial issiiïs until the force of circiiiiijt;siiccsm:ikcj it r.sjcnti;~lto do
so; and it ii not re~sonablr: IO espect tlint :iiiy gu\~vriiiiiçntwoiild
non. enter on ari csplicit commitmeiir regardirig the future statui of
the African colonies. But there is oneleason at least whv some
fiirtliei coiijidcintiuii ili~~iildbc given to tlic qucstioii \i,hcrli<:a
r?ipuiisiLl~:gu\.criinicnt I,:i>edon rcl>rescnt:,rivt:iiibritiirioiis is tu bc
IieldIO bc thc iii(8iaiiit;iblccoiistitutioforttic Afric:iiicolonies. It is
increasingly clear that Africansmust before long be given a material
addition to their very limited representation in the legislative
councils. There is not in the African Crown Colonies any body
similar to the newly constituted Native Councilin the Union, which,
though it may have only a consultative status, can nevertheless
claim to be widely representative. The French administrations have
on the ivhole been more liberal in their provision 01advisory bodies
than the British. If, howmer, native representationin the legislative
councils is firogressiuelyincveased, this will stimulate a hope, if it
does not convey a fipromise,that parliamentary institutions will be
allowedto fiuvsue their normal euolutionin the Africnn colonies; al1
experienceshows thedificulty of callinga hall when political represen-
talion has oncebecomea serious matter O! interest2." (Italics added.)
The italicized words in due course turned out to be prophetic, as will
appear.

22. Margery Perham, after commenting as above indicated on the
apathy shown up to 1939by the masses of the ..\frican population, even
in the west coast temtories, on the question of participation in central
govemment and advancement towards independence', proceeded as
follows:
"But the next IO war and post-war years saw a concentration of
events and influences that spread the consciousness of 'colonialism'
as an evil, and raised hopes, especially dong the West Coast and in
the Sudan, that its super-session in Asia would be followed soon in
Africa '."
During the years sncceeding those referred to by MissPerham, the wave
of anti-colonial feeling in Africa eathered momentum. The demand for
an ever-increasing sbire in the govemments of their countries found
growing support among the politically conscious Africans, and was
strongly influenced by events in other parts of the world, particularly
Asia. The results ofthis awakening Africannationalism oranti-colonialism
form a part of contemporary history and it is accordingly not necessary.

Hailey. An African Suniey (r938).p.251.
* Ibid.. pp252-253.
' Vide para. 14, supra.
' Perham, op. cit.. p29. COUNTER-MEMOR IFLSOUTH AFRICA 44I.

to give a full account thereof in this Counter-Memorial. It was reflected,
enteralia,in the constitutional development of the various territories in
Africa south of the Sahara, wliich is summarized in Annex B to this
Book. There are however certain aspects of the anti-colonial movement
which are of relevance for present purposes, and which will consequently
be dealt with in tlie succeeding paragraphs.
zj. As wiühe seen from Annex B, the development of participation by
AfricanXatives in the centralgovernment ofAfrican territoriescontinued
to be a gradua1 process up to approsimately the middle of the I OS,
after which it moved at an ever-accelerating pace. This reflecte 8 not
onlv the results of a str-nethened demand for inde~endence on the Da't
of Aie iiiciigciivuspopui;irioiis of ilie territoriçs iuN~eriicci.biit :~isotiic
cift.its of iiicrc:isiiigI,riIIIint~~rii:itiol ffai1.j.p:irticuI~~Iyby tlii:
iicurlvindci~eiiil~itiaies of :\frii:i .\hia.
24. The effects of these political demands and pressure may be seen
by comparing the actualsituationtoday with views expressed previously
regarding the period within which dependent temtories could be expected
to develop to self-government or independence. In this regard it will he
recalled that before the Second \\'orld War, and even for a number of
years thereafter, it wasgenerally accepted that most of these territories
would not be ripe for independence for a rery long time, if ever.
In a work written in 1962. Prof. \V. E. Abraham, Associate I'rofessor
of Philosophy at the University of Ghana, said- -
"The reasons wliy Africa lias siiddenly becomc independent and
so finds herself loaded with problems for which she has not cven
adumhratedsolutions are evidently not rooted in the colonial policies
of the metropolitan powers, for even with the eight points of the
Atlantic Charter which Britain admitted to apply to Africa, specu-
lation about the coming of political independence was in terms of
sixty to one hundred years. Likewise in an article in Time and Tide
for Februarv. 10th Ioao. on 'The Future of~ ~e C~ - - - ~ ~here
appeared a <rophetic dè'ositio so,mewhat anticipating the Atlantic
Charter, in which the author, Dr. W. B. Numford. broached a
sixty-year plan. And even the American Committee on Africa, the
\Var and Peace Aims, Sitting in 1942, hardly expectcd that the
generation of Kwame Nkruma, Ako Adjei, Ross Lohr, Ibanga Udo
Akpabio-men from Ghana, Sierra Leone, and Nigeria whom it had
.askedto submit memoranda-would claim andobtain independence
for Africal."
Even in 1952, Mr. Ingles the delegate of the Philippines in the Fonrth
Committee of the United Nations, stated that-
".. .it was reasonable to assume that Temtories formerlv nnder 'B'
Mandate should attain self-government or independCrce within
a. .oximatel. a -eneration2". (Italics added.)

respect of Ruanda-Urundi Mis"tlie formulation of a programme leading ton
the achievement of self-government in 20 to 25 years" 3.The Mission

' C.A.,O.R., SixfSess.FourthComm.,a239th Meeting,8 Jan. 1952p.258.
T.C..O.R..Fiffeenlh Sus.. Supp. Nz. p. 17.442 SOUTH WEST AFRICA

recorded that the Governor-General of the Belgian Congohad expressed
the contrary view that-
"in three or four generations, providing the inhabitants would have
the possibility of associating with other societies which could guide
them, the inhabitants of the Trust Territory could take over the
major task of governing the country '".

The Mission further recorded that its Chairman, MI. Reid, was unable to
support its suggestion, and that he-
"does not consider that any adequate evidence is availahle to the
Mission or the Administering .4uthority on which to estimate that
self-government should be achieved in twenty, twenty-five or any
other number of years Z".

Withthe latter view the Representative of Belgium at theunitedniations
later expressed completeagreement '.
25. The effects of the intensification of the pressure on the Powers
administering colonial and trusteeship tcrritories to speed up the grant of
self-government or independence to the territories concerned, may also
be seen in changed attitudes adopted by tliese Powers. Examples of this
may be found. inter dia, in dehates in the Fourth Committee of the
United Xations in relation to so-calied target dates for self-government

or independence of trusteeship territories. In 1949,for instance, the repre-
sentative of the United Kingdom said:
":\ri!.;ittcmpt to forcc rhc pnce of nd\.;iri~-ernentrniglit iiifiict
1.d~~. ilituiidcsir.iblc r~sulr of pllcing th,: rii;.ss of the iriiligeiiouj
pupulatioii nt tli~mcrc!. of the hcrrer ediic:itcd niinoriry '."

In 1957.
"... the United Kingdom policy was to advance step by step,
neither too quickly nor tao slowly judging the exact nature of each
step in the light of experience of the last one . .. 5".
But by 1961, the attitude of the United Kingdom was expressed as
heing-

"[that] in the advance towards self-government it was better to go
fast than slowly, and that the attainnient of self-government and
independence accelerated the economic advancement of the Tem-
tories 6".
A similar change of policy occurred in the case of other States which
administered coloniesor trusteeship territories. Bythe middle 19jos (and
for some years aftenvards) these States were not prepared to commit

1 Ibid.Op. 18.ifteentb Sess.. Su@@.So. 2, p. 16.
' T.C., O.R., Fifteanth Sers., GozndAIeeting, hlnr.1955. p.294. AS to a similar
suggestion and similar reactions re Tanganyika, vide T.C.. O.R., Fifteenth Scsr.,
Su+$. No. 3. pp. 67 and 68 and T.C., O.R., Fifleenlh Scsa., 584th Meeting, 24 Feh.
1955. P. 167.
' C.A., O.R., Fourth Sess., Fourth Comw., gjrd Meeting, 6 Oct. 1949, p. 24.
' G.A., O.R.. Twelfth Sers.F.ourlh Comm.. 73rst bleeting. 5 Dec. 1957. p. 439.
G.A., O.R., Sizleenth Sers.. FourfhComm., 1182ndMeeting. 24Oct. i961, p. 156. COUNTEK-MEMOR IAFLSOUTH AFRICA 443

themselves to tamet dates at all '.In fact. however. most of the territories
concemed attainëd self-government or independence before the end of
that decade, or within the first few years of the next. In the words of Sir
Patrick Renisori, who was GovernoÏof Kenya from 19j9 to 1962:
,'... the cry was 'faster, faster!' and there was no turning back;
India, Burma, Ceylon, West Africa, the Sudan, Malaya. Jamaica,
Trinidad-with the French and Belgians on the same bandwagon.

Xow it isEast Africa's turn, with Central Africa to follow.When it
was decided to match the ltalians and set an early date for Somali-
land's independence, it was clear that the remaining formative and
educative years in East Africa would be few in number. Never-
theless, the estimates of the time remaining then made by the
experts look ludicrous to-dav 2."
2ti.TIic dçni:inil ior :ici:i:l~r:itcdpolitic:il I)rogr<:ss:intlirçoinpliaiise
ther~.witliby tlie Potvers which controlltd iioii-self-goveming territorles.
rcHritrd 3 s~gnificrinrclian~e in ntriturlcs toivnrds tlie srntv of advancc-

ment required for self-govefnment or independence.
In 1931. the Permanent Mandates Commission, in its report to the
Councilof the League of Nations, stated;
"U'hether a people whicli has hitherto been under tutelage has
hecome fit to stand alone without the advice and assistance of a
mandatory is a question of fact not of principle. It can only be
settled by careful observation of the political, social and economic
development of each territory. This observation must be continued
over a snfficient period-for the conclusion to be drawn that the

spirit of civic responsibility and social conditions have so far
progressed as to enable the essentialmachinery of a State to operate
and to ensure political liberty 3."
The same attitude ufas expressed even in the middle 1g5os. Thus in

' Vide as regards the United Kingdom:
C.A..O.R., Sixfh Sesr., Fourth Comm.. 239th Meeting, 8 Jan. igjz, pp. 259-260:
1:lcuenfhSess.. Fourth Comm., 639th Meeting, 16 Feb.,957, p. 441;
Tweljth Sess., 731st Meeting, 5 Dec. ,957. pp. 438.439: Thirteenth
SesS.. FourIli Comm.. 795th Meeting. 12 Nov. 1958, p. 277;
France : C.A.. O.R., Sixlh Sers., Fourth Comm., ~40th Meeting. 9 Jan. 1952,
p. 262; Eighth Sess.. Fotirfh Comm., 389th Meeting. 3 Dec. 1953, p-
499:
Australia: C.A., O.R., Sixth Sess., Fourlh Comm., 240th bleeting, 9 Jan. 1952.
p. 262; Eighfh Sess.. Fourth Comm., 389th Meeting. 3 Dec. 1953,
p. 501; Elevcnth Sess., Fourth Comm.. 628th Meeting. 8 Peb. 1957,
Belgiurn: P. 392:
G.A., O.R., Sizth Sess., Fourth Comm.. 240th hleeting, 9 Jm. 1952,
p. 263; Tenth Sesr., Fourth Comm., 519th Meeting, 23 Sov. 1955,
Cainm.. 638th Meeting, 15ecFeb.51957 p. 435;leveirlhSESS.,Fourth
Xew Zealand: C.A., O.R., Sixth Scss., Fourth Comm., 240th Meeting. 9 Jan. 1952,
1,.26s; Eichth Scsr.. Fourfh Comm., woth Meetinp. 3 Dec. 1953.
P. 507:. -. . -
The United States of Arnerica- G.A., O.R., Eighth Sess.. Fourlh Comm.. 386th
Meeting. I Dec. 1953. p. 482; Thirleenth Scss., FourfhComm.. 794th
Meeting, Ir Nov. 1958, p. 209.
Renison. P.. "The Challenge in Kenya", in Optima, Mar. 1963. p. 8.
'P.M.C., Afin., XX, Annex 16.pp. 228-229. SOUTH WEST AFRICA
444

1955, the representative of the United States of America. speaking 01
the indigenous inhabitants of Tanganyika, said in the Tmsteeship
Council that:
"... the problem \vas not wbether they would be capable of govern-
ing themselves in twenty-five or thirty years, but whether they
would by that time be economically self-sufficient, which was es-
sential to independence '".
In the same year the representative of the United Kingdom said,
also in the Trusteeship Council:
"The essential requirements for tme self-government might be
reduced to two. The first \vas a fairly large body of persons with
education, knowledge and experience, prepared to assume re-
sponsibility, who had and deserved the confidence of the majority
of the people. The secondrequirement was that the resources of the
country should be so developed that, through its own productioii
and trade. the country was self-sufficientand in a position to provide
adequate funds to maintain the Govemment, including all public
services 2."

A Belgian representative pointed out in 1gj6 that-
"Educational, social, health and economic developments were as
important in promoting a people's advancement towards self-
government as the establishment of legislative councils and the
introduction of universal suffraee. and it would not further self-
governrnent to rediice the problems involved in its attainment to
formulae to be studied out of their social and economic context 3."
27. However, the view that economic, social and cultural progress
should precede political independence, came to be strongly contested
by many States. Thus, in 1960,the representative of Iraq stated that-
". . . political advancement took precedence over economic and
social advancement, because the populations were impatiently
demanding independence '".

In 1959 the Liberian delegate had said: "No amount of developmeiit
could compensate for lack of freedom" 5-a view whicli had also been
expressed as follows by a delegate of Ceylon: ".. . the so-called new
nations. . .certainly believed that good government was no substitute
for self-government 6."
And in 1961the Guinean representative stated:
"Irrespective of the state of development of a particularTerritory,
its full independence based on territorial integrity was the sine qua
non for rapid progress in al1fields '."
The manner iii which the progress referred to by the Guinean represen-
tative was expected to be achieved in many cases, \vas well surnmarized
in 1960bythe delegate of Tunisia in the followingwords:

'T.C.. ,.R., Fiffeenth Sess.. 584th Meeting. zq Feb. 1955. p. 767.
'T.C. ,.R., SeventeenthSess., 687th AleetingMar.1956, p. 267.
'C.A., OR.. FiftrenfhSess.Fourth Comm., 1013th Meeting, 17 Oct. 1960, p. 68.
'C.A., O.R., FourleenthSess., Fourth Co~nn.,98znd MeetinzDec. 1959. p.600.
C.A., O.R., Elcu~nihSeas.FouvlhComm.. 607th Meeting.22 Jan. 1957. p. 292.
'C.A., O.R., Sixie~nSess.,FourlhComm.. ri86th Meeting, 2Oct. 1961, p. 186. COUNTER-IiIEMORIAL OF SOUTH AFRICA 445

"If non-Self Governing Temtories, upon becoming independent,
were economically, socially and educationally under-developed,
they could be helped by the United Nations, which would, of course,
respect their sovereignty, but there could be no question of delaying
their independence '."
28. The view expressed by the speakers citedinthepreviousparagraph,
found increasing support in world poiitics. In 1960 a resolution was
roposed in thc United Nations General Assembly bf 43 .4frolAsian
gtate and adopted by 89votes to o, with g abstentions both Applicants,
and al1 African members who were present. voting with the rnajority,
the colonial powers and adrninistering authorities generally abstaining) 2.
This resolution (which was called the "Declaration on the granting of
independence tocolonial countries and peoples") contained the following
. -.ETa~hs :
"1. 'Tliesuli]cction of pcoplcs to :ilizii îtil>jo~ation.dorniiiatioii and
cxploit;ition conititutes n derii;il of ftiiidamental liuman riglits.
is coritrarv to the Charter of tliz Uriited Sations and 15.ri1
impediment to the promotion of world peace and CO-operation.
2. Al1peoples have the right to self-determination; by virtue of
that right they freely determinetheir political status and freely
pursue their economic,social andcultural development.
3. Inadequacy of political, economic, social or educational pre-
fiarednessshozsldneverserveas afiretextfordelayingindefiendence.
IItalics added.!
5. jmmediaie steis shall be taken, in Trust and Non-Self-Gouerning
Territories or al1 other territories whichhave not vat attained
independence, totransjeral1fiorniertsothepeoples 01thofeterritories,
withoat any conditioizsor reservntions.in accordance with their
freely expressed will and desire, without any distinction as to
race, creed or colour, in order 10 enablethem 10 enjoy coinfilete
independenceand freedom '." (Italics added.)
Paragraph 5 of this declaration was quoted in a resolution adopted
the next year. This resolution read:
',
The General Assembly .. .Noting with regret that, with a few
exceptions, the provisions contained inthe aforementioned paragraph
[i.e:, the quoted paragraph 51of the Declaration [on the granting
of independence to colonial countries and peoples] have not been
carried out,'.'
and
"Emphnsiting that inadequacy of poiitical, economic, social. or
educational preparedness shouid never serve as a pretextfor delaying
independence,
1. Solemnly reileralesand reafirins the objectives and principles
enshrined in the Declaration on the granting of independence to
colonial countries and people contained in its resolution 1514
(XV)of 14th December, 1960;
2. Calls upon States concerned to take action without further

' G.A.. O.R., Fifteenth ScF,ourLhComm.. 1025th Meeting, 27 Oct.1960.P. 147.
GA., O.R., Fifteenth Scss., 947th Plenary Meeting, 14 1960,pp. 1273-1274.
' Resolution1514 (X\') inG.4.. 0.R.. Fift~e%tlrSSupp. No.16 (A14684). p. 67.446 SOUTH WEST AFRICA

delay with a view to the faithful application and implementation of
the Declaration '."
Again the independent States in Afriw played a major role in the

proposal and adoption ofthis resolution.
It will also be scen from these resolutions that by 1960 the prevailing
atmosphere in the Uriited Kations was one requiring trusteeship terri-
tories to receive independence forthwith. irrespective of the level of
advancement of their populations.
29. The approach that dependent territories sbould receive political
self-government or independence as a first priority-Le., before they had
reached the stage of advancement and economic self-sufficiency which
hadpreviously been regarded as a sine qua non for the proper functioning
of the machinery of govemment-was eventuaily accepted by the
colonial powers and administering authorities. Reference has been made
to the statement of a British representative in 1961 that-
"in the advance towards self-government it was better to go fast

than slowly, and that the attainment of self-government and
indepeiidence accelerated the economic advaiicement of the terri-
tories 2".
This genernl approach was given effect to by most of the colonial
Dowers.ivith the ~c~ ~~ant creation towards the end of the IQ2.. and in
tlirr.:~rl!,1<,6~iof:Liiiimbcr ofnéwpditicdl!. iiidipi.iiiieiit hiir ccuiiomi-
c;ill\.rlci)enrl~ntStste~iii.\fric~. L)itticultieie~~co~inter~vl tlirse States
in <heirSattempts to provide peace, order and good goveriment despite
the lack of economic and political maturity in the majority of their
populations. wiil be considered below.
30. Reference has been made above to the increasing pressure exerted
by the newly independent .4frican States to enforce the grant of self-

goremment or independence to dependent territories and peoples in
Afriw. The present proceedings against Respondent are to be seen,as
part of this political campaign designed to bring South West Africa
(and eventuaily the Kepublic of South Africa itself) into line with the new
governmental systems established in other parts of Africa, aiid to achieve
for the Territory majority rule by the Native population-as au over-
riding objective to which al1 other aspects and implications are to be
subordinated. Thisfeature appears clearly from debates at, andresolutions
of. confererices of African States, which will be dealt with in the suc-
ceeding paragraphs.
31. InJuly 1959 a conference was held at Sanniquellie,Liberia, between
the Presidents of Liberia and Guinea. and the Prime Minister of Ghana.
In a joint communique, the leaders of the said three Statesstated in
regard to South West Africa:

"We maintain that this Territoryis in fact a Trust Temtory of the
United Nations. and as suchthe United Xations cannot relinquish 1tS
legaIaridmornlre~~ion~il~ilities to tliçiiidigciioiisirili~hitniits,\vhoare
éntitled to tlic sniiic trtstmcnt giten to otlicr 'l'ruit'f~rritoriei. L'on-
.~e<1uentl!~w. e will rquest the United Sations to gi\~ furtlier

' Resolution 1654 (XVI) C,.A., O.R.SixleenlhSeas.. SuppNo. 17 (Als~oo),p.65.
videalso para. 96subra.Sess.,FourlhComm., 1r82nd Meeting. 24 Oct. 1961p. 156. COUNTER-MEMOR IF SOUTH AFRICA 447

consideration to this question, declare the Territory not a part of
South Africa and fix a date for the independence of the Trust
Territory of South West Africa '."
It is to be noted that the composite aims of tiusteeship as set out in
the Charter, viz., to promote the advancement of the inhabitants of the
territories in a number of different respects, had, in the minds of the

authors of the communique, been reduced to the one single aim, namely
the speedy attainment of independence irrespective of other considera-
tions.
j'. 'l'lis~inr;itli~iiilto\v.iidi Jc.prri,l~rit ti:rriruric.s, irid ~~xrticularlj~
South \\'est .ilri,..i, pcrnit;itt:d th^.pr~<.~~diiiq; uf III<.\I\>iirt>viCon-
fereii<<:of I;v~c~~I\Il~~~ijt,-rof Ind~.vei~<I~r;i\---i<-x~itat~~ helil lateriii
the same year at which both Applicants were represented 2.
In his openinc address, the President of Liberia said, inter alia:
" In our relationshifis with non-self-governing territories,what is
most important to us is theindefiendenceoftheseterritories.Any policy
which tends to hinder the attainment of this aim is reproachful to
the Liberianpoint ofview j." (Italicsadded.)

At this Conference, the followingresolution was adopted:
"Resolution on the Ouestionof South-West Afvica
The Conferenceof ~nde~endenf African state;,
Deeply wncerned by the situation in the territory of South-West
Africa.
I. Urges the Government of the Union of South Africa to im-
plement the Resolutions of the United Nations concerniug the
territory of South-West Africa.
2. Maintains that this territory is in fact a Trust ~erritor? of the
United Nations, and as snch the United Nations cannot relinquish
its legal and moral responsibiiities to the indigenous inhabitants who
are entitled to the same treatment given to other Trust Territories.
3. Appeals tothe UnitedNations to fixa datefor theindefiendenceof
theterritoryofSouth WestAfrica '."(Itaiics added.)

33. The next year, when the Second Conference of Independent
African States met at Addis Ababa ', the question of South West Africa
was again discussed. hfr. J. Rudolph Grimes, the Secretary of State for
Liberia, isquoted assaying:
".. . my Government, as a former Member of the League of Kations
at the time of its dissolution, had already indicated ils determination
on behalfof al1the African States, to pztrsuefzcrtheraction to pet this
territoryplacedundevthe Trusteeship firouisionsoftheCharter.We are
pleased to know that in this we have the supportand CO-operation of
other African States.This matter wiilbe discussed at this conference
and it is hoped that final decision for fnrther action will be taken
before we adjourn 6."(Italics added.)

Joint Communique in The Firrd Wesl African Stammit Conference held nt San-
niqlieliie, Jzdy 15-11959, issued by the Liberian Information Service, p.30.
4-8 Aug. I959, vide Legum. C., Pan Africakm (1962).p. 165.
' Departmental information.
Legum, C., Pan Afrieanirm, p. 168.
' 1,p. 82une rg6o. COUSTER-hlEhIORI AFLSOUTH AFRICA 449

I. Declaresthat the forcible imposition by the colonialpowers of
the settlers tocontra1 the governments and administrations of the
dependent territoriesis a flagrant violation of the inalienable rights
of the legitimate inhabitaiits of the territories concerned;
2. Invites the colonial powers to take the necessary measures for
the immediate application of the Declaration on the Granting of
Independence to Colonial Countries and Peoples; and insists that
their detennination to maintain colonies or semi-colonies in Africa
constitutes a menace to the peace of the continent;
... .......... . ..........,

5. Xeafirms further,that the territory of South-West Africa 1san
African territory under international mandate and that anyattempt
by the liepublic of South Africa ta annex it would be regarded as an
act of aggression; Rea@rirmsalso its determinatiori to render ail
necessary support to the secondphase of the South-West Africa case
before the International Court of Justice; Reafirms still fnr-
ther, the inalienable right of the people of South-West Africa to
self-determination and independence 1.''
As will be seen, the present proceedings are considered as part of a
concerted effort to advance the process of "decolonization" towards the
"unconditional attainment of national independence" of al1 African
territones.
35. It is not Respondent's concern to criticize adaptations which other
governing powers have made in their policies in the light of the rise of
nationalism on the part of African peoples and of thegrowingvehemence
of the "anti-colonialism" campaigii. There can be no question about the
soundness of the principle that guardianship and tmsteeship exercised
over peoples unable to stand by themselves, are inherently intended to
be terminated upon attainment by the "wards" of a stage of maturity
which enables them ta decide upon their own future. If, upon reaching
such astage, the rvardsstrongly desire self-governmentand independence,
there can be no question about a moral right on their part ta attain such
ideal, nor about the soundness of a policy of allowing them to do so-
in both instances, however, subject ta due consideration of adjustments
ta be made, and of a balance to be struck, between competing or con-
flicting claims of comparable moral potency on the part of various
peoples.
In some parts of Africa the adaptations to be made were not compli-
cated to a material exteiit by this last-mentioned factor. As was said by
the South African Prime Minister, Dr. H. F. Verwoerd, in London in
April 1960:
"In certain parts of Africa where the white man also mled alone
before, a solution is relatively easy ... I refer to the countries of
Africa which undoiibtedly belong to the black mail by settlement
and inheritance, although they were taken over, administered and
developed by different white nations. It isright that their land should
now politically become their own 2."
The complications regarding application of the principle in such

' OfficiaText,Resolutions inSummil, C.I.A. S/Plen. z/Rev2,pp.1-2.
Address totlie South Africa Club, London, in Fact Paper gr. rg61.p. 12450 SOUTH WEST AFRICA

instances have been rather of the nature of timing, of co-ordinating differ-
ent aspects of development projects, or compensating for lack of co-
ordination. and the like. In other insta~ce~~~~-~ever. the com~lications
ha\k in\,olvcd a iiiore serioiisweigliing and bil,incing of conipetiiig and
conrlictiiig mor;il ~laiii~s ;iiitri~lits of difiererit populztioii h~oups at
various stag~i of civilizatioii anil dcv~I~~>ni~na t,s\\,i:ippcar I>cIo\\..
36. What Respondent does wish ta emphasize is that the decisions
which had to be made by the Powers concerned, wereof apolitical nature,
and were not dictated by legal principles or engagements which fallta be
adjndicated upon by a court of law. Moreovôr, the nature of thedecisions
made, the forces that had an influence upn them. and their factual
implications and consequences in various African temtories, afford a
veryinstmctive background forcomparing and evaluating theadaptation
of policies being applied and planned for future application by Respon-
dent in South West Africa with a view to attainme~it of the ideals of the
Mandate in the altered present-dav circumstances. It is with a view to
rclcv;rnce in thej~. resp&çts thai i<cspoiidciit in the iicur siiccccding

parngr:iptir givci bric( consid~ratio~itu,;omc of tlie msn~fe;t<:dteii<lcncics
in\.olvcd irithe ad~ptatiun iriutlicr t<:rritorics.
37. Political boundaries iri Africa were for the most part drakn in
Europe by statesmen with inadequate knowledge or appreciation of the
natureand importance of the ethnic composition or tribal affiliations of
the inhabitants. The result is twofold. Firstly, most. if not all, of the
territories in Africa are inhabited by a variety of different +d often
widely divergent population groups, and, secondly, many population
groups straddle the politicalboundaries between two or more territories.
Under colonial mle, any disputes or enmities between the various groups
were controlled or snppressed by the colonial Powers. Dnring the tran-
sitional period leading ta independence, such dis utes or enmities were
often submerged beneath the surface of "nationafsm", which frequently
did not take the positive form of a common allegiance to a nation con-
sisting of al1the inhabitants of a territory, but rather the negative form
of "anti-colonialism". or a common opposition ta the Power in political
control of the temtory. On attainment of independcnce, the cohesive
forceofsuch "nationalism" would tend to fa11away, leaving loyalty to the
individual tribes or clans as the strongest political emotion felt by the
inhabitants of the newly independent State.
Thns it has been said:

"The spirit of nationalism and the struggle for independence
create in many of the new countries an illusory sense of national
unity. Once independence is achieved, however, the old ethnic,
linguistic. religious. or tribal loyalties tend ta reassert themselves
with renewcd stren~th: India had to be divided into two conntries,
Uurin:~has Iiad toUfight five jcparatist rn<<veriieiits.Iridones~t 11%
hccn torn by tlicdivisive force;of fanatical \li~slimsaii(liioii-.J;ivaiidsc
n3tiunaliîtj. Glisiia has li:iitlic o~miition of the Asliaiiti chiefs.
and more casualties have resulted'f;om intertribal fighting in the
Congo than from the attacks on Europeans '."
38. The unfavourable implications of the situation sketched in the

Millikan andBlackmer. op.cit.p,. 76. COUNTER-MEMORIAL OF SOUTH AFRICA 451

previous paragraph, are aiso referred to by Sir Patrick Renison, who
says:

"Kenya is not the first country approaching independence in
which, as soon as the coming transition of power was certain, al1the
old tribal jealousies, animosities and fears, which the British had
controlled, came straight up to the surface 1.''
In regard to the Congo (Brazzaville) Republic (the former French
Congo) Gwendolen M. Carter, Professor at Smith Collegein the United
States of America, said:
"What conclusions can one draw fromthe early experience of the

Congo Republic? It suggests that territories without a defined
nationalist movement are particularly susceptible to tribal divisions.
Moreover, in the absence of a substantial Westernized elite and of
widespread sentiments of nationalism, political organization almost
inevitably rests on tribal sentiment. As the French anthropologist
had pointed out to me in our conversation in Brazzaville, political
organization and the stimulus of elections may, in fact, revive old
and half forgotten tribal connections and make them again signifi-
cant. As the fierce riots in Poto-Poto revealed, political tensions
with such a tribalized base may create divisions which were not
there before 2."
39. As is me11known, similar problems manifested themselves in the
former Belgiaii Congo.Thehistory of the secessionof Katanga and Kasai,
the disputes between various tribes within these break-awav ~rovinces
and in ihe rest of the country, received wide publicity at the time and
need only be inentioned here 3.

40. The problem is also illustrated by the case of Ruanda-Urundi,
formerly a mandated territory and later a trust territory under the
administration of Belgium. The ethnie situation in the territory shortly
before it was granted independence was described in the followingterms
by the Belgian Representative in addressing the Fourth Committee of
the Uriited Nations:
"A second problem, and one more likely to cause disturbances and
imhalance, was the result of the ethnic-social structure of the
population, which wasstratified into the Batutsi, Bahutu andBatwa.
In some areas, there was real tension between the Hutu peasant
masses and tlie Tutsi pastoral and ruliiig class. The growing self-

awareness of the Bahutu was the direct result ofincreased education,
the spread of Christianity and the breaking up of the classes of the
feudal pastoral system, which no longer corresponded to the eco-
nomic classes. The peaçant masses were no longer satisfied with the
treatment which they sometimes received in their traditionai
Society. That problem, which at the present time wasmakingparty
rivalries particularly acute, was not insurmountable. Those tensions
could be reduced only if ail concerned accepted the same principles
of fairness and justice '."

Renisan, op.cit.pp. 8-9. -.
Carter,G. DI. ,ndependence for Africa(1960)p..94.
'Vide Legum, C.. Atrica:A Handbook to the Continent (1961).pp. 193-194 and
Millikanand Blackrner, op.cil.p. 76.
' GA., O.R., Fourtaenth Sess.Fourth Comm., 944th Meeting, gNov. IQ59. p.334.4j2 SOUTH WEST AFRICA

41. A solution to the problem in Ruanda-Urundi !vasfound by ivay of
temtorial separation of the former provinces into the separate indepen-
dent States Rwanda and Burundi. Speaking iii the Fourth Committee of
the General Assembly of the United Nations, Mr. Ngendandumwe, the
Deputy Prime Minister of Burundi, dealt as follows with the reasons
which motivated such separation:
"After several wecks of discussion iii Brussels, the representatives
of the two States had been unanimous in recognizing the need for
an economic union and had agreed to study the establishment of a
single system for the administration of monetary and customs
matters and controls. The main question to decide was whether to
stop at economic union or to go further and seek political union.
As matters were, the peoples of Rwaiida and Burundi had no desire
to share a common destiny or to send representatives to the çame
assembly. It wassignificaiit that the General Council established by
the Administering Authority had proved a failure and that the
persons who had agreed to serve on it had been regarded with
disfavour by the population. Recent events had further emphasized
the divergencies and even rivalries between the two States, which
had entirely different, if not incompatible, systems. It was therefore
further necessary to seek a solution other than a contrived union
which would break up as soon as independence was declared, just

as vnrious other unions of that kind liad broken up elsewhere.
Moreover, economic iiecessity was not enough to create politically
viable States. If that were so, Europe would have been united
lo11gago.
'l'licunlypossiblccoiii~>roiniit~foRwûii(1;iûiid I3iiriiii~li.tliervforé,
SKIS an ?coiioniic iinion of t\\,o genuincly indepcndciit States., Later
oii.it niiglit I>epossibleto devis^.soliitiunj tliat werï bctter siiitcti)
the circuiiist;incei ;iiirriiorz prnctic;ilile. but not before r:idic:il
changes of striictiire hnd hccri iri1roduct;d iri:iccord:iiicc with the
wishës of the tivo populations. Rivalry, accentuated by recent
political developmeiits, \vas a factor that mustbe taken into account.
Any attempt at political union was bound to fail and might even
~~rti\.cdn~i~lrr~ilis.rir \voulJ complic:,tc the prohli:in iinnccc.is;irily
il oll b I I ro iniye,le ;, ftiriii~union. .\ccordingly the
rcprcacntati\.~s of ili,t\iu jt.itiis \i.,:rese~.kinxsolurioitti.i\i.oiild
leave the future open 1."
42. Similar problems arose in the British Cameroons. During the
mandate period, the mandated territory of the British Cameroons was
administered as a part of the adjoining Territory of Nigeria. This was
done, according to the British authorities, "in the interests of the natives
of the mandated territory", and had "resulted in the revival of historic
associations between tribes and States which formerly were severed by
the Anglo-German frontier" 2.
In 1946 the General Assembly of the United Nations approved a
Trusteeship Agreement for this Temtory. By 1954 the northern section
of the Cameroons was closely integrated with the Northern Territories

'G.A., O.R., Sizleenlh Sess.,Fourth Comm., 1z6zndMeeting, 18 Jan. 1962.
p. 652.
'RePort by His Brilannic hiajesty's Government on tha Adnti$iistralion undm
Mandale ofthe Rrilish Cameroons forthe Year 1914, p. 5. COUNTER-ME&fORIALOF SOUTHAFRlCA 453

of the Federation of Nigeria, whereas the Southern Cameroons was a
separate federal constituent '.
Subsequent referendums showed the strength of tribal and ethnic
affiliations-the Northern Cameroons elected to join the Federation of
Nigeria, while the Southern Cameroons preferred a political association
with the Republic of Cameroun 2.
43. The history of British Togoland followed much tlie same course.
Under the British Mandate it was, on I April 1924.divided for adminis-
trative purposes into two sections, one of which was administered as a
part of the Xorthern Territories of the Gold Coast, and the other as a
part of the Eastern Province of the Gold Coast. The reason for this was
.ven as follows:
"This rneasure accords best with the geographical and ethno-
graphical coiiditions as well as with administrative convenience, and
has resulted in unifying tribes which were previously divided 3."
In 1946.Togoland \vas placed under United Xations Trusteeship. The
United Xations Visiting llission in 19jj gave consideration to thefuture
of To-oland. and in its reoort said. inter a&:
"1s i;e<~u:iII!t.rii~f geogr.i~>Iiicnd i1iii1;~tiidi\.i;ions tlirouglioiit
11.1spart of \\'est :Ifricl. ~tliiiugrnpliii ;tiid linguistic boiiii<l~ry1iiii.s
iuii roiiclil\. east ;ilid \r.est, \i.ith the resiilt ttiat t;1ii<cultiir:il
assoiiiiirons tcnd tu estend ~croi, tlic froiitiers into nvighbouriiig
tt?rritorii.xsnd tlir etliiiic soiiipoiitioii of the ~~~iiiilisiestrïriiclv
comples '." -.

. . . . . . . .. . . . . . . . . . . . . . . .
".. . the Mission found that in the Northern Section of Togoland
under British administration. opinion was overwhelmingly in favour
of integration of the Territory with the Gold Coast. In view of the
distinctive ethnicand liiiguistic characteristics of the population and
of general conditions in tliis area, the hlission felt that its future
should be determined, not by a majority of the total vote in the
Trust Territory, but hy a majority of votes within this area. In the
soutlierii districts ofKpandu and Ho, the Missionfound opiniori weii
divided between the supporters of integration and those who
advocated independence for a unified Togoland. In these districts,
moreover, the majority of the population is Ewe and the question
of Ewe unification has eserted considerable influence on the course
of events in this region in recent years 5."
In the result, aplebiscite held in 1956resulted in a majorityinfavour of
integration of the whole area with an autonomous Gold Coast. This was
effected wlien Ghana (previously tlie Gold Coast) became independent
in 1qi7 6.

Report by He, ibfajerty's Governmenl in the United Kingdom Io the Gencral
Assemblv ofthe United Nntio~is on the Cnmeroo%rsunder U%ifed Kincdotn Admini-
strationjor'lheYeor 1954, pp. 12-13,
Vida Annex 13.para.47, infra.
' Repovt of IIis Majesly's Governm~nt on the Adntinistration under Mandate of
British Togolnnd for /haYeor 1924, p. g.
' Ibid.,p. 16.Fifth Special Scss.. Sufip. 2,.p.7.
Vide Annex B. para. 49.454 SOUTH WEST AFRlCA

44. A particular manifestation of the lack of unity in many newly
independent African States, can be seen where a substantial part of the
population is of European origin. Despite attempts in the past, it has
never been possible to establish in an integrated political entity a bais
of real and successful CO-operationbetween a settled White community
and African Native populations. The tendency has always been towards
attempted domination of one over the other.
45. The tendency referred to in the previous paragraph may be seen
in the break-up of the Central African Federation, where a serious
attempt was made to create a form of "partnership" between Black and
White. Its three constituent States are now, as regards two (Xortbern
Rhodesia and h'yasaland), politically dominated by the Native popu-
lations, wheres the third ex-member, Southern Rhodesia, is White-
controlled by virtue of a qualified franchise, but is under continual and
severe pressure to afford political hegemony to the Native inhabitants
on the basis of "one man one vote" '.
Kenya is another case in point. In regard to its political development,
Sir Patrick Renison mentions that by 1960 "the slender hopes of multi-
racialism were dying

46. Where political control has been handed to an African Xative
majonty, the tendency has been for any settled White population to
leave the country. Thus in regard to the former Belgian Congo,it has been
said: "Kivu was called the Congo's 'White Highlands' till political
violence drove out its 14,000 European settlers. . .3" And, in regard to
Kenva:
"The Europeans who nsed to have so much say in the government
insisted on tlie standardsto which thev were accustomed in Western
Euro~e. The administration was run t6 those standards. aswere-on
the ~uro~ean side-production and marketing, com&erce, schools
and hospitals, research-and. indeed, houses, gardens, clubs, games,
sport, wild-life safaris and everything else that has made Kenya.
with its superb Iiighland climate and great variety, one of the most
attractive countries in the world in which Europeans may live. The
independent African Kenya will have no chance of maintaining
these standards, yet, if it lets them fall toosuddenly ortoo greatly, it
will lose even more of those [Le., the Europeans] on whom the
economy and revenue depend '."
At the time of the writing of this portion of the Counter-lfemorial
Kenya has just become independent, and news reports abound of Euro-
pean inhabitants leaving the country.
These are uot isolated examples-the tendency for Europeans to leave
newly independent States under Native domination, has also been
'
manifested to a greater or lesser estent in al1other parts of Africa.
47. The reasons for the tendency described in the previous paragraph.
varvas between individualand individual.andas.between State and State.
Apart from instniices wlicredisorder. chaos :<ndl>loodshedcnuxd an exo-
dus of Eiiropcans (01\i.Iii~.hthe former Uelgian Congoisan esample). the

' Vide Chap. VII, para. 22,infra.
Renison. 06~ .~l.. ,~o.
Legum, c.,Alrim. A Handbook toIhsContinent (1961).p. 194.
' Renison. op. ci!.p.9. COUNTER-JIEMORIALOF SOUTH AFRICA 455

reasons may largely be sought in the vast differencein outlook, attitude
and standards of development as between African Native populations in
general and European or White groups in general. These differences
have manifested themselves in various ways, ofwhich examples wiUbe
given in the succeeding paragiaphs.
48. Although al1 the newly independent States in Africa initially
possessed democratic constitutions,therehas been a tendency throughout
the Coiitinent to adopt one party systems of government. In this regard
Chief II. O.Davies of Nigeria has said:
"The ordinary people do not understand party politics, except as
a call to war against the members of tlie rival parties. ..
Broadly speaking, the African Parliamentarian does not under-
stand the meaning or functjon of the Opposition. He beiieves that
once a leader has been elected, he isin for good and everybody must
accept his leadership. He tends to regard the opposition member asa
saboteur who should be hounded out of the political arena '."
Consequently, in atleast 15 of the independent States in Africa south
of the Sahara, there is at prcsent no parliamentary,opposition *. This
situation has in some cases rejulted from ovenvhelming public support
for one party, but has mainly been achieved by legislation, including, in
some instances, the proscription of opposition parties.
This attitude on the part oi governing parties was referred to by an
American political scientist, who is.said to have defmed African de-
mocracy as "one man, one vote, once" '.
49. ~he Africanization of the Public Service has been a prolific source
of dissatisfaction in manv African States and territories. The newly inde-
pendent territories in ~frica have generally embarked on a moreIor-less
ambitious programme of "Africanizing" their Public Service; that is,
re~lacine Ëuro~ean or Indian personnel with Africans. The inevitable
efiect of-this prkess ha heen tÔ reduce the standard of efficiencyofthe
service. Reference has been made to this aspect by Sir Patrick Renison,
in the passage quoted in paragraph 46, szipia.In Ïegard to Tanganyika,
Gwendolen &I.Carter says:
"In practice, itseems generally admitted that Afncanization has
affected the efficiency of the Tanganyika civil service, thougli to
what extent remainsa matter of débaie'."

And in the "Report of the Seminar on Urgent Administrative Problems
of African Govemments", submitted to the Economic Commission for
Africa duriny its fifth session held in Leopoldviiie in Fehruary-March
1963,the folÏowingappears:
".. .whilethere maybe difierencesin timing and intensity, the basic
problems with which this paper deals are similar in kind and Afri-
canisation has proceeded rapidly everywhere.

' Chief Davies, H. O.. "TheXew AfricanProfile", iForsif* AflairsJan.1962.
P. 297.
Ghana, Tanganyika, Chad, Guinea, Liberia, Congo Republic (Brazzaville).
Volta. Niger, Senegal.Republic. Burundi. Dahomey. Ivory Coast. filali, Upper
' Houghton. D. H.. "Africa through American Eyes", in Oplimn, Sep. 1963,
p. 112.
' Carter.G. hI. (ed.), African Onc-poStates(1962). p. 463456 SOUTH WEST AFRICA

The product of so rapid and extensive a staff turnover is, then, a
you~ig.inexperienced and largely untrained Civil Service,struggiing
to cope with an ever expanding range of govemmental programmes
through institutional devices and patterns largely unsuited to the
situation '."
Eurther references willbe made to the Africanization of Public Services
in the part of the Couuter-Memorial dealing with Applicants' cornplaints
regarding the general administration of South West Africa. At present,
Respondent merely wishes to emphasize that such a process necessarily
leads to a decline in the ae-eral standard of administration.

50. As a conseauence of the Africanization of the Public Services. arid
the evacuation of'settled White communities, new States frequently mn
into economic difficulties. Keference has been made to this problem in
Kenya Z.
-In an eariier passage out of the article by Sir Patrick Renison than the
onecited in paragraph 46, strpra,it was stated:
"In a population of about eight million, there were, at the peak,
onlv about 65.000 Euro~eans and rather more than double that
iiii~iliçrof i\j;an.;Uut ar; exir;iurdii,:tril). Ixge p;irt of the cionoiiiy
depends iipon tliem, and ifrlicv ï~iidtlit.!ciiniior iiinkc;ilif~.ufit in
;in indei>endeiitKt.ii\.:i.iiut unlv \riIl rlieI)t:ilttic1iiini;innrobleiiis
of exodk for peoplewho have no other home, but it is difficht to see
how the Africanleaders willfindthe revenue to prevent acatastrophic
drop in the whole standard of African living, not to speak of the
abandonment of al1 their dreams and promises of accelerated
development and welfare '."

In the former Belgian Congo,the departure ofEuropeans also exercised
a strong adverse influenceon the economiclifeof the country *.
It will be apparent that the feature referred to in this paragraph
constitutes a vicious circle-the economic depression caused by the
exodus of Europeans in tum results in a further White emigra tion.

U.N. Doc. EJCS. i41180A ,nnex IV, pp. ni-12%
l Vide para.46. supra.
'Renism, op.cil.,p.g.)
' Vide Legum, C.,Africa. A Harzdbook fothe Confinen1 (ig6i).pp. igg-zoo. CHAI'TEK VI1

RESPONDENT'SPOLICLES:POST-WAR ADJUSTMENTS

I. As lias been indicated in the aforegoingexposition, Kespondent did
not set about its task of administering South West Africa with a set of
fixed and unalterable ideas, or with a policy based on an inflexible
political or economic philosophy. The policies and practices adopted and
applied have always been moulded with reference to circumstances as
they existed iii the Territory, and were aimed at finding such methods of

achieving the ideals of the Mandateas might best be suited to circumstan-
ces and conditions in the Territorv. In formina its considered views in
this rvg.,rd. I<cjpoii(lerit\V.E frt.ilii;iitl!. intluïiiëçd by cxpericniç gaiiied
in Soutli :\fricn itself in rcg~rd tu coiiipir~ililc problcriis iiiiipolicics
aimed at tlieir soliition. and alsu bv iri~tru~ti\.c iiidir.ations ahurded bv
e\.etitj. tendciicics ;irid polici~j in oilier p:irts of hfric3. aiid rhe world it
large. l<iit aiiy traii.ilarion ol SIIÇSP~I~I~~IICand indic;itiniis into action
IIISuutIl \V~.jf :\fri~.i ~<.iiirrtSOI C 011^ftlr:hasis of due ~<I:IPI~IIOI 1%)
thc ticeds, iiittr~st~.iii<iiiuiiist.tn;cs uf tl.nt Tcrritur)~.inJ tlic ~iriiiiiplcs
anil obje~tiv~s ui tlie \Iniid;itt:.

2. vents during and after the Second World War in the world at
lar-e, andinother Darts of Africa in narticular. as discussed ahove. have
litid tlicir rcl)crciissii:11.,ori tlicionilitioiis:in<l ~~it~l,lemiiiiSoiitli\\'csi
~\fri~.tttg\rl.ich regard lias bct.11;iiiiis to II,:Iind b!. I<,.ipondent in ilte
fuirnniinii ancl a~vlic:iti~ii ofiiî i~oliiic~.:\iicliust :asc:oluiiinl:inil :Id-
ininistrative poi;Ers have throuihout Africa found adaptations to be
necessary and desirühle in regard to policies and the manner and tempo
of their application, so the need and desirahility of adaptations in Soutli
West Africa have hecome apparent to Respondent. Fundamental

ohjecti\~es, and tried and tested methods of approach, have required no
change. But adaptation has been found desirable particularly in regard
to clearer formtilation of the methods whereby ideals may ultimately be
attained, and in regard to the pace at which furtlier progress totvards
such attainment is to he attemptcd.
3. There are several factors which have paved the way for such adapta-
tions in South West Africa. Though progress in various spheres has heen
relatively slow, for reasons indicated earlier, certain aspects of progress

have hrought the situation as a whole out of the primary and elementary
'stages of the early years of the Mandate to a phase in which hoth the
economy of the Territory and the receptivity of the indigenous peoples
render possible a hastening of the pace of advancemerit.
Perhaps the most important single factor operating in this regard,
however, is tliat of awakened political consciousness oii the part of an
increasing number of members of the Native groups of South West
A~I-ica.It is no longer true, as it was in the pre-\var days, that the Native
peoples of Africa show little or no interest in the processes of central
government of their respective territories, or that they appear to accept
as natural their rule by the White man as far as those processes are

concerned. Iiicreasing numbers of Natives desire participation in such
processes; and experience in other parts of Africa has shown that partici- 45$ SOUTH WEST AFRICA

pation on a minority basis, or as a junior partner, never satisfies national-
istic demands for any length of time '. On the contrary, such expedients
only seem to act as a spur for demands for more and more, faster and
faster, stopping only at complete political domination of the whole
territory by its Afncan population on a basis ofuniversal adult suffrage-
or, as has frequently happened, by a clique of Africans who manage to
secure dictatorial control through exploitation oftheawakenednational-
istic sentiments of the masses.
Tliese, then, are the altered factual circumstances under which Res-
pondent is to continue to promote to the utmost the well-being and
progress of "theinhnbitants", without exception, of the Territory.
4. From what has been set out in the aforegoing, it will readily be
appreciated that the problem of finding suitable adaptation, in conso-
nance witli the ideals and objectives of the Mandate, has not been an
easy one. In making the statement cited above about a "relatively easy"
solution in some parts of Africa2, the South African Prime illinister,
Dr. Verwoerd, added the following:

"Those who find it easv there and do not realize the Ereat -
dificrciiic tcr\vccn tlic t\voiitiintioii~, arc iinfortuiiately tenilitcd to
\iisli tu tr;insplsiitli-tsolutioii 183Suutli ~\fri~o '."
The Prime Minister was contrasting the solution for the particular
territories with a solution for South Africa itself-which. of course.~~- . is not
n matter in isîiiz iiithiscitsï.But in pririiiplea sirnil:ircoiitr:ist is \.alid as
regards Soutli \Vest ;\frica. \vil1I>c:ipp:irent from the abovc exposition
of circurnstanccs aiid cniiditioiis iiit~ ~-'~'-~~itorv. the diifcrcncc; aiid iela-
tions between its groups, and the 'histori development of
present situations.
If, without preconceived ideas about any policy, slogan, creed, dogma
orphilosophy, asolutionissought for tlie specific problem of South West
Africa, what answers present tliemselves? Are the aims to be set at
self-determination for the peoples of the Territory as a first priority,
regardless of real ability on the part of some of them to "stand by them-
selves under the strenuous conditions of the modem world"? * If so,
would that not involve abandonment of one of the basic premises and
objectives of the mandate system? Could self-determination, in any
just and equitable sense, be obtained by the expedient of artificially
regarding the peoples of South West Africa as a unit, the majority of
which must determine the future of the whole Territory and al1its in-
habitants? Would that not in fact mean that "self-determination" by
some groups could involve a total negation of self-determination for
others? \mat moral justification could there be for the Ovambo people,
by virtue of their superiority of niimbers, to be able to determine the'
futureof the Nama, living in a part of the country which the Ovambo
had never occupied or attempted to occupy, and to which they had
never laid claim-r the future of the Ca~rivi ~eo~leswho. bv a mere
accident of history, over which they co;ld n6t e'xercisetheAslightest
control, had been artificially severed from their kinsfolk in surrounding

' Vide. e.6.para. 22. infra.
Vide Chap. VI, para. 35.supra.
Address to the South Africa Club, I~ndon, in Facl Paper gr. Apr. 1961, p.12.
. ' Art.22 (1)of the Covenant of the League of Nations. COUNTER-MEMOR OIFLSOUTH AFRICA
459

areas and made an appendage of a territory of which their area did not
even geographicaily form part? Must the past and present contributions
of the White population group in regard to economic and other develop-
ment of the Territory, under circumstances where their presence for such
purposes aras necessary and encouraged, count for nothing in a form of
"self-determination" which could flood their wishes and interests in a
sea ofAfricannationalism? Rlustthe sacred trust, the protection ofwhich
will still be needed for a considerable time to come by the most primitive
groups like the Uushmen, the Himba andthe Tjimba, be abandoned and
with, at best, an uncertain outcome?at would amount to an experiment

should suffice. They illustrate how extremely complicated the probleme

inappropriate the type of solutions found suitahle in respect of other
African territories.

5. In seeking a just and practicable solution, Respondent considers
itself bound in honour, if not in law, to observe the principles and
approach of the mandate system in terms of which it assumed a sacred
trust in respect of the "peoples" 'of South West Africa. As has been
observed above. the emphasis under that system fell very strongly, in
practice as well as in theory, on the advancement of peoples to a stage
where they could indeed "stand by themselvesU-economically, edu- .
cationally and socially as well as politically-as a pre-requisite to a
mature political act of self-determination 2.The General Assembly of the
United Nations, in December 1946,relied heavily on the political aspect
of tliis approach in rejecting the proposal made at the time by Respon-
dent in regard to possible incorporation ofSouth West Africa in the Union
of South Africa. It will be recalled that consultation of the Native erouDs
had resulted in an overwhelming majority in favour of incorpor~ion",
and that the resolution adopted by the General Assembly contained the
following paragraph relative to this aspect:
"Consideringthat the African inhabitants of South West Africa
have not yet secured political autonomy or reached a stage of poli-
tical development enabling them to express a considered opinion
which the Assemblycouldrecognizeonsuchanimportant question as
incorporation of their territory 4."
6. Moreover, Respondent is as mindful as any other State of the
objectives regarding underdeveloped peoples as set out in the Charter
of the United Nations-in contrast to interpretations and applications
latersought to be given to the Charter by some States for the purposes of
an emotional "anti-colonialism" campaign. Respondent has already
drawn attention to certain aspects of the undermentioned provisions of
the Charter 5, and would again like to stress the following in regard to
them:
Avticle 73a. whereby members administering non-self-governing terri-

' Art.22 (1)of the Covenant ofthe Leagueof Nations.
' Vide Book II, Chap..II.para. 43. of this Counter-Mernorial.
' 1...a..
' VideChap. II, para. 23.supra,460 SOUTH WEST AERICA

tories undertake to ensure the political, economic, social and edu-
cational advancement of the peoples concerned, their just treatment
and their protection against abuses, is qualified by the vïords ". . .with
due respectfor the culture of the peoples concerned".(Italics added.)
Article 73b. settingout the undertakings "to developself-government, to
take due account of the political aspirations of the peoples,andtoassist
thern in the progressive development of tlieir freepolitical institutions",
qualifies al1 this by the words ". . .accordingto theparticzclarcircum-
stances of each territory and ils peoples and theiv varyi?zgstages of
advancement". (Italics added.) The concept "peoples" (plural) of
"each territory" (singular) is of special interest.
Article 766, setting out some of the basic objectives of the trusteeship
system as heing "to promote the political, economic, social and
educationaladvancement of the inhabitants of the trust territories and
their progressive developrnent towards self-government or inde-
pendence", proceeds to state the qualification ". . . as may be appro-
pviate to thepnrticular circumslaizcesof eachterritoryand its eoplesami
thefveelyexpressedwishesof th6peoplesconcertted. . .". (Ita ics added.)
Again the expression "eacli territory and its peoples" is specially
notable.

7. Due application of thc above principles and objectives to the
~roblems posed bv the circumstances of South West Africa. has led
esp ponden totshape its policies in such a manner as to make provision,
as far as practicahle, for each of the maior ethnic moups to achieve an
increasing measure of self-government- and to dëvel6p towards self-
determination in a political and territorial entity of its own. Only thus, in
Respondent's view, ancl through reasonable subsequent co-operation
between the entities, especially in the economic sphere, canself-determi-
nation, "the freely expressed wishes of the peoples concerncd" and
"development to the utmost" become meaningful realities "according
varying stages of advancement".s of [the] territory and its peoples and their

8. The policy (oraggregate of detailed aspects of practices and policies)
designed to promote the objectives set out in the previous paragraph,
can for convenience be cailed by the descriptive name of separate
development. This is the name also employed for a similar. though not
identical. policy approach to sirnilar problems in the Republic of South
.4frica itself regarding future relationships between a multiplicity of
population groups. Alternative descriptive expressions that have been
cmployed are "Hannonious Multi-Community Development" ', and
"Live and Let Live" 2.
Respondent, for reasons to be indicated, prefers not to ilse the name
"apartheid" employed hy Applicants in their Memorials ? "Apartheid"
isa coiiied word, the equivalent of which in English would be "separate-

' Dr. Eiselen, W. \V.M., "Harrnonious Xlulti-Cornrnunity Development". in
Optima, Mar. 1959.p.1.Dr.Eiselen was at that tirne Secretary for Bantu Adminis-
tration andDevelopment.
Address by the Southfrican Prime Minister, Dr. H. F. Verwoerd, in his address
toVI. pp. 108-109:para.blog,p. 138:para 154 (3)pg..151:para. 158,p.153;and
para. i89,p.161. COUSTER-~~IE~IORIAL OF SOUTH AFRICA 461

ness", Le., the state of being separate or apart. By its protagonists in
South African politics, the word was used as a name for what may be
termed an earlier stage of evolution ofthe policy of separate development,
in order to distinguish that stage from a yct earlier one generally called
"segregation". Thus the late Dr. D. F. Malan, in 1944a ,s Leader of the
Opposition-four years before becorning Prime Minister of the Uiiion-
stated the foilowing in the House of Assembly in regard to the approach
to race relationships which he was advocating:

"1 am ~~urpojelynot ujing tlic word 'ri\greg:~rion'bccausé t1i;it
iiiiplics2 c,:rtniii :iriiuiinrof <lctacliine'i. . .Scp.îr.rrii,ii(;ipnrtti~id)
aifurdi th~.oni>vrtiiiiit\.ri1tlio-e \vlio. . >t;~ii<$,rrlicirowii fetct. ..
to improve ihemseivei bnJthe foundation of what is their [own] 2."
In course of time. however. the word "a~artheid" came to be verv much
morc al>iiicd;.nil \,iliiicdby pijlitiul upponcnts aiid critics, at ticnie ;iiid
al>roncl.of po;t-iiJ+? Soiitti :\fric;tii gi,\.eriiment;. thaii ";cgrt~g;itioii"Iiad
wer bccii. \Vhat is irnl>ort.îiitfur Drcient Durnoses. iitlie confusiuri rliat
has been engendered tkrough the Ûseof théwÔrdin a variety of different
connotations. It came to mean whatever particular facet of policy,
practice or action, real or imaginary, the critic in question might have
had in mind. Through factors of causatioii which are themselves a
subject of coiitroversy iripolitics, and which need iiot no*. be considered,
"apartheid" came to beregarded widely as synonymous with or indicative
of some form or other of racial oppression-which, as indicated ûbove,

was the very opposite of what was sought to be conveyed thereby by
Dr. Malanrslien he first began to use the word. It \vas also the very oppo-
site of the objectives for which the policy under that name was in fact
conceived, as will be demonstrated.
In the iight of the aforestated, it is significant that Applicants
themselves have considered it iiecessary to give their own definition of
what they seek to convey by the word "apartheid" 3. Respondent will
deal specificaiiy with the accusations and charges involved in that
definition and in the elaboration thereof in Applicants' more detailed
allegations. But in order to stay clear of the sphere of confusion and
controversv mentioned above. which is in anv event not in issue in this
case, Respondent willin itsowi account as fa& possible avoid the use of
the word "apartheid".
9. Respondent does not propose to attempt anything approaching a
full or detailed exposition or even sketch of the derelopnient, coritents
and implications of policies relating to group relationships in South
Africa itself, as would be necessary if those policiesthemselves had been,
on some legal basis or otlier, a matter for judicial pronouncement. Neve~-
theless, in vierv of a certain measnre of inter-action between policies?n
South Africa and South West Africa. of the natue and~ ~t~in the limrts
that have been indicated above', akdwith a view to illustration, some
brief reference is necessary to certain specificaspects of poiicies in South
Africa.

' The Afrikaan wsord used by Dr. Malan waç n/hohhing. which connotes separa-
tion into"cages", Le., intoenclosed or sealed-off "nits.
W. ofS.A.. Pnrl. Drb.. House of Assembly, Vol. qg (1944) Col. 6695.
' Vide 1,Chap. V, para.2, pp. 108-rog, md Chap. V. para.189, p.161.
' Vide para. I.supra.462 SOUTH WEST AFRICA

IO. Historically, as from about the seventeenth century, Europeans
and Native or Bantu groups converged in relatively small numbers on
what was then a iiearly empty part of the African Continent-the part

which later became the Union and eventually the Republic of South
Africa, together with the British Protectorates of Basutoland, Swaziland
and Bechuanaland. The Europeaus came from the south and the Bantu
from the nortb, and on the wliole the teiidency was for each to settle in
separate and distinct parts of the country, the various Uantu groups
inter se.with few exceptions, also keepine aoart from one another. There
were ciaslies and frôntier adjustm&t<in border areas, but, as was
stated by Dr. Verwoerd in his above-mentioned London address in 1960:
"The White man &d not use power to overrun and acquire
black man's country. In fact .. . the \=te man deliberately
reserved it for him and endeavoured (mostly in vain) to train him
to make the best use ofit. as he did with his own,and to such good
purpose tlirtthe bl~ck man caiiii: IO tiiin for ~mployiiieiit, fuorIÏnii~l
the good ihiiigs uf Iife.aiid nut for politiçnl ionquesti '."

II. It was on the basis of this historical background that, after the
formation of Union, the policy generally known as segregation, and
referred to by General Smuts in his 1917address in London 2,was sought
to be founded and promoted, with the expectation, as General Smuts
said, that "it niay take a hundred years to work out" 2.A fundamentally
important step in this direction was the passing by Parliament of the
Natives Land Act, 1913 in terms of which certain areas were set aside
and scheduled as Native Reserves. The areas initially thus affected were
progressively added to in later stages, pursuant to recommendations by
Commissions of Enquiry 'and eventually in terms of the Xative Tmst
and Land Act. 1936 mainly through purchases by means of public funds
of land osvned bv Euro~eans. Forms of self~ - - ~--nt-in such Native
arras \ver<:provideJ for aiid eiicourngr~l.but subleit to "'l'ticpxrainount
pniitioii of the ISuropeanpopiilatioii t~is-Ù-:ithe native . . .in n spint of
Christian guardianship" 6: *

12. The stage of development to be kiiown as "apartheid" was born
of the view Iicld by leaders of Dr. Malan's Xational Party, during and
immediately after the Second World War, that the existing policy of
segregatiori had undue limitations as a means of reconciling the natural
derelopment potential and national aspirations of the Bantu with the
equally natural desire of the White opulation group to preserve its
ideutity and way of life. Horizons for tKeBantu were, iii the earlier views
of the situation, considerably limited-a factor becoming of increased
importance with advancement in Bantu education and with accelerated
influx of Bantu to European areas forpurposes ofemploymerit in industry
and other phases of the white man's economy. So, e.g., uuder the
segregation policy, General Hertzog had indicated that in his view the

Address to the South Africa Club. London. in Fad Pab.. gr.Ap-. 1960, P. 10.
Vide Chap. IV, para. 36, supra.
' Act No. 27 of 1913 in Statules of the Union ofSouth Africa 1913, pp. 436-448.
' Seame. L. E.. Whito Mon's Africa (1952), p. 38.
Act Xo. 7.3of ,936 in Statutes of the Union of South Africa 1936. pp. 90-142,
Basiç of policy adopted in 1915by the Xational Party of General Hertzog, iuh0
was to become l'rime Minister from ,924 to ~.de Firow. O., James Barry
Muiwiik Herlrog. p. 198. COUNTER-MEMORIAL OF SOUTH AFRICA 463

Native areas would "never become the independent or semi-independent
Native States which certainnatives sometimesrefer to" '.In the economic
sphere Natives who had attained educational standards above the
average, were often frustrated in that the somewhat static economies in
the reserves offered no scope for them. whereas in the White man's
econoni\. :i\.~iiii\\.<oclo:t,<ltliroii:.h rcïirions Iwrii uf Iii;iurical si>ci.,l
Jiatiiictioii-c.~., un~~illingi~c~of 11iro~~~~.,ti1.si.rvc un.lcr .LSar~vc
employment and in thefor utilization of professional or artisan services-as
well as by reason of understandable inability of such Natives to succeed
on their merits in operi competition with Europeans. The National Party
leaders saw in this situation an unfair curb on the reasonable aspirations
of the Natives, and a threat of growing dernands for increased participa-
tion in political and governmental institutions on an integrated hasis with
the White population, leading eventually to political and attendant
dominationof the whole country by the Natives by reason of superionty
of numbers.

13. It is against the above background that the significance will be
Malan's National Party ining e1947, i.e.. shortly before the election which
bronght that party into officein 1948:

"It [apartheid] is a policy which sets itself the task of preserving
and safeguarding the racial identity of the White population of the
country, of likewisepreserving and safeguarding the identity of the
indigenous peoples as separate racial groups, with opportunities to
developintoself-governingnational zcnits,of fostering the inculcation
of national consciousness, self-esteem and mutual regard among the
various races of the country.
that of integration, whichowould in the long run amount to nationalr
suicide on the part of the Whites: or that of apartheid, which
professes to preserve the identity and safeguard the future of every
race, zwithcompletescopefor eneryotleto developwithin its ownsphere
mhile maintainin: ils distinctive n~tional character,in such a way
that there will be no encroachmenton therightsof others.and without
a sense of being frustrated by the existence and development of
others." (Italics added.)

Furth,', under the heading "General Guiding Principles",
. ..the party undertakes to combat any poiicy,doctrine or attempt
calculated to undermine or endanger the continued existenceof the
White race. Conversely, however, the party rejects any policy of
oppressioizor exploitationof the non-Whites by the Whites as incom-
patible with the Christian character of our people and therefore un-
acceptable." (Italicsaddcd.)
"Within their own areas the non-White communities will he
afforded full opportunity to develop, implying the establishment of
their own institutions and social services, which will enable pro-
gressive non-Whites to take an active part in the development of
their own peoples. The policy of our country should envisagelotal

Die Burger,q Dec. 1925.pp. 7 and8464 SOUTH WEST AFRICA

apartheid as the lrltimategoal O/a ?tatzcralprocess of separate deuelop-
ment '." (1talics added.)
It is of interest ta note, also, that in 1948General Smuts' United Party
declared that it \vas "not in favour of a policy ofequality orassimilation",
but stood for "European leadership and authority and reaffirms the
principle of Christian trusteeship towards the Native peoplesas a perma-
nent part of the population" 2.
14. In view of the two-fold aspect of the policy approach indicated in
the ahove extracts from the National Party declaation, viz., the preser-
vation of the ideiitity of the White population group, and the provision
of greater scope, in separate communities, for the development of the
non-\\'hite veonles. it will be readilv understood that in ~articular ex-
positions bi phitical leaders, and in particular legislativé ineasures or
administrativeaction. the accent would sometimes fa11to a meater extent
on the one aspect, and sometimes to a greater on the other. It mut,
moreover, he borne in mind that the policy was one of transition from
geiieral acceptance of the idea of White supremacy as an indefinite pro-

jection into the future, ta acceptanceof thefact that thisideahadoutlived
its acceptability, and must yield to apolicy which provides for eventual
achievement ofnational asvirations on theDart ofthe Bantu veo~les.
It may be that the factors just meniioned contributêd iR part-
together with wvrongfactnal assumptions, emotionalism and rank distor-
tions-to misconce~tions ofthenature that have been mentionedahove ',
whereby "aParthei'dw was not only uiiderstood in different seiises, hut
associated with racial oppression. Thus in 1950, Dr. Verwoerd, at that
time hlinister of Xative Affairs, had occasion ta say the followvingin an
address to the Xative liepresentative Council:
"Tlic supporters of the preient Go\.ernineiit s<iy ver). ilcarly . .
thdt thcy \\,IInot bc prt:p.îrcrltu s;<crihcéivliite supreniaiy in South
.Alriza. I3ut ivlicnive do sa\. rhat. WC :ils0 sa\. soinetliin~ clse \vllic11
is always left oiit when people talk about tLs policy. This is what
usesay :
Just as ae want that supremacy in our areas, so we are prepared to
gant the same supremacy to the Rantu in his area. We don't want
for oiirselves what wearenot prepared to cede to others ...'"

15. On the whole, however, while there was acknowledgeinent in prin-
ciple of full opportunity for the Bantu ta develop into self-governing
national units 5,and of their right to supremacy iii their own areas 6,
there \vas in the earlier post-1948 years no official announcement, as
a matter of practical politics, of complete political independence of
Bantu homelands ,u an attainable ultimate stage of development.
The general formulations of lmlicy and rinciple were wide enough
to include the possibility of such an end resug, and there can be no doubt
about its being contemplated by the National Party leaders as logically
inherent in the policy they were advocating. But explicit formiilation

' Krüger. D. W., South African Partiesand Policies rqro-1960(~960) .p.402-403.
Vbid.. p. 408.
Vidcpara. 8,supra.
* Grobler. J. H., Africa's Dediny (1958).p.89.
' Videpara. 13. supra.
Vide para. 14. rupra. COUNTER-IiIEMOR IF LSOUTH AFRICA 465

and public announcement at first remained in abeyance, for various
reasons. These concerned mainlv the need to ~roceed, in the matter of
~ractical a~..ication. bv ,r.mei,,on. ~. accor~ ~ ~ with the fmition of
prcpsrltury stepjpaviii,: th,: \\,a). for edcli sii~ccsjivestage. I\ factor of
particular iiiiplrtancc tu bc kcpt iiimind iv.u tliclzv,:Iof ad\.anceinent.
receptivity, nediri~;j tuco-op5r.itr.and psychological approach gznernlly
de\~elopineritati;iinzdcniiilrhcie rcsuccts. could Iiai~ wrecked the wholz of
projecc. or could at least haveset t6e clock back considerably.

16. As early as 1950 Dr. Eiselen ' outlined certain of the steps that
wererequired to betaken in the promotion ofa plicy ofseparate develop-
ment, writing in that regard, inter alia as follows:
"Se~aration as definedabove rewesents an aim which cannot be
achic\;ecl \\.itliour;i coiistr~i~tive'pl~, a plicy riiiiking people
ready fursi:parntiuii. I'rt-yaringiiiillioii;of pcuple foran in<l~:pendciit
fvrm of life is :rtr~iii~:iirlou;t;i.;k. \i.Iiiclire~iuirrs carcfiil ~laiiiiiiiri
and thereafter working to a cons&uctive of pÙrposefd
action 2."
As examples of the constructive steps to be taken, the author men-
tioned firstly the building-up of "self-supporting native communities in
certain carefully chose11areas", whereby a desire ivould be created
"among the natives in general forsimilar opprtunitiesof self-realisation",
and, secondly, adjustment of its economy by the European community
with a view to functioning with a progressively decreasing supply of
"cheap labour". He proceeded:
,... the success of the policy of separation wiil be determined, on
the one hand, by the willingness of the European to guide and to
assist the natives during the initial stages.and,on the other hand,
no less on the ability of the natives themselves to profit by such
guidance and help. Separation, therefore, depends on const~ctive
education, a process much more comprehensive than the Iiterary
training offered in our native schools to a minority of childreii of
school-going age. Such education cannot be given overnight, more
particularly asthe teaching personnel too will have to adapt itself
to the newrequirements 3."
17. Successive stages of preparation 4, were duly reached, as will be
briefly indicated later in this Chapter 5.And thus the stage was set for
Dr. Verwoerd, as Prime Rfinister in 1955).in an historic address to the
House of Assembly, to aunounce unequivocally the practical acceptance
of the logical conclusion, viz., independence for separate Bantu States
as an attainable end result. The Prime Minister, inter alia, stated ex-
plicitly:
"Indeed we regard the temtorial authorities . .. lin the Bantu
arexs: xs i>,i1qtv>lij;.t,dies in th~ /;YS!stop O/ dettlopniflit. Tliere!nre
anuiiiber ofunpopul:trcoiitrol methods\r,hich the yanlian zsercises

* Eiselen. Ur. W. DI."14 Separation Praeticahle?". in Journal of Racial Affoirs,
Jan.1950, p.'3.
' Ibid., pp.13-14,
' More or less in accordance with those foreshvdowed by Dr. Eiselen.
' Vide paras. 36 and 41-49, infra. COUNTER-MEMORIALOP SOUTHAFRICA 467

Failing such balancing and abatement, the situation arises of an
emancipated people goveming not only itself but other peoples as weli.
Aswas stated in 1960by SirCharles Arden-Clarke, expenenced Adminis-
trator in Africa andlast Governor-General of the Gold Coast:
"The question in East and Central Africa is not really one of
Afriçan.iiovcriiiiig tlieriiî~lvesitis uiieof .\fricans goveriiiiÏgpcople
01orhcr r.iics. If th<),niisgovcrri hadj., tIic),ii.1injure iioc0111)t.he
Europcans aiid :\sians but theiiisel\*cs '."

20. The objectsand aims O/the9olicy are in princifilethesame as those
firofessedfor suggested attem9ts at bringing about an integrated,multi-
racial State, as will be obvious from the previous two paragraphs. But
the methods employed are diametrically opposed, because of the belief
that attempts at a multi-racial community cannot, in the African context,
succeed inachieving the objectives ofjustice, equality and freedom for all.
It is therefore not truc, as isoften represented, that in its moral outlook
and idealistic objectives the poiicy of separate development runs counter
to modern conceptions of human rights, dignities and freedoms, irrespec-
tive of race, colour or creed. On the contrary, these very conceptions
underlie thepolicy, andits objcctivesare toachieve an end result obviating
alldomination of groups by one another. The difference between pro-
tagonists of this policy and their sincere opponents (i.e.. excluding those
motivated by ulterior considerations) concern only questions of meaiis:
which of the two methods, attempted integration or separate develop-
ment, is calculated better to achieve the common ideal?
The followingare some extracts, relevant to tliis topic, from an address
by the Prime Minister to the House of Assembly of the South African
Parliament on 23 January 1962:
". . . either it is not realized that there are two ways. not one, of
applying the principles on the basis of ivhichone can satisfymoral
arguments, or that fact is deiiberately shut out of their thoughts.
The one is by way of a multi-racial state and the other by way of
separatiori, that is to Say, where thcre is a separatioii within States
or amongst communities. Let me illustrate that with an exariiple.
There is the franchise principle or even that one form of it, namely
'one man, one vote'. You can have the franchise on the bais of 'one
man, one vote' in a multi-racial state but you can also have voting
riehts for each mou0 even on the basis of 'oneman. one vote' where
aieParation isVbroLghtabout in the political lifeof those groups.
It is possible therefore to give effect in two ways to the principle
on which people rely so much, namely, the principle of human
dignity, of the right to vote. The difficulty isthis: There are people.. .
who advocate one method, a multi-racial state, and there are others
who advocate the path of separation as the method to comply with
al1those loftypnnciples. That is the issue about which thestrugglejs
being waged. The problem therefore is how to give political rights in
South Africa on a sound bais and in a way which is fairand suited

to each group 2."

' Arden-Clarke, C., "The Changing rote of \\'hite leadership in tropical Africa",
inOPfima, Uec. 1960. p. 181.
R. of SA. Pari.Deb., Hous ofAssembly. 19 Jan. to 26 Jan. ,962 (\Veekly
edition), Col69.465 SOUTH WEST AERICA

In the cours of rncn~ioiiiiigail\.aiitages of a policy of crcating szpardte
statci. Ur. \',:r\vocrd irated:

".. .it could offer an opportunity of developing equalities amongst
the groups. It could satisfy the desire for the recognition of human
dignity. Because just aç it is possible for us to live with the Black
states on a basis of equalityasseparate states, to negotiate with each
possible here if separation could be put into effecti'".ould also be

And further:
".. .the creation of states has brought with it contentment, not
only in the present age but right throughout history. In wliat way
hassatisfaction been given in Africa, notably in our time? Africa has
been given satisfaction through the creation of states, and where
there is conflict that is asa result of the fact that these new states
are not states which embrace national entities but which have state
boundaries cutting right across national entities. There they have
trouble. Difficulties arise where the founders try to throw together
in one state more than one national community. Whenever account
has been taken of national entities when creating new states,
contentment has been the result '."
Reverting to South Africa he stated:
"It is as uniikely that it will be possible to hold together the
Whites and the Bantu in peace and free of strife in one multi-racial
unit as it is to do so in the case of Black nations in other parts of
Africa or as it is to thow together Xhosa, Basuto and Zulu without
conflict into one communal entity. They too are just as proud of
their own national identity as we as Whites are of our national
identity ...
Any attempt to force different communities into one national
entity will never succeed. Su~~ression will be possible but never
?-operation betive~nscpr~ie.&oiips \\,ho deiire Ïo reiiiain separatc.
I'heWhite mail thc Co1uurr.d.~iidtlic Tndian wn oiily he pulied out
or ;ibwrbcd. lust as littIras 11is ~ojjihle in Tanrdn\.ika. from whicli
more was exiccted, just as littfe as it is possi.bleuinKenya, from
which less is expected, and just as iittle as it is possible in the
Federation where fear and anxiety are gripping the hearts of the
people because they realizewhich way things areheading, solittle wiil
it be possible in South Africa to get the groups to live separately and
to CO-operateon a bais which will be fair in a multi-racial state. In
other words, it is only the policy of nation building, the policy of
good neighbourliness which can hold out any hope that one will be
able to eliminate racial hatred which cannot be eliminated in an
enforcedmulti-racial state 2."
21. The basic viewthat it willnot in practice be possible for Europeans
and Africans to govem a common homeland jointly, in a manner which
is fair and satisfactorv to both. is one that is steadilv and continually
gaining support, not only in the form of comment bj- students of the
prohlem,-but also by proof through actual, current events.

edition), Col71.ri. Deb., Houre of Asscmbly,rg Jan. to 26 Jan. 1962 (Weekly
Ibid., Col72. COUNTER-MEMORIAL OF SOUTH AFRlCA 469

The realization is breaking through that the protagonists of multi-
racialism can point to no single instance where their idea has in practice
succeeded, or is even showing signs of success, in cases where the popu-
lation erouDs in ouestion differ so -reatlv as is the case with Euroneans
and frica a~natibes.
Thus H. V. Hodson, a former editor of TheSunday Times, London ',
wrote in Deceinber 1962 of "the problem ... [in Africa] ... of finding a
way in which people of different races could live and work together
under political independence", stating that "This latter problem is the
greatunresolvedconundrumof Africa. Let rrsadmit thatwithal1our efforts
and theoriesno acce$tablesolution hasbeenfonnd 2."(Italicsadded.)
W. van Heerden, an accomplished South African newspaper editor and
student of African Affairs, wrote in June 1962:
"Race cousciousness, race antagonism and race ambitions are
everywhere blasting to futility the efforts in different territories to
generate bi-racial or multi-racial nationhoods. In notasingleAfrican
territorycan one,up 10 nom,discerneuenthebeginninfsof success3."
(Itaiics added.)
In a11article entitled "Black and White Reaiity" in the SundayTele-
graphof 19 May 1963, Peregrine Worsthome wrote, interalia:
"The latest evidence in Alabama ofhow deep. cmel and passionate
racial feelings remain, coupled with the recent tragic coUapse of
Britain's multi-racial experiment in Central Africa, surely raises a
grim question which must he burked no longer. 1s it reasonable or
realistic for men of good will to go on assuming that blacks and
whites, at least inthe crucial continentsof AfricaandNortli America,
are ever going to live amicnhly sidc by side in genuinely multi-racial
societies?
Myanswer isemphatically 'no'.Wliite men in predominantly black
societies are almost certainly going to becomeunder-privileged and
black men in white countries are going to remainso. . . .
It is surely quite unrealistic to imagine that existing white
minorities in Kenya or the Rhodesias, or anywhites who in future
may be tempted, either for reasons of gain or ideaiism, togo andlive
in the black States, will receive equal treatment ...'"
The article concluded by suggesting-
". . . that a whole host of new ide= might emerge. enormously
beneficial to both races, if men of good will henceforth took reality
as their point of departure, and worked forward from there, rather
than setting their eyes blindly but firmly on a multi-racial goal that
each year recedes ever faster into therealm of tragic illusion4''.
22. Actual events in Africa more tlian bear out the above comments,
and also the following, earlier statement on the same topic by Dr.
Verwoerd in his 1961 London speech. Referring to cases of territories

1 Now Provost of the Ditchley Foundation, an institution airnedatthe furthenng
of understanding hetween the British and Amencan peoples.
Hodson, H. V., "Where Amenca and Britain Agree and Disagree about Africa",
in Optima,Dec. 1962,p.173.
' \Vorsthorne, P.. "Black and \Vhite Reality". in the SundnyTelcgvaph, rghlay
1963. SOUTH WEST AFRICA
470

elsewhere in Africa where White communities of substantial numbers
had become settled, he stated, intevalia:
"In the first planning it was accepted that their rights should be
fullyprotected and the idea of partnership was born. This partner-
ship was, for a long time to come, actually intended to be junior
partnership for the Blacks and the continued control as senior
partner by the Whites. Warnings made no impression on the rulers
overseas that this theorv would not work out that wav. with the

incvir~ble rt-siilt tlit th; hl~k indjoritics suuii dernandd. liid nrç
qui~kly recci\,iiig. rlic righttu n~liar;inioiirits tu 111cuiitrol \vitlitlic
\r.liitriiiuinuit!c<loui uf ~~uliii~1j0a11iiiiriitj :ind*.luroojes '."
The trend of events in this reeardL,n the Coneo. Ken<,. Tanea,vika -.
2nd S\nsillnnJ JIC roo \vcll kno\vn io reiluirc re~ouiitiiig 2.
t->i.ili:[lsis onl\. rérii.iininiriniiniiie un tlie ioiitiiuf:.Airic.twlierc a
real att&mpt is stdl being màde at the creation of a genuine multi-racial
community on a basis of partnership between White and Black, is
Soutbern Rhodesia. As wiii appear from Annex B below 3,the present
constitution and franchise arrangements are such as wiUprobably result
in a majority of the members of the Legislative Assembly being White for
some time to come. But the façt is well known, and has been much
emphasized, that this process is likely to be reversed in favour of an
African majority in about 15years'time-i.e., ifthe present arrangements
continue in force. There is overwhelminrc evidence. however. that this
arrangement does not satisfy any Africannational leader, whether in or

outside Southem Rhodesia.
Thus Mr. Joshua Nkomo, a leader of the Zimbabwe African Peoples
Union (ZAPU), a major African political party in Southern Rhodesia,
told a Committee of the United Nations in the first half of 1q63that-
"The Africans of Southern Rhodesia didnot recogniie the Govern-
ment . .. which had come to power under a Constitution which they
had rejected without reservation 4."
On another occasion he said:

". . . aii ZAPU branches in Northern Rhodesia, Nyasaland and other
countries will he consolidated 'to carry on the struggle we are
fighting to run the country, and anything short of that is un-
acceptable' 5".
Already in June 1962 the General Assembly of the United Nations
had passed a resolution (supported by al1 African Members) reading,
inter alia, as follows:
"The GeneralAssembly, ...
Considering tliat the vast majority of the people of Southem
Rhodesia have rejected the Constitution of 6December 1961,

Deploving the denial of equal political rights and liberties to the
vast majority of the people of Southem Rhodesia,
Noting withregretthat the Government of the UnitedKingdom of

'Address to SouthXfrica Club. London, in Fncl Pape* gr, Apr. 1961,p. 13.
Videin general, Chap. VI, paras.44-47 and 50,supra, and Annex B. paras. IO.
23 anVida7Annex B, para. 2, infra.
' U.N. Doc. A15446. Add. 3,para. 40, p.12.
TheStar, 22 Sep. 1962. COUNTER-MEXORIAL OF SOUTH AFRICA 47I

Great Britain and Northern Ireland has not yet taken steps to trans-
fer dl powers to the people of Southern Rhodesia, as required under
paragraph 5 of resolution 1514(XV),
. . . . . . . . . . . . . . . . . . . . . . . . . . .

2. Reqrceststhe Administering Authority :
(6) To undertake urgently the convening of a constitutional
conference.in which thereshall befullparticipation of representatives
of al1political parties, for the purpose of formulating a constitution
for Southern 12liodesia,in place of the Constitution of 6 December
1961,whichwouldensuretherightsofthemajority ofthepeople,on the
basis of 'oneman, onevote',in confonnity with the principles of the
Charter of the United Nations and the Declaration on the granting
of independence to colonial countries and peoples, embodied in
General Assemblyresolution 1514(XV) ;1." (Italics added.)
On 5 4ugust 1963 the Govemments of Ghana, Guinea, hlorocco and
the United Arab Re~ublic submitted a letter and memorandum to the
Security Council alieging that the continuance of the constitutional
position in Southern Khoàesia "is likely to endanger the maintenance
of intemational peace and security"Z.
23. The policy of separate deuelopmentas not based on a concept of
supeviority or inferiority, but merely on the factO/ people being different.
This factor emerges clearly from those that have been discussed in
the preceding paragraphs. The point has been made explicitly, e.g., by
Dr. Verwoerd in his 1961London speech as foiiows: ".. . the Govem-
ment'spolicy isnot based onpeopleheinginferior but beingdifferent. . .3"
Addressing the House of Assembly in the South African Parliament in
June 1961.hfr. M. 1). C. de \Vet Nel, Minister of Bantu Administration
and Development, stated as follows:
"The traditional approach has always been a policy of recognizing
the equal status . . . of the Bantu, a policy of differentiatio... but
differentiation without inferiority . . .This is my approach to this
problem of the Bantu, and it is the basis of the approach of the
,eo,leof South Africa . . . What is the 'ea.alitv' of manv of these
pcol>lcwlioari\~oiarc+i,-c;illi~dequîlity?His 'r.quil~t!.'isthérvti:iition
of what is Iiiîo\iJnand rlie coiid~:mnarionof what is iicciiliar to the
other man. He comes to the Bantu and he says: '~ook,we are eqnal
languageremeans nothing to me; we are so equal that yon have no
culture. only my culture counts. \Ve are so equal that \ve mnst pray
together in the same church but not in your church; it is an inferior
church. we must worship togetber in my church', .. . Our attitude
is that there are differences . .. but these are differenceswhich are
not accompanied by inferiority '."
24. The policy of separate deuelopmentis constructive,not destructive.
This factor will also he abundantly apparent from what ha been set

V.N. Doc..S/5382. p.1.s.Supp. No. 17 A (A/groo Add. 1).p.3.
Addressto South Afriea Club, London,in Facl Paper 91. Apr. 1961p.8.
' R. of S.A. Porl. Deb.Housc of Assedly. 12June to 16 June 196,(Weekig
editionC)o.ls.994and7998.472 SOUTH \VEST AFRICA

out in the preceding paragraphs. Dr. Verwoerd, in his 1959address to
the Assembly of the Union Parliament, referred to above ',stated as
follows in this regard:

"It is on that point which 1wish to place authe emphasis: That
our stmggle is not in the first place destructive, but constructive.
Wewant to build up a South Africa in which the Bantu and the White
man can live next to one another as good neighhours and not as
people who are continuaily quarrelling over supremacy 2."
25. Having regard to the specific problem of the future of South
West Africa and its peoples, as outlined earlier in this Chapter, Respon-
dent can by way of solution see no alternative to an approach involving
similar objectives and principles to those of the South African policy of
separate development, in the respects set out in the preceding para-
graphs. Respondent emphasizes in this regard that the approach
regarding objectives and principles is the important matter-in regard
to detailed policies, measures and practices designed to acliieve the
objectives and to iinplemeiit the principles, there must always be a
necessary adaptation to the peculiar circumstances of the Territory and
the specificprinciples of the Mandate. The aforegoingreference to policies
in SouthAfricaistherefore to be regarded as being merely for purposes of
illustration, and not as a matter for adjudication per se. By way of
recapitulation, brief furtber reference only is required to the question of
possible alternatives, as in the next succeeding paragraphs.
26. One method of approacliing the problem may be to abandon al1
sense of moral responsibility towards minority groups, in favour of the
Africaii nationalistic ideal of eovernment of the whole territorv bv
African Xatives as representa6ves of the inajority of an integ;atd
electorate-which govemment could well, sooner or later, become a
dictatorial clique.
The minority groups which \\.ould thus be left to their fate would
include those at the highest and the lowest leveis of development. In
respect of the latter, there would be no sncred trust.as now in existence.
to Eurb the conduct of the governing group. Tliere would be a dange;
of the old tribal animosities coming to the surface again, so that, e.g.,
the Himha and Tjimba might be completely dispossessed of the areas
traditionally occupied by them, as they were in part by a Herero group
in 1915 ',and of the Bushmen again becoming hunted as "human vermin
of the veld" 4.
As regards the European group, its memhers would be faced with the
alternatives of evacuation from a country which has become their only
home, by birth or adoption, which they and their forebears have de-
veloped from a desert-like wilderness to its present stage of economic
advancement-or, on the other hand, of staying and being mied by a
preponderantly Black African population or a dictatorial clique. Similar
considerations. if not to quite the same extent, would apply to the
Coloured and Baster communities.
From the population figures set out in Chapter III ahove 5,it will be

' U.dof S.A. Pori. DebHouse of Arscmbly, Vol.99 (1959)Col. 66
' Vide Book VI. Chap. III, para. 39, of this Counter-Mernorial
' Vide Book III. Chap. II. para56.of this Counter-hlemorial,
' Vide Chap. III, para. 5. supla. COUNTER-MEMORIAL OF SOUTH AFRICA
473

apparent that tlie Ovambo is by far the largest population group in the
Territor?. constituting about 45percent. of the total population. Under a
system of universal adult or adult male suffrage for the whole Territory
as an integrated political entity, the Ovambo group must necessarily
be able to gain political control, Save in tlie most unlikely event of al1
other groups combining to keep them out '.Political coutrol by the
Ovambo would operate not only in respect of minority groups such as
the Europeans, the Coloured group, the Bastcrs, tlie Nama, the Dama,
the Herero and the Bushmen, but also in respect of the whole of the
Territory ofSouth West Africa. It may be emphasized again that basically
not of South West Africa as a whole. The more central and southern
parts of the Territory formed a battle-field between other groups, and
eventually hecame apportioned between the ahoveinentioned miuority
groups u their homelands or places of residence. Control by the Ovambo,
would therefore in eifect mean aaarandisement or colonization on their
1nfl-- alrliougli ai n1,i:oplerhe!. ht1i.encwr siiciiiptcd or aspirecl ;ittlic
a\.liit:\fcnicoftsucli;i.iitusti~ii'l'li\i.uiil,lI>eo~il!.otit:of 1:LIIUIII~~IC\J
rli.icuulclaiisc froin [lie :irtifiiinl~~xii~:dicnotf trei.311flic~ioi)uI:~ti~,ri
groups of the Territory as an integraied political entity:
It does not seem to Kespondent tliat anyone could seriously suggest
that an approûch as outlined above would be in consonance with KES-
pondent's obligations under or in pursuance of tlie Mandate.

27. Another method of approach may he to attempt to establish a
multi-racial society on the hasis of identical riahts for all. In view of the
uand of the fact that no experiment of this kind has ever succeeded, or isica,

showing any signs of being iikely to succeed, it does not seem to Respon-
ovenvlielming that Africûn nationalism does not in fact desire sucli a
multi-racial State. that it will not tolerate anv Drocess of aradualism
ûinird at I)riiiging:ihour siicl;,State. anclrIi.,itso;lV cleiii:incl'bsoliitr:
P<I>I.FTfo1.1lfrii;i~iSlti\csnn rlir h:i.;offliL.iriii:ijorir111utlwr \v\~rds,
ihis second alternative is but a sliehtlv loneerdrawn out Drocessthan the
first, but otherwise one involving~xa~tly the same resul&.

28. The only remaining alternative is therefore that of "live and let
live". a policy which seeks to remove the competition and conflicts of
interest which lead to friction and a struggle for supremacy in an at-
tempted process of integration, and which seeks to bring about free.
self-govemingcommunities which can CO-operatewith one another as the
natIn the next succeeding paragraphs consideration is given to certainst.
implications of tlie application of a policy with the ahore objectives to
South West Africa and its peoples.

29. Self-determination for various groups could possibly and fitly be
achieved at different poiiits of time. This implication renders unneces-
sas. any delay in the attainment of self-determination hy more advanced
groups merely because of lack of advancement and maturity on the part

' In CO-operationwith evena relatively minor group suchas their neighbours the
Okavangopeoples. they would have an over-al1 majority vis-d-visal1 the other
population groups combined.474 SOUTH WEST AFRICA

of otlier groups. Coii\,cr.;eI\itiiivolves for tlie 1:ittcrgroups the safcguird
of rctcntion h). Kespondcnt of the sacrcil trust obliyations towards tlicrn.
after other m6u~s mav have chosen inde~endence cnthe exercise of their
right of szf-déterinikation-and prot&ction against the threat that
"self-determination" bv the stronaer eroups could result in a denial of
self-determination ta <hem. --.

30. An implication inherent in the previous one is that during the
transitional stage Respondent must, as guarcùan, retain control over the
various groups until they have reached a level of sufficient maturity for
the esercise of self-determination '.
31.With a viem to assisting and guiding various groups towards
possible self-determination, development of their political institutions is
essential. Respondent proposes in this regard to apply experience gained
in the same direction in South Africa, and to guide the groups towards
an application of measures whereby an evolution will be possible from
traditionalsystemsto others more suited to the conditions ofthe modem
world. Further indications of wbat is envisaged in this regard will be
found later in this Chapter 2 dealing with political rights. Respondent
wishes to emphasize, however, the importance which it attaches to the
factor of evolution as opposed to revolution. It considers that the tra-
ditional basis is not to be discarded suddenly or completely in favour of
systems erolved in European or other countries for circumstances and
peoples totally different from those of Africa. It therefore favours a
course whereby modem elements are erafted uuon the traditions and
cultures of the particular African grouis. ConsêquentlyRespondent in
this process regards as of vital importance the actual co-operation of the
relafive eroupsin the matter of their ~olitical advancement, and seeks as
far as pfictiiable and equitable to gi;e effect to the wishes of the groups
tliemselves aç to the foms rvhich succssive stages of advancement are
to take '.
32. It willbeevident that the successand also the equity ofthe solution
aimed at through the applicatioii of a policy of separate development wiii
rest basicall~ on the a~~ortionment of a sufficient area of South West
Africa to each major gpulation group to serve as a homeland for it, in
which its members can develop to full self-realization.
History has largely madethe necessary provision in respect of the
northem Xative groups, i.e., the Caprivi peoples, the Okavango group.
the Ovamho and the inhabitants of the Kaokoveld. The intemecine
warfare and strife between some of the more southem erouus. and also
thc;~rinc<lcoiiflictsdiirin~ tlir Gerinan rcgiiiie.did iiotaffezttliisenorthcrn
tcrritories and their peoplc;. Althoiigli tliey have bccn ;~jsistvd l>!i Kvs-
i>ondenrtoii.ards inii~roi.cnicntof their tr:iclition:ilinctliods of a~riiiiltiirc?
and stw:k f;irming, il.,:ir tr~iiioinics;ire oii rlic wholcstill ;iii;hsijtcnce
ii;itiirc In ordzr tu copc \vitIthe grsx.tli of tliz popul:itioiis. tlic standard
of ecoiiomiclife intlir;r:;irr;ij\vilhave to be raised. ancl this ii tlii:rcfore
;imntt,-r Io uliich spccinl attention is bcing riirccted in the iiext pliase of
<levclopment. 13utsubject to these ~lii:~liF,c:itions a.nd possibly to so!iie
adjiistmeiit of the arcs ui\.ailablcto the parti;iil:ir groups. the provision

Compare paras. 17 and 18,supra.
Para. 40. rend withparas. 36-39 infvo.
'Compare ibid. particularly para. 37. COUNTER-XEMORI OAFLSOUTH AFRICA
475
made for them hy history appears to be substantiaily adequate and fair. ,
In the case of the Nativegroups in the PoliceZone, different considera-
tions apply. On the assumption of the Mandate, Kespondeut, as has been
indicated, found them in a largely scattered and dispossessed state,
except for some provision made during the German regime for places of
residence for certain specificcommunities. Ashas been indicated, andwiU
be dealt with in more detail later, Respondent has made provision for
considerable additional reserves for these groups. Nevertheless, the
existing reserves are, intealia,because of the population increases ou the
part ofthese groups under Respondent's tutelage,not nearly adequateto
serve as homelands in which each group can develop to proper self-
realization.
The reserves were, indeed. not planned for such a purpose, in view of
the contemplation that ernployment would he offeredto a large number of
the members of these groups in the economy of the European population.
This factor, together with historical reasons pertaining to treaties and
agreements with specific communities, largely account for the fact that
the reserves are not consolidated homelandsfor each group. but scattered
units for localized sections of the groups concemed. Early attention to
the making of revised and adequate provision in this regard is therefore
an importantstep in the implementation ofthe policy of separate develop-
ment.

33. In the case of all homelands, presently existing and planned for
the near future, a scheme of accelerated economic development is also a
matter of first priority. This is so not only for the basic reasou that the
subsistence of a growing population is to be provided for, but also in
order to provide individual members of the group concerned, who may
have attained a level of education and development above the average,
witli opportunities to find a proper outlet for their abilities and quali-
fications. It is in this respect particularly that, in Respondents' view, the
policy ofseparate development offers advantages in the economic sphere
possibility of members of one population group feeling themselvesids the
threatened by the educational and economic development on the part of
others. It avoids, also, the processes of discrimination in the private
economic sector which appear to be virtuaily unavoidable in al1 cases
where attempts are made at encouraging economic integration between
groups as divergent as African Natives and Europeans. In order to
smooth out transitions to be effected in this regard, and indeed to en-
courage members of the Native groups to employ their training and
capabilities towards the advancement of their own peoples and the
developrnent of their own homelands, Respondent wiii for the time being
bave to apply certain meaures which will, within the economy of the
White population group. favour members of the latter gronp in regard
to higher forms of employment and economic activities. Coiiversely,
however, absolute preference, encouragement and protection are con-
sistently being given to members of the Native groups in these same
respects in al1 matters pertaining to such groups themselves and their
particular homelands, as wiil be indicated further in later portions of
this Counter-Memorial.

34. For various reasons, progress in the actual implementation of the
constructive aspects of the policy of separate development has in South476 SOUTH WEST AFRICA

West Africa been slower than in the Republic of South Africa itself.
One of the reasons is that ever since assumption of the Mandate by
Respondent, the stage of advancement of the indigenous peoples of
South West Africa was always considerably below that attained by
many Bantu in South Africa. particularly in the educational and eco-
nomic spheres. Another important factor has been that, by renson of the
specificinternational obligations iiiidertaken by Respondent in respect of
South West Africa, Respondent has been cautious about applying to the
Territory any policies operative in South Africa, even with adaptations
to local conditions, without first having established their soundness in
practice in South Africa itself. This has become all the more necessary in
the postwar years, during which application of South African policies
to South West Africa has continually met with a barrage of emotionally
hostile criticism from some members of the United Nations, particularly
African countries. The application to South West Africa of the new
methods and policies introduced in Bantu education in South Africa
affords an example in point, as will appear from the treatment of edu-
cation in a later portion ofthis Counter-Alemorial.

3j. Respondent has for some time now been convinced that cir-
cumstances in South \Vest Africa have also developed to a stage where
accelerated and CO-ordinatedapplication of the constructive aspects of
a suitably adapted policy of separate development has hecorne possible
and hizh.. desirable. With this objective in view. Remondent has
al>pointed :i(:oniiiiis.iionof cspcrts of;.ut.çl,tioii,l ,t.,it<iiiivcitig.ite
cl.? iur~diliuiiuf Ilic iiiIiiLbit:iul .5uiitli\\'vjt .Afritriicparti~uI.lrly
tli,: non-\\'lritr ~rih~hitniits.arid to make rc.,ornrncnd;iti~in r:;ncir oi
their further advancement.
The composition of the Commission is as follows:
Chairman: The Hon. F. H. Odendaal,Administrator of the Transvaal;
OtherMembers: Br. H. J. van Eck, a leading South African industrialist
and economist, and Chairman of the Xational Development Cor-
poration ;
Dr. H. W. Snynzan,Professor of Intemal aledicine and Vice-Presideiit
of the South African Medical and Dental Council;
Dr. J. P. van S. Bruwer, Professor of Social Anthropology, who has
done rnuch previous research in South \Vest Africa;
......
Dr. 1'.J. Qrrin,:in :igriciilturnl ecorioniisr 2nd t-tlinologist mei~rhcrol
the SationnlSiitritionCto IiiSat~ioniil Fc>odI<esenrchCoinmitree
:ind tlic Sorionnl SoilCoiiscr\,ntion i3o:ir~i
Its tems of reference read:
"Having regard to wliat has already been planned and put in!o
practice. to enquire thoroughly into further promoting the material
and moral welfare and the social progress of the inhabitants of South
West Africa, and more particularly its non-White inhahitants, and
to submit a report with recommendations on a comprehensive five
year plan for the accelerated development of the various non-White
groups of South \%'estAfrica, inside as well as outside their own
territones, and for the further development and building up ofsuch
Native territories in South West Africa.
With a view to this investigation, your attention is particularly
directed to the task of ascertaining-while fully taking into con- COUNTER-MEMORIAL OF SOUTH AFRICA 477

siderxtioii t1.c l,:~~kground,tr~~litioi~s2nd lt:il>itsoi~IICS..ti\.~111.
1.abirants-lio!r. furtlicr ~)ru\.isiüiisl.ould bciii<id~f.ur tli:ir sucialniid
economic advancement.effective health services. suitable education
and training, sufficient opportunities for ehployment, proper
agricultural, industrial and mining development in respect of their
territories, and for the best form of participation by the Natives
in the administration and management of their own interests.
You are empowered to investigate any other matter which in your

opinion may be of importance in this connection, including the
financial implications and the manner in which any appropriation
of funds should take place '."
The report of this Commission has been due for some months now,
and is expected to be published in the very near future. Unfortunately
it has not become available at an early enough stage to be dealt with in
this Counter-3Iemorial. In so far as its recommendations, and the
Respondent Government's reactions thereto, will be relevant to the
matters concerned in this case, Respondent will at a subsequent stage
take tlienecessarysteps, with the leaveofthe Court insofar asnecessary, to
present such information to the Court for its consideration.
36. For the reasons given above developments affecting the Bantu
in South Africa have progressed further than has been the case in respect
of the Natives of South West Africa. A full and comprehensivereview
of such progress would again be out of place in a case in which policies
and practices in South Africa arenot in themselves matters for adjudica-
tion. The case concernin~ Article 2 (2) of the Mandate is. however. in
\, -~ , ~ ~ ~
essence concemed with questions of intentions or puriose or good faiih 31
relative to a sacred trust orirrinallv undertaken bv Reçuondent bv inter-
national engagement. It maftheréfore, by way ofillust;ation, be ~nstnic-
tive to have brief regard to certain aspects of what has been done and
accomplisbed in South Africa, in pursuance of a policy of separate
development, independently of any international engagement.
In particular, considerable progress has been made in South Africa in
respect of political deselopment. In this regard, Respondent has sought
to promote growth from the roots of the indigeuons Native institutions.
As was said by Respondent's Prime Minister with reference to the policy
in respect of political development of the Bantu:
".. .a svstem which has develo~ed over the centuries amoncst the
Bantu, a system which is known to them, indeed a system ;hich is
enmaved in their souls and which isincorporated in their own Native
laws. is bei-e taken as the startinuLooint for develooment 4".
He further said that political advancement-

". ..starts with the system which is known to them and which is
their own, and that their form of government and freedom will grow
and be adapted in accordance with the demands of modern civili-
zation. It will be adapted by the Bantu themselves with the as-
sistance that we can give them 5."

' Departmental Information.
* Vide para.34.
' Vide Chap.II, para. 14 ifina.andparas. 16and 21. supra.
* U.O/ S.A.. Pnrl. Deb., House ofAssembly, Vol.101 (1959)C.ols.6215-6216.
Ibid., Col6216.47b: SOUTH \VEST AFRICA

In accordance with these principles, statutes passed in 1951 ' and
1959 made provision for three types of Bantu authorities. viz., tribal,
regioual and territorial authorities.
Tribal authorities consist of a captain or chief of a tribe and a number
of advisers. As their name indicates, their functions are confined to the
sphere of the particular tribe. Regional authorities are established for
two or more tribal authorities, from which their members are drawn.
Their functions pertain, intea rliat,o educational institutions, the con-
stmction of roads, bridges. canals. dams. etc., snoervision of hosoitas
aiid cliiiicsarid tlic impr~veiiieiit uf farrniiig iiicthodi.
Tcriitorial :iutlioritrcs art: cstiiblijli~d for two or niore recioiial au-
thorities so as to comprise Bantu national units. They coiisist ofa
chairman,nominatedby the State President, and as many members as
may be required. The chairman and members are chosen from members
of the reeional authorities. The functions of territorial authorities. in
broadly fhe same sphere as those of regional authorities. extend over
the whole area of the national unit, and enable the authoritv to speak on
behalf of its people.
In the Transkei, in view of a distinctive historical background, there
are some slight variations in the composition, powers and names of the

authorities corresponding to those in other parts of the country. In this
area tbere are tribal or community, district and regional authorities,
and formerly there was also a territorial authority, which has developed
further. as willbe shown below.
l.lics<:Illritu niitlioriticili~\~e been inrroduccd progressi\.ely. and with
tlicCO-operationof tlic H:lntii.Today tlierz ;ireiiu le%tliari\.<:territorial
authoriiiei. 66 regional aiitlioritics 'ancl ~5 trit>:~:Iiutlior'.ies
37. These Bantu authorities formed part ofan evolutionary growth and
were not considered to constitute the limit to which Bantu political
development could take place. In rgjr already, the then Minister of
Native Affairs (nowPrime Minister) said:
"1 want, furthermore, to emphasize that the whole process is one
ofgradua1development. \Ve shall make a startby establishing tribal
authorities. In areas which mayalready be ripe for the establishment
of a regional authority, that will then be done as soon as possible.
In the areas in which the required maturity doesnotyet exist weshall
proceed to the establishment of regional authorities only after the
tribal aiithorities have proved their maturity. As the regional
authorities develop and show that they can fulfilthe duties entrusted
to tliem and can carry the responsibilities which they will have to
carry, the following step can be taken, namely, the development
towards territorialauthorities . .When the stage has been reached
that territorial authorities are functioning satisfactorily, the pos-
sibilityof a further stage of development will. in consultation with
them. have to be considered and determined5."

' Act NO. 65 of 1951 (S.A. )n,Statutcs othe Union ofSouth Africa1951,pp.
1152ActNo.46 of1959 (S.A. )n,Statuteof theUnion of South Afric1959, pp.

5'3-I~nluding district authorities in the Transkei.
' Including community authoritiesin the Transkei.
' W. of S.A..Parl. Deb.. Houseof Aasembly,Vol.76 (i951)C,ols.9809-98". COUNTER-MEMORIAL OF SOUTH AFRICA
479

As will be seenbelow, politicai authority in the Transkei has in fact
proceeded further than the stage of a territorial authority.
The acceptance of Llantu authonties by the indigenous population
groups and the development potential of this system has heen strikingly
iilustrated by events in the Transkei. In April 1961 the Transkei Terri-
torial Authority adopteù a motion callingon Respondent Government to
grant self-government to tlie Transkei and appointcd a cornmittee to go
intothe implications ofsuch a rcquest.
The attitude of Respondent Govemment to this request, was stated
by the Prime Minister as follom:
"The Government then declared its wiilingness to grant self-
government to the Transkei. Approximately five months after the
resolution passed by the Transkeian Authority in Hay of last year,

that is to Say, towards the end of last year, 1 personally met the
Execntive Council of the Transkei, who were supported by their
Councillors,in Pretoria.
........................

1 con\,e).cJ to ilieiii tlii(;ui,enirni.nt'; \i.illiiipicjs to Iiçlp tlieiii in
i<iiiriectioi\vit11tliis stcp, silice tlicir own organir;ition ;ipp:ircntly
coiiiidcr~.iliriclic ti,ii~cn;ikliu.t13 t;ijk ., . fmit il IOtliern,
therefore, that 1w'ouldlike to hear fyom them preci~elywhat typé
of constitution they had in mind.

The Government will therefore grant the Transkei self-govern-
ment. The Transkeian Authority will have to obtain clarity as to its
ideas concerning the form and content of the constitution and wiU
then have to come and discuss it with us '."
Regarding the composition and constitution of the various governmen-
tal oreans. the Prime Minister sai~~
- . ~
"If, as iri(li;nte?<lùythe U.zjuto :indSwazin:itiuns, itisd-lesiré?rhat
tlier*!shr,iilbc 2 suittible form uf representation tliroiigh tlie chi~fj,
<lirectlvor iiidire~tlv.in thc'l'riinikri Parlvilm~nt.tlicn tlie\.\vilh:ivc
riS;I~ so..\s kas t1.éGo\.~:riiincnri.;cuiit:rriic.it.ivants tlic e1ciiii:iit
of r~:l>rcsi~iit;~titn bc inrroduce~lin onc forin or :inotlier. biit aj tr,
t11edctuil; niid n; II)Iiu\\. iis to 20Iiand in Ii.iii\rith thc iJ~,:iof
(~hicfiaii~~l~i ~~tt 1s iinit-ler 011 ~~~liictie Bantu tli~riis~lv~:\~ ulI
Ii.i\'eto iiiforiti11sin the r.r,urofcon~iiltarii?iis. ..
S~Yoncily.tiiis P:irli:iment \vil1Ii:iveto Ii:i\,:;IIescciiti~e I~od!..
1donnt kiio\v\\.lietIic.rat iIiissi;,jic the Rantuiirli:i:ire> ii.111e prc-
pared to :iccrpt thz Cabinet syjtrni char ;1 Primç .\linister ùe ;il>-
i?ointeJ \\,ho \\.il1[lien liiins~lf..riointIII,otlier \linistc.rs. As kir ai
ilizgo\.t>riinieniisconceriie<l. itisprrl~;irr~lto iritrodiicc tlie Cabinet
s\ steni in clte'l'rnnskeiari1';irliariiei2."

hé Prime Minister continued by pointing out that the Bantu would
have to takean increasing part in the civil service of the self-goveming
Transkei. In this regard he said:

' R. of S.A., Parl. Deb., House of Assembly. 19 Jan.to 26 Jan.lgGz(Weekly
edition )o,ls. 4-75.
Zbid. C,ols.75-76. SOUTH WEST AFRlCA
460

". ..it is the intention to help the Transkei Government to replace
the \\'hite officials. from the lowest grades upwards, as soon as
r~~~ible..with Bantu officialswho have been ~ro~erlv trained.
In conjunction with the Bantu ~overnm&t, ihea~epartment of
Bantu Administration and the Department of Bantu Education
will try to draw np a programme of ieplacement as the target to be
aimedat over the next five years. In this way increased opportunities
willbe given to the Bantu in their own territory '."
38. The report of the Committee of the Transkei Territorial Authority
to which reference has been made above, contained a draft constitution.
Tliis draft was accepted by the territorial authority. A Bili giving
ÇNLCL IOthe oiupo~iilj OÏ th^c%inniittcc ii.:issubscqiicnily jirej~ard :iiid
;~~~~~ro\b ~y~ctlic t,~iiitorial :iutliurit'flic ïranskci Cuiistitutioii r\ct.
So. JS of irj6.3.\rr.îsp.ij,c~l Li, I'.îrli:imciit aiid assciitcd to bv the ;rate
- ~ , ,-
The Act coniers self-government on the Bantu resident in the Transkei
and on certain Bantu related to the Bantu of the Transkei. Provision is
made for a legislative assembly and a cabinet asthe esecutive authority.
The traditional institutions ofgovemment and modem western principles
of representative govemment have been combined in the constitution of
the Legislative Assembly, mhich consists of 109 members, including four
Paramount Chiefs of the Transkei and 60 Chiefs as ex oficio members,
and 45 members elected by popular vote.
The Leeislative Assemblv has been eranted wide Dowersof leeislation.
inc~udiii~powersregardinidirect taxaTion, Bantu education, agFiculture;
the establishment. administration and control of inferior courts, the
protection of life, bersons and property, land settlement, public works,
roads and bridges, localauthorities, road traffic, labour, welfare services
aiid civil services 3.
The executive vests in a cabinet which consists of a Chief bfinister and
five other Ministers, al1elected bythe Legislative Assembly.
The Transkeian Government initiallv has the followina -.partments
nnder its control:

the Department of Agriculture and Forestry;
the Department of Justice (with control over the lower courts; higher

courts will be controlled by the present division of the Supreme
Court for the Eastern Cape);
the De~artment of Finance ito be mana~ed bv t-e Chief Minister);
the 1)epartment of the ~nterior;
the Department of Roads and Works.
In Decémber 1963 the Legislative Assembly was constituted for the
first time. after an election of its elective meinbers, and a cabinet was
formed under the leadership of Chief K. Matanzima, the first Chief
Minister of the self-govemingTranskei.
39. The majority of Bantu have welcomed the creation of the Bantu

R. of S.A.. Parl. Deb.,op.cit., Col. 77.
Act No. 48 of 1963 (S.A.). iGovernmetil GazclteVol.VIII, No. 516, 30 May
1963.PP. 2-48.
Vide ibid., Second Schedule, pp. 44-48 COUKTER-MEMORIAL OF SOUTH AFRICA
461

authorities, and have afforded Kespondent an increasing measure of co-
operation in developing and extending them. Typical of the attitudes
found, is a statemeiit made by Chief Isaac klatiwane in addressing a
gathering of chiefs and headmen in the Transkei. He said, inter alia:
"The institutions provided by the Government forthe advance-
ment of the Bantu people and to assist them to attainthe standard
of living reached by the White races, should be safeguarded by the
Bantu themselves. The Government desires us ta get offits back and
start to learn to walk on Ourown feet.
1 wish you ta bear in mind that 1 am now full-mouthed, talking
about 'Home', and what is more, 1 am talking about home in the
same way as an Englishman calls England 'Home'.

With a land and Iiomethus guaranteed, our emancipation presents
no auxiety at al1about the future '."
40. r\ltliougli tlicse jysteiiij 11,~t.icivt bvcii int,ruduccd in Soiitli \\'est
Africa, ;isiniilar dcvcluliiiitiit, ndapre(l tu tltc 11~su1i;iirirciiiiir;in:c.i of
the l'urriturv,. ij to bc ~.v'~c~tcd I. tliis rt..zirdflic I'RIIIC3lIn~itcr SJI~:
"1 am not discussiiig South West Africa now. If, however, UN
asks us to do the same for the various communities in South West
that we are doing for tlie communities in the Republic, I shall be
only tao glad. We shall be only ton glad, for example, to do for the
Ovambos what we are doing for the Transkei 2."

41. The development of Bantu political institutions was preceded by,
and combined with, considerable progress in the fields of education,
housing, welfare services and economics. In addition, political develop-
ment, already attained and visualized for the future, served as a stimulus
for further expansion in the fields mentioned. Some examples will be
given in the succeeding pa-a~raphs.
42. In tlie sphcrc of cduc:ilion. 1+23? inill~oii([III million) \vas spent
I)et\veen 1948and 1962. :\ srafi uf 28.000 qii;ili~i.(lRiiitu rznzliers are :it
prcjciit erigagc.din the ciiucation of 1.6 million lilntii pupili. On liniltu
school hoartls 4.000 p;irenrs :ilid on schoul coiiiinirteci ji.ou<i Ixirciits
i~lavan active iiart in the iontrol of tlicciiiic:itioii of their sliilrlrcn. ;iiid

at ihe same time receive training in democratic practices ).
43. Bantu are encouraged to trade in their own areas, and more than
7,000 trading licences have already been issued to them. The more than
500 Bantu authorities' will employ Rantu officiais only-secretaries,
treasurers, clerks,etc. The 80-odd post officesaiready functioning in the
Bantu areas are staffed entirelyby Bantu-from the postmaster down to
the postman.
In addition, some 7,700 Bantu nurses, 14,000 Bantu policemen and
2,500 other Bantu public servants cater for the needs of the Bantu. The
Bantu nurse can advance to matron and the policeman to station com-
mander. Already 40 police stations are manned entirely by Bantu.

The Progress ofthe Bantrr People towrds .Valàonhood (Department of Informa-
tion). p. 6.
edition), Col.92.rl. Deb., Housc ofAssembly, 19 Jan.ta26 Jan.1962 (Weekly
' Regarding the system ofRnntu Community schools, vide Book VII, Chap. IV.
paras. 37-40.of this Counter-hfemonal.
' Vide para.36, supra.482 SOUTH WEST AFRICA

44.As a result of spectacular success achieved with the employment
of Bantu ticket clerks at railway stations used predominantly by the
Bantu, the Railways Administration has decided to appoint more Bantu
clerks to serve their people. Bantu instructors are used in the training
of the clerks., Commercial hanks successfuliy employ Bantu teliers in
branches and agencies situated in Bantu areas and townships.

45. ALsoin other respects, Respondent's policies have brought about
tangible benefits to the Bantu population. A few examples of this should
suffice. Thus, in respect of urban housing, vast improvements have beeu
effected in recent years. At the end of the Second World War chaotic
conditions existed in this regard. As a result of unprecedented industrial
development during the war and post-war years, and the largely un-
controlled movement of Natives to the towns, vast slums and squatter
camps were created adjacent to the industrial centres. To remedy this
situation, 133~,886 homes were constructed between 1948 and 1960 at a
cost of R81,162,280 (L40,581,140)which sum was provided on a loan
basis by the Government. In addition, local authoritiesobtained finances
from other sources, with the result that a total of approximately
R126 million IC61 million) was em~loved for this Durnose.. .il and
transport srn';cii cost in addiiioi;;il amount of approximnttly
KIU~ rnillion (L5q.5oo.ooo). In l>uildingtliese liouses, ilse was made rrs
far as ~)ussiblr.of Bnntii nrtis;ins. and;1speci:il programin,. institutçd to
train greater numbers ofrlicni. At the same tinie. \,igorous slum clenrarise
-.ojects srerc iiiil)lenicntrd.
46. In 1960 a five-year plan of development of rural housing was
initiated, in terms of which modern villages are to be built in the Native
areas. This programme calls for the construction of 81.505 dwellings in
the years 1960to 1965, and its execution is well under way.
47. Bantu health services cost the Government,ProvincialAdministra-
tions and Mnnicipalities approximately R4o million (Lzo million) per
year. Some 72,000 beds are available for the Bantu in South African
hospitals. These include Baragwanath hospital, for non-White patients
only, mainly Bantu, near Johaiinesburg, which is the biggest hospital
on the African Continent, with 46 wards, IO surgical theatres, and 2,500
beds. It annually treats nearly 600,oooout-patients, and the 182full-time
docto~ in its employ, half of whom are specialists, include 16 Bantu
doctors.

qS. In 19qS npprosimatcly io,ooo rnorgeii of larid ' iii tli?Snti\,e
areaswerc iinder irrigatiun. U) iqto tliis had inçreascd to Ij.zh7 morgen.
Iri that vear.a rive-venr sclicnic was iriitiitted to brin::,furtlier rl.orl
morgen &der irrigation. A scheme of this sort nec&arily takes ;&ne
tirne to produce results, but nevertheless an additional 2,252 morgen
were alreadv under irrig-tion bv the end of 1062.~
49. In addition to the specific topics mentioned in the previous para-
graphs, development of the Bantu homelands has ~roceeded in al1 its
aspects, with more and more active CO-operationfrÔmthe Bantu them-
selves-a matter towards which efforts have continually been directed,
particularly through the system of Bantu authorities. Thus ambitious
programmes have been commenced, dealing with a variety of subjects

'Approximately 8.569 hectares (Ihectare= i.167 margen) COUNTER-MEMORIAL OF SOUTH AFRICA 483

such as afforestation, fencing, roads, bridges, dams, boreholes, home
industries, crop and stock improvement, socialservices, etc.
50. In the preceding brief summary, Respondent has given some
indication of nieasures which have been taken in the Republic of South
Africa. The successachieved with them hassuggested that future develop-
ments in South West Africa should take a similar course, although the
unique nature of local conditions would naturally require differences in
the methodsand tempoof application. It isparticularly inthisrespect that
the enquiry by the Commission referred to above ' and programmes
which may foliow upon its recommendations, are designed to play an
important and constmctive role in the next phase of development.

SI. Respondent is fully aware of the existence of a vast amonnt of
adGerse ciiticism, hostilë comment, vilification and abuse directed at
itspolicy of separatedevelopment. Much thereof has arisen from wrong or
inadequate factual information or assumptions, misrepresentatron,
partisan political motivation and the like. In particular, Respondcnt's
policies have often been assumed or misrepresented to be founded on the
concept of White supremacy. or to be directed at the oppression of the
non-Europeans, and condemned on that basis. So, for instance, Mr. R. J.
Stratford. a former member of the South African Parliament (inwhat is
now the main Opposition party) who has been living in Europe for the
past ten years, is reported to have said on a recent visit to South Africa:
"Most people overseas were still under the impression that the
policy of separate development was aimed at keeping the Bantu
down. Tliey did not realise that the policy was aimed at uplifting
t~~--~~..'
Direct instances of this particular fallacy are legion, and some examples
should suffice. Indeed, tbis attitude appears from the 1960 Report of the
Committee on South West Africa, which referred to"the policy ofapart-
heid based on the concept of 'White supremacy' over al1other races" 3.
In 1962 the delegate of Ghana told the General Assembly of the
United Nations that:
"... the pernicious system of apartheid continues to be applied,
resulting not only in segregation. discrimination and deprivation of
basic human rights but also in the complete subordination, to those
of a small minority of Europeans, of the interests of the indigenous
people who are treated in their own country as outcasts, a source of
cheap labour and denied even the solace of education 4".

A Liberian delegate, in addressing a Committee of the United Nations
in 1961 said: "What exactly was 'apartheid'? A doctrine of racial
superiority, which held that the Africans were mentally infcrior to the
whites As a further example, reference may be made to a state-
ment by the Sudanese delegate in the General Assembly ofthe United
Nations in 1962.He is recorded to have referred to-
". ..the question of the race conflict in the Republic ofSouth Africa

' Vide para. 35supra.
The Prcrorin A'ews.16Dec. 1963.p. I.
VI. p. 83.
' UN. Doc. A/PV. 1143. pp.64-65
' C.A..O.R. ,ixteenlhSesr., Spec. Pol. Comm.,zpnd Meeting3,Oct. 1961,p.61. COUNTER-MEMOR IAFLSOUTH AFRICA q85

55. Writing about partition in a recent series of articles after an ex-
tensive tour iri Southern Africa,Smith Hempstont, a well-known Ameri-
can author andjoumalist, said:
"It might not work in South Africa. On theother hand it might.
This is the ~rinciual fact: no other solution even remotelv fair to
white or black'appeârs possible '."
jb. jeiiator :\Illn Ellcn,lcr, ineinl~erof the Uriilcd States :\inzrica
Scnate :\pl)iopri;itions Coiiiniittcc. \rliile oii a tour of al1 United 3tatt.s
Forei-n Svn'iie l'usts11.\fr~i:i,sai111IJurbln. Soiitli .\fricil
"Notwithstandinr mv Govemment's views on the matter. 1
personally havc tliëgreatest sympathy with your problems. 1 think
your Government is on the right track and 1am convinced the time
wiil corne iirhenmy Govemmënt will have to change its view about
your policy 2."

In his subsequent report to the Senate Committee he stated:
"The policy ofapartheid, or separate development, is very nearly
the only method which promises to solve the many prohlems facing
the Repuhlic. lnstead of developing tlieir state along multiracial
lines, which coold not lead to anything except native political
dominance, the South African leaders have chosen the only possible
policy-tlie political separation of tlie races. If the policy is carried
out without prejudice and objectively it should be acceptable to the
world. and entirelv fair to the native . .ulation.
'llicpriiiciple of s$:p:iratcclcvcloynir.iithis loiig hccn recogiiizecl
tlie \vorld ovcr :sn iiiearisof avoicling friction I~ctweentwo dirfercnt
races of peoples who have been thÏown together because of geo-
graphic accident 3."
57. Writing to the London Dail Tyelegraph,Leslie Beilby said:

"Whatever tlie position may have been in the past, the whites of
South Africa riolonger have to be bludgeoned into realising the need
for African political advancement. l'lie majority, and 1 would
include Dr. Vcrwoerd among them, accept this. What they do
require isa way of giving the Africans political rights which will not
endanger their own security .. .
There are only three courses open to the Country: To have 'one-
man-one-vote' immediately. To allow the Africans to take a grado-
ally increasing role in govemment. To have some form of partit!on
which willresult in a majority of whites in onesector and a majority
of Afncans in the other.
The first course would be catastrophic, resulting in something far
worse than the Congo and hringing misery to Africans as well as
Europeans. As a peaceful solution it is out of the question.
The second courseis admirable except that no one has heen able to
convince South Africans, by word or by deed, that it will work
satisfactonly. Most of the whites consider that it wiiilead inevi-
tahly. and rapidly to hlack domination, . ..
The third course opentosouth Africa-thatof partition-ispursued
' Hempstone. S.."Partition-A Solution forSouth Africa", in ChicagoDnily
News, g Sep.1963.
The Star, 28Sou. 1962.
Ellender. A1..A Rcpo~f on U+~>te dlofeForeign Opernlions iAfrica,p. 121.486 SOUTH WEST AFRICA

by the Govemment on the grounds that it will remove the fear of
domination. For a long time the Govesnment was thought ta be
bluffhg to gain time and maintain white control but. whatever the
original intention. Dr. Venvoerd now appears determined to try ta
divide the country. Whether he can do it is arguable '."
58. Rlr. C. G. Brandt. Chief Editor of The Netherlands daily paper,
DeTele~rnai,.~ reoorted to have said:
"1haye spoken to many people black and white (on the subject of
Apartheid), and none has been able to produce an altemative
solution well thoueht out in al1its conseauënces
1consider it aso;nd andlogicalsystem ijhich migbt result inasatis-
factory solution of the whole problem .. .Z."
59. The Vice-President of the French National Assembly, M. Ray-
mond Schmittlain, said he was certain the Government's Transkei policy
would succeed and he thought that is was correct '.

60. M. Paul Giniewski (French joumalist and author of, inter alin.
"Bantustans-a trek towards the Future") was quoted in the Territorial
Nems of 30 August 1962, as having said that whereas he had doubts two
vears before about the ultimate aims o~ ~~~ ~ - -ment asregards the
Transkei, his second visit gave him the answer: "Bantu tat tes aoieg
to be." He added that: "Political inde~endence would have to he cea-ed
to economic interdependence." :
61. In a work published in July 1962, Sir Penderel hfoon, an ex-
perienced British colonial administrator. who waç also an adviser to the
Government of India from 1948to 1961,interdia, said the following:
"To understand South Africa's problems, these are the basic
facts which have to be kept in mind. It is recognised now by most
South Africans that the present system of complete White political
dominance cannot continue indefinitely and that opportunities for
political self-expression must be made available to other racial
groups; further that this wiUhave to be done far more rapidly than
was envisaged ten to fifteen years ago. But if parliamentary demo-
cracy of the ordinary pattern were to be introduced. the whites
would be ovenvhelmed by the superior number of Black voters
and would soon become an impotent minority in a Black State. They
would thus surrendernot only their dominauce overothers but their
own right of self-determination which they necessarily and justly
claim.
This the vast majority of the LVhitesare not at present prepared to
do. .. .Apartheid is the logicalculmination of a policy deriving from
the nineteenth century and followed consistently-but not very
energetically as there seemed to beno hurry-by Botha, Hertzog and
Smuts. Its logicalconclusion will be the formationof Bantu States
(Bantustans). Whether tbev would be com~letelv inde~endent, or
become units in 3 federation. or remain subohinaie in soine respects
to the Repuhlic. are problems for tlie future. Up tilthree years ago.
maintenance of White political suprernacy \$,ascertainlv coiitem-

The Daily Telegraph20 Aug. 1g63.
The Star,23 Feb. 1963.
The Natal Mncury, 14Mar. 1963. COUNTER-MEMORIAL OF SOUTH AFRICA 487

plated '. But since then Dr. Venvoerd has publicly conceded that
they can become, if they show the desire and ability, 'as free as
Ghana is today'. But the intention and hope is that they willremain
linked with the Republic by political and economic ties. It is
difficult to see how anyone could object in principle to such a policy,
if itis honestlyand fairly carried out . . . In our own day, Ireland,
Palestine and India-to mention only th~ee of the more prominent
examples-have al1been partitioned, and al1basically for the same
reason, namely that one race or self-conscious group refused to be
subjected to the dominance of another. There is no apparent reason
why in the case of South Africa such a possible outcome should be
regarded as damning a whole policy Z."
62. It is instructive to note, by way of contrast with the above, certain
views expressed in 1956by Lord Hailey. He said:

"From time to time Europeans who have settled in other terri-
tories have shown an inclination to look to South Africa for coun-
tenance in their effort to maintain policies based on separatist ideas.
whiie to those who look forward to a greater measure of integtation,
the regime of the Union has become a natural target for attack. But
there is here something more than a contrast of philosophies. Both
sides realize that the essence of the matter lies in the fact that the
doctrine of apartheid implies that the E~~ropeancomunity mus1
continue to holda position of controloverthenon-Ezcropeancommzcni-
tees.Zt is actually on this basic issue, and not because of any argu-
ment about the maintenance of a European pattern of civilization,
that the two schoolsof thoughttend to range themselvesso decisivelyin
opPositecamPs 3." (Italics added.)
Lord Hailey's view "that the doctrine of apartheid impiies that the
Eurouean communitv inust continue to bold a ~osition of control over
the iÎdn-European coniiiiiiiiities" wns hn?(d on: or miist tirIf..lst Ii~ve
bcm inHiicnie(lby. n consideration referred ro by liim iiia later passage.
namely that-
"It is true that the sDonsors of the doctrine of apartheid have
Iiclrloiit to Afric:rns t~ie'~ros~ectof n fiiture in ivhich tlic!. ma! in
tlieir o\irnsplit:rçoni riun li\.e iindarrcgiriieof insritiitionî inspired
by 1l;intii traditioii Ijrrl lhchoc ban no plt.&c th.11/hi\-;.il1secure
/ur the /ianttr a>tymrd\ure O/ polrtirdl aulouum) leholdor fiarliai. ilr
any iiefi~iedurea of th? L'>iio'." (1r;ili~s:idded.l

As has been.demon.strated, the viek expressed by Lord Hailey did
not, even in 1956,correctly reflect Respondent's policies5. At present,
however, whatever basis for misunderstanding there may have been in
that regard, has been removed. Not only has a "pledge" of political
autonomy been given, but the Transkei has already, with active as-
sistance and encouragement from the South African Govemment.
proceeded a considerable distance towards "political autonomy ... in

' This impressionon the author3 part, thoiigh understandable, k not entirely
correct in the unqualified forin which it isput: vide paras. 14-1SUP~.
hloan. P..World Opinion and South A/rico(1962).pp. 7-10.
' Lord Hailey, An A/vicon Sunicy: Revised Ig56, p. 169.
' Zbd, p. 254.
' Vide paras.13 to 17,supra.488 SOUTH WEST AFRICA

[a]defined area" of South Africa. In these circumstances it is clear that
the factor which Lord Hailey regarded as the "basic issue" between
supporters and opponents of Respondent's policies (i.e., the implications
which he saw in Respondent's policy, that control by Europeans over
non-Europeans would continue) has now failen away. Consequently the
basic issue at present relates not to the question whether political
autonomy is to be granted to the Bantu. bit to whicli method would be
the most appropriate one for achieving this purpose. And it is the reali-
zation of this feature which has increasingly influenced cornmentators to
express views such as those set out in paragraphs j3 to 61above.
63. Respondent must stress again that evaluation of policies applied
in the Republic of South Africa is per senot an issue in this case, and
that a systematic and detailed discussion of such policies and their
applications has therefore deliberately been aroided.What is important,
however, in vien of the nature of the accusations brought by the Ap-
plicants, is the question of basic aims and ultimate objectives, and of
methods best suited towards their achievement.
It is in the light of the indications affordedby the various rnatters
dealt with in the above four Chapters regarding Respondent's policies-
topics-thater Applicants' charges ofeedmalapafideshon Respondent's partfic
relative to policies applied in South West Africa are submitted to be
devoid of foundation or substance. Annexes to Book IV of the Counter-nlemorial filed by the Government
of the Republic of South Africa

Annex A

HKIKF ~.~LTC.\L I\(:CVUST UF '1.IIL:CO~TLTL'~'IO.\..~L :\I<KAS(:~~:\IFST 1Y
*\FRIC.%.\~ÜuSTKII:.~ >uui'H CiFTlll;S.IH.\I<.\1'1<101<1U IHE OC'THHE.%IO (F

Southern Rhodesia

I. In 1898, shortly after the territory of Soutliem Rhodesia had been
brought under British Administration by the British South Africa
Company in pursuance of a Royal Charter, a Legislative Council mas

established foi'the territory l.It consisted originally of nine members. of
whom five were nominated by the British South Africa Company and
four wereelected by the registered voters ofthe territory 2.Thereafter the
com~osition of the Council was altered from time to tirne. Thus. as from
1926 it consisted of 13 elected members and six nominated méinbers '.
Controlover Native Affairs was expresslv reserved to the British Govern-
ment '.

2. In terms of the qualifications of voters laid down in 1898, tlie
franchise was extended to al1 adult male British subjects regardless of
race, but subject to certain property, incorne and educational qilalifica-
tions Although the Native population in 1901wasestimated at 500~000
as against 11,070 Europeans 6, the effect of the franchise qualifications
waç to exclude al1but a feivdozen Natives from the voters' roll 7.
3. In 1923 Southern Rhodesia was formally annexed to the British
Crown, and given self-government in a new constitution which came

into force in tg24 The Executive was made rcsponsible to the Legis-
lature 9,which consisted of a fully elected legislative assembly of 30

1 The Southern Rhoderian Order in Coi'ncil, 1898, in The Statute LarofSoulhevn
Rhodesia (from the Charter to Dec. i8~.1. ... -2-..,
Zbid.. secs.17and 18, p. 38.
' Oficial Ycar Book O/ Southcrn Rhodasia. No. q (rgjz). p41.
' Lord Hailey, An African Suniey (1938). p. r58.
' Pvoc. No. 17 of 1898 (Southern Rhodesia), secs.3-5. in The Stotute Law of
Soulhern Rhodcsia (from the Charter to Dec. 1898) pp. 158-159.
Oficinl Year Book of Southern Rhodesia, No. 4 (1952). p. 130.
' Franck. T. M.. Race arid Notionolism: The Struggle for Power in Rhodesia-
Nyasaland (1960). p. 17.
Crnnd. 5949, p. '2.
Southern Rhoderin Constitution Lelta~s Palenl, 1923. sec. 37. in Stolutory
Rules and Orders and Stntulory Znstrumenls Revised (1948) (hereinafter referreto
as S.R. 6. 0.Revised (1948). Vol. XXI. p. 379.490 SOUTH WEST AFRICA

members '.A few subjects were excluded from the competence of the
new legislature, and these included Native affairs 2. The Governor was
charged with the protection of Native interests; he had to reserve for the
pleasure of the British Secretary of State for the Colonies,i~tteralia, any
laws which were discriminatory as regards the Natives, "save in respect
of the supply of arms,ammunition or liquor ta the natives" '.Except for
some amendments of minor importance in 1937. the constitution of
Southern Rhodesia remained virtually unchanged until the establishment
of the Federation of Rhodesia and Nyasaland after the Second World
\\'*r

4. The franchise for the election ofmembers of the legislative assembly
was ouen to aii British subiects. male and female, includina Natives. but
it waSstii1 subject to prop<rty and income qualifications \;hich resulted
in very few Natives in fact coming ont0 the voters' roll. It was said that
only 58 Natives were on the roll in 1933 5,when the Native population
was estimated at 1,130,000 as against 52,210 Europeans6. In 1939 the
population consisted of approximately 1,374,000,Natives, 64,000 Euro-
peans, 3,640 Coloureds and 2,410 Asiatics 6,but in that ear there were
only 39 Natives on the voters' roll, out of a total of 24, t26 voters '. Ali
members of the Legislative Assembly and the Executive were Europeans.

NorlhernRhodesia

5. Prior to 1g11,and after the British South Africa Company had
extended its rule to the Temtory of Northern Rhodesia, mostly through
treaties, the Territory was organized by means of a series of British
Executive Orders in Council into two Protectorates, being Barotseland
(North-western Rhodesia) and North-eastern Rhodesia. An Order in
Council of I~II joined the two regions into the Protectorate of Northern
Rhodesias, and provided for a Council to advise the Protectorate
Administrator 9.The Council,which was first appointed in 1gr7, consisted
of six members. three beine - Comoanv officials ex offic"o.and three au-
puinrcd b!. tlir Company froin ttie'l~u~o~eanscttlcd popul:itiaiii.In rqi3
tlii: Compariy's administrative niithoritv \vas traniferred to the British
Cro\in 'O.and iiithe follo\viiir vcnrn Lt~lilat~\~e(:ounciI~asestilblisl~~d Il.
consisting of the ~&ernor,"f;ve ex o&io members, not more than four

'S.R. 6. O. Revised (rgqS), Vol. XXI. sec. 3, p. 372
Ibid.. secs. 26(2)and 39-47, p- -377, 380-382.
' Ibid., sec. 28 (a), p. 377.
' Volers Qualifications and Regisfrations Amendmcnt Ordinanu 1912. sec.2. in
pp. 225-227.Law of Sordhern Rhodesia from 1stjonuary rgrr to 31st Decembtr 1922.
' Hailey. An Africon Survcy (1938) pp. 1gg-r60.
' Oficial Ycnr Book of Southern Rhodesia No. 4 (i952)p.. 130.
' Cmnd. 5949. p. 15.
Northcrn Rhodesio Order in Council, 19rr, in British and Foreign Statc Pap~rs
(series hereinafter referred to as "State Papers"), Vol. CVI, pp. 463-476.
Ibid,. sec. 13. pp. 466-467.
'OCmnd. 5949, p. 13.
" Thc Norihcrn Rhodcsia (Legislatirre Council) Order in Coitncil, 1924,in Stol8
Pupers. Vol. CXIX. pp. 36-41 COUNTER-MEMORIAL OF SOUTH AFRICA 4g1

nominated official members, and five elected unofficial members '.
An Executive Council was also established to advise the Governor2.
Althoueh orovision was made for the a~~ointment of unofficial members
ro~ÏheEx~cuti\.c Council, no suc11appoi;itinents were in f:ict made up to
ir,iC'. 11sfroiii rhar j.c.3rthe Leeijlatl!.~ COII~CIiuInsijte~l uf tlie Guvr'r-
no;. five ex officio members. three nominated officiai members. one
(~iro~ean) nokinated unofficial representative for Africans and Seven
elected members '.

6. Up to the outbreak of the Second LVorldWar the Natives did not
participate directly in the Government ofXorthem Rhodesia, their inter-
ests being represented at that time by the single European unofficial
member of the Legislative Council nominated for tbat purpose, and
referred to above +.It is estimated that in 1934 5 there were 1,366,425
Natives, 11,464Europeans and 188Asiatics in theTerritory6. The Native
inhabitants were regarded as British protected persons and not as British
subjects ?, and were therefore primarily excluded from the franchises,

which was limited to British subjectsg. Natives could become British
sub'ects by naturalization and thus acquire the franchise, provided they
coujd comply with the prescribed roperty and income qualifications 1°;
but few ever availed themselves ofthis opportunity ". Again, tlierefore,
the membership of the Legislative and Executive Councils was entirely
European.
7. In Barotseland, as a result of an agreement in 1936between the
Paramount Chief and the Protectorate Government IZ,the Governor was

empowered l3to recognizeNative Authorities whichexercisedjurisdiction
within certain prescribed limits and which were empowered to issue
orders and makeniles oncertain specifiedsubjects of minor importance ".
However, the Govemor could, after consultation with the Paramount
Chief,revoke or alter any such order or rule 'I.

The Norfharn Rhodasin(Lcgidafiue Council) Order, op. cif.,sec.3, p.37.
The Norfhcrn Rhodesia Order in Council. rgaq. sec. 1%.in Sfafe Popers. Vol.
CXIX, p. 45.
Hailey, An Africnn Suwey (i938). p.170.
* The Norfhern Rhodesio (Legirldive Counçil) Amendment Ordcr in Council. 1938,
sec. 3, in Stofc Pnpers. VoCXLII, p. 40.
' No figure are available alter that date, until 1944.
Kucrynski. R. R.. Dernogrophic Suniey offhe Bnrish Colonial Empire (1959).
Vol. II, p. 416.
' Cmnd. 5949. p. 19.
Ibid.See alço Hailey, An Alricon Suwcy (19~8).p. 170 and Hailey, An African
Sumey: Revised 1956 (1957). pp. 290-z9i.
The Legirlolivc Council Ordinancc, 1925,sec. 9, asquoted in The Casfitulions
of Al1CounMes, Vol.1, pp. 532-533.
'Vbid., secs. g and IO,pp. 532-534.
" Hailey. An Alricon Suni~y (1957). p. 291.
'*Hailey, Native Adtninisfrnfion, Part II (rggo), p. 89.
" Barofse Native Aulhorify Ovdinance. in Laws of Nwthern Rhodesia. 1963
Editiom. Vol.V. Chap. 159, pp. 2-13.
''Ibid.. secs. 38 and IQ (1).
" Ibid.,secs.II (1) and (z)and ig (5).4g2 SOUTH WEST AFRICA

Nynsaland

8. In 1902 a Commissioner was appointed to adininister the Territory
of Xyasaland on behalf of Great Britain '. In 1907 he was replaced by a
Governor and Commander-in-Chief and at the same time Executive and
Legislative Councilswere instituted 2.The Executive Coiincilconsisted of
the Governor and nominated ofiicials3. The Legislative Councilconsisted
of the Governor, three ex o@cioofficia1members, and such unofficial

members as the Governor mirlit fromtime to time amoint '.In 1077 the
members of the ~e~islatir~ëCouncil were the ~ÔGrrior, four 'Gfficial
members and four unofficial members, all beina Europeans. The Senior
Provincial Commissioner and one of the unofficralrnekbers, a Euronean
selected froin one of the missionary societies, were the chief represénta-
tives ofNative interests on the Council 5.-4sat 1937,there were 1,635,804
Natives, 1,894 Europeans and 1,631 Asians in Nyasalarid 6.

Swaziland

9. Conventions of 1881 and 1884 between the United Kingdom and
the South AfricanRepublic yaranteed the independence of Swaziland '.
As a result, however, of numerous concessions being grarited by the King
of the Swazis, some form of European control came to be considered
necessary 8. After a provisional arrangement which operateri froin 1890
to 1894, a further Convention provided for the exercise of powers of
protection and administration,without annexation, by the South African
Republic8. This endured until the Anglo-Boer \Var (1699-1902).which
resulted in the annexation of the South African Republic (Transvaal) by
Great Rritain and in Swaziland becoming aBritish Protectorate. In 1903
the Governor of the Transvaal wasempow-eredto administer Swaziland 9,

with authority to legislate by proclamation 'O.His aothority was trans-
ferred in 1906 to the British High Commissioner for South Africa ",
and in 1907 provision mas made for the appointment of a Resident
Commissioner, a Government Secretary and Assistant Commissioiiers".
IO. In 1921 an Advisory Board consisting of nine European members
elected by the European residents las instituted administratively. to
advise the Resident Commissioner in regard to affairs affecting the

646-656.Brifish CenfralAfrica OrdeririCouncil, rgoî. in SfatePapers, Vol. XCV, pp.
The Nyosalorrd Order in Council. 2907. in Sfnfs Popcrs. Vol. C, pp. 94-99,
Vbid., sec. 8. p. 96.
' Royal Insfruclionr. 1907, in The Conslitutiar of Al1 Couniries, Vol. 1,pp.
537-538.
Colanial Reports, Nynsnlatzd, 1937, NO.1885, p. 5.
Ibid., p6.
' Colonial Roports, Swaziland, 1938, So. 1921, p. 3. Vide also LordHiiley, iVafiue
Adminislralio+t in Brilish African Territories, PartV (1953). pp. 361.3%.
Colonial Reports. Swnailond, 1938. No. 1921, p. 3.
The Swaziland Orderin Council.1903, inSfatePapers, Vol. XCVI. pp. i126- 1129.
'O Ibid., sec5.
" Ibid.,15206.sec. 2.in Srotc Popers, Vol.XCIX. pp.863-564.
IZColonial Reports. Suiaailand. 1938. iYo.1921. p. 4. COUNTER-h1EMORIAL OF SOUTH AFRICA 493

European resideuts '. In regard to Native affairs. an Order in Council
of 1903 required tlie Governor. in issuing proclamations, to respect
Native civil laws, except in so far as "incompatible with the due exercise
of His Majesty's power and jurisdiction, or clearly injurious to tlie welfare
of the said natives" 2. Furtheriilore, in dl matters affectiiig Native
interests, the centrai administration usually consulted the Paramount
Cliief, together with one or other of the two traditional Xative bodies,
viz., the inner council (Liqoqo), or the "national" council (Libandhla),
wliich consisted of al1Chiefs, councillors, headmen and al1 adult males
who cared toattend 3. This consultation was purely a matter of practice;
the Native bodies themselves did not receive any statutory recognition
nntil afterthe outbreak of the Second World War '. UD to that time.
t1ii:reiorc.tl~c S:iri\.cs iiiS\v.?ril:.iiJ wlio iiirqjri hnJ iiiiiiil~crc~Ijj.270
uut of thc '1'~rritur~'stotal p,>pulstion of rju.713 Iiiid liiid iio ~Jirect

parricil~litioiiii tliiicntr~l g6vernini:nt of tlic Territur'..
Basutoland

II. ln 1884 the British Governmeut appointed the High Commissioner
for South Africa to exercise al1 legislative and executive authority in
respect of Basutoland 6. In 1890 officia1recognition was given to the
traditional Uasuto Council (the Pitso). but purely as a consultative
body witli no legislative or executive responsibility '. The Council at
first consiste<l of 40 members selected by the Paramount Chief arid
approved of by the Resident Commissioner, who was alsoempowered to
appoint five additional inembers 7. hlembership was increased in 1903
to 100, of whom five were nominated by the Resident Commisçionerand

the rest by the Par:imount Chief, subject to the Commissioner's ap-
proval8. The Council received statutory recognition in rgro9. but
remained a ~urely advisory body throughout the period under considera-
tion '0.Towards the end of this period there were approximately 559,273
Natives, 1.434 Europeans and 1,604 Coloureds and Asiatics in the
Territory 1'.A system of "indirect mle" was introdiiced in 1938.but only
implemented alter the outbreak of the Second World U'ar 12.

Bechuanaland
rz. The population fiffures for Bechuanaland in 1936 were 260,064
Natives, 1,8.. Europeans, and . ..- Coloureds 13.

'Hailey. Nalive Adnriiiistralion, Part V, pp. 377-378 and Colonial Reports.
Suiaailnnd, 1938, No. igzr, p. 4.
The Swaziland Order in Council, 1903, sec. 5,Slale Papers. Vol. XCVI. p. 1128.
' Hailey, Native Administrafion. l'art V, p. 357.
' Ibid., p. 388.
' Colonial lleports, Swzila~d. Xo. 1921, p. 5.
Basafoland Order in Council, r88+, in S.X. & O., Revised (1948). Vol. 111,
PP. 79-80.
' Basutoland Council. Report on Conslitulionol Refornr and Chieflairrship Affairs.
Basutoland Constitutional Handbook, p. 28.
Ibid., p. 31.
'OIbid.. pp. 31-32.
Kuczynski. op. cil.. Vol. II, p. 23.
l2 Basutoland Council, op. cil.. pp. 38-42.
'$ OfidialYear Book ofIhe Union ofSouth Africn andof Basuloland, The Bechuona-
land Profectovafe. and Swnailand, No. 2% (1g41). p. 1rg3.494 SOUTH WEST AFRICA

13. By 1890 British jurisdiction had been established over the terri-
tory ', and in 1891 provision was made for its administration through
the British High Commissioner for South Africa Z. In issuing procla-
mations for the Territory, the High Commissioner was bound to respect
Native civil laws and customs, "except so far as the same may be in-
compatible with the due exercise of Her Majesty's power and juris-
diction" ).
14. In xgzo two Advisory Councils were established by means of
administrative orders '.Firstly, there was a European Advisory Council,
consisting originaiiy of six members elected in six electoral areas, the
membership being increased to seven in 1927 5.The function of the
Council was to advise the Resident Commissioner on matters directly
affecting the European residents of the Territory, and the franchise was
confined to British subjects of European descent and aliens of European
parentage who had resided in the Territory for at least five years
This Council only received statutory recognition after the Second World
War Secondly, there was a Native Advisory Council, consisting of a
maximum of30members, fivebeing nominated by each ofthe six tribes in
the Temtory, "according to their custom" % In practice the members
were headmen, or, in a few instances, persons of standing described
as Councillors 6.The function of this Council was "to discuss witli the
Resident Commissioner aii matters affecting Native interests which
the members desired to bring fonvard, especiaiiythe administration ofthe
Native Fund" '. During the period under consideration, therefore, the
Natives of Bechuanaland had no direct participation in the central
government of the Territory.

II. BRITISH CONTROLLED TERRITORIES IN EAST AFRICA

Kenya

15. The population of Kenya was estimated to be 3,365,888 in 1938,
of which 3,280,774 were Natives, thus leaving a balance of some 85,000
Europeans, Asians and others 8.
16. In 1895 the responsibilities of the Imperia1 British East Africa
Company in tlie Territory of Kenya, where it had assumed control in
terms of a Royal Charter, were transferred to the British Government 9.
Kenya was then knowvn as the British East Africa Protectorate, and
became the "Kenya Colony,and Protectorate" in 1920 'O.In 1906 a
Legislative Council, consisting of six officia1members and two nominated

'British Order in Council. 1890in Statc Pnpers. Vol. LXXXII, pp. 1061-1062.
'Ibid., secq.p. 810.le Papers, Vol. LXXXIIIpp. 809.812.
'Hailey. Native Administraliati. Part(1953).pp. 318.320.
'Ibid.. p. 3rg.
lbid..p. 318.
'Ibid., p. 138.The Native Fund was derived from the praceedsof alocaltax,
and earrnurl'edfor local developrnent.
Colonial Reports. Kcnya Colay and Pvot~ctorale. 1938,No.1920,p. 10.
Central OfficoefInformation, Kenya. Pamphlet No. fi49 (rg6o)p .p. 2-3.
'OThc Kcnyo (AnnexntionJOrdcr in Council. r9zo. in SInte Papcrs, Vol. CXIII,
PP. 74-76. COUNTER-MEMORIAL OF SOUïH AFRICA 495

unofficial members (Europeans), was established for the Territory'.
Thereafter the membership of the Council was increased from time to
tirne 1.UnofficialEuropean members were elected to the Council for the
hst time in 1920, when there were II such seats '. The franchise was
confined to British subiects of Eurouean descent 2.At the same time the
officialinc.inbrrshil> w& :ilsu incrc;iseciro preservc the offizi:,lmaloril)..
0112 Europcaii iiieniber wu nuiiiiii:it~<lLIrliç Govcrnor to represeiit [lie
Native coÏmmunitv 3.In 1024 ~rovision was made for the elëction of 17
, ...
rneiiibcrs,\,IL..II ~IUIC>~~.~ ~VC~,Indians to rcprescnt [lieintcrcsts of th;
Indian cornmunit\, :ind one Arab to rcpre. .t thc iiltercsts of tl~c.Aral>
community +.
17. As from 1925 the supreme executive power in the Territory ,was
vested in the Govemor. who was advised by an Executive Council of
seven ex oficio memben and ~ ~ ~ ~h~ ~ ~ficia.~and unofficial members
& might be appoi"ted 5.

The membership of the Legislative Council was again increased in
19~7,~.It then consisted of the Governor, II ex oficio members, nine
nominated official members, II European elected members, five Indian
elected members. one Arab elected member. and one (European) nomi-
nated unofficial member to represent the interests of the African com-
mnn?ty '. In 1938 a second uiiofficial member, ako European, was
nominated to represent African interests, and the officia1representation
further increased to preserve the officialmajority %.

Uganda

18. In 1938 it was estimated that there were 3,725,798 Xatives in
Uganda, as against 2,282Europeans and 19,141Asians 9.

19. Uganda became a British Protectorate in 1902 'O. It waç adminis-
tered by a Commissioner until 1907. and thereafter by a Governor.
Executive and Legislative Councils were first established in 1921 ". The
Executive Councilconsisted entirely of ex oficioand officia1members, and
remained so constituted until after the Second \Vorld War 12.TheLegis-
lative Councilat first consisted of four officialmembers and two unofficial
appointed members but by 1938 these mcmbers had been increased to
seven and four respectively 13. The Indian community was offered one

' Central Officoef Information, op. cit.P. 17.
Hailey. An Atrican Survey (r9G). p. 296.
Colonial Reports. I<cnyeColony and Profecforafe.,931, No. ,606. p. 5.
' Legirlative Council (Amendment) Ordinance, rgz4,in Colony and Protectorafe of
Kcnyo, Ordinnncas ~pîq, Vol. III, pp.1.1.
Addiliaal Royol Instrudiar. C.N. So. 6,. in Colony and ProlecloratofKenya.
P*oclamafias. Rules and Regulafias, Vol. V. pp. 32-35.
Additional Royal Iasfrudlons, C.N. No.248, in Colonyand Prolecto?afeofKe?va.
Procl<imations,Rules and Regulafions, Vol. VI (New Series). pp. 524-528.
' Ibid., p. 526.
Central Otliceof Information. Ihnya. Pamphlet Xo. R4489 (1960). p. 17.
Kucrynçki. op. cit., Vol. II. pp. 239and 25r.
'OThe Ugonda Order in Council, 1902. in SfnfcPopers. Vol. XCV. pp. 636-646.
Ibid., 1920, in Stafc Papers, Vol. CXXIII, Pari 1, pp. 105-III.
l2Central Ofice of Information, Uganda, Pamphlet R53r6 (1962). p. 4.
" Ccntral Office of Information, ConatitufionnlDcvelopmenf in theCo'mmaw~alth.
Part II. British Dependencies (1950). p.zz. -196 SOUTH WEST AFRICA

representative on the Councilin 1921,but initially declined to co-operate
in nomination '.However, one Asian was appointed to the Council in
I~zG, and a second'as from 1933 Z.Al1the other members were Euro-
peans.
zo. Here also indirect rule was systematically practised in Xative
administration, the system being differentiated in order to fit in with the
: differing traditional systems, viz., centralized kingdoms in Buganda,

Biinyoro, Toro and Ankole, and decentralized organizations based on
small villages and clans in other provinces
Taitganyika

21. Tanganyika, which formed the major portion of the former
German East African Protectorate, \vas after the First \,Vorld War
administered by Great Britain under a mandate. Its population in 1938
was estimated at 5,26o,4S4, of which 5,217,345 were Xatives, 9,165
Europeans and 33,974 Asiatics 4.
22. In terms of a British Order in Council of 1920 5, Tanganyika was

to be administered by a Govemor assisted by an Executive Council
composed of four officiais 6, the number being increased to six in 1926 '.
In the same year a Legislative Councilwas constituted, consisting ofthe
Governor. 13 officialmcmbers andnot morc than ten unofficialmembers
These members were al1appointed by the Governor and during the whole
of the perio~lunder consideration the legislature contained no elective
element.

23. With rcgard to the unofficial members of the Legislative Council,
the British Government in 1926 reported to tlie Lcague of Xations as
follows:
"The unofficial members are nominated by the Governor without
regard to representation of particular races, interests, or public
bodies. . .Tliere is at ~resent no native member of the Council. In

this connection the ~&ernor at the opening meeting of tlie Legis-
lative Councilon the 7th December. 1~26,stated as foiiows:
'The native comm&nity cannot bé directly represented because
for the present a native cannot be found with sufficient command of
the English language to take part in the debates of the Council;
indeed to iinderstand what is said. I speak now, of course, of natives
of standing who'could speak on behalf of the various tribes of,the
country. But I do not by any means regard the large body of natives

as being altogether unrepresented on the Council. Their interests
are directly in the hands of the Secretary for Native Affairs, the
- -Chief Secretary, and the Governor himself' '."
' hpter. D. E.. The Polilical Kingdom in Ugnndn (1961). pp. 163-164.
' Central Officeof Information, Uganda. I'arnphlet A'o. RgjrG, p. 4.
' Halley, Naliva Adminislrntion, Part 1, pp. 49-50; Colonial Reports. Ugando
- ~ ~ ~ ~~~~~~,<., rr. , -.
' Kuczynski. op. cil.. Vol. II (1949). pp. 343 and 353.
' The Tangnmyika Order in Coun~il. 1920, in Slota Papers, Vol. CXIIT. pp. 97-11 1.
6 Rc~,~t b~, --~. ~~itn~.... ~overnment to th8 council oflhc Lcae- . of
h'ations on the Administration of,Tanganyika Tenilory for the Ycar 19'24,p. 5.
' Report by His Brilannic Majcsly's Govcmment to the Council of the League of
Nations on the Administration ot Tanganyika Territory for the Year 1926, p. 5.
The Tangn>zyiko (Legirlatiuc Council) Ordar in Council. 1926, in State Papers.
Vol. CXXIII, Part1. pp. 135-142. COUNTER-MEMORIAL OF SOUTH AFRICA 497

24. As from 1930,two or three of the ten appointed unofficialmembers
wereusuaüv Indians '.but as far as Native reuresentation was concemed.
the positio;~ rem.tiiit!d uiichange~l tlirougho;it ttiis penod '.,in oàici;ll
yubliu~tit~nin 1930 nicntioii~d a coiitcniplatioii of rcserving a proportion
of scats for Afrizanj "\i.I~~isiiitabl~ uersoiij bci~ine a\,~111ablc l.'but bv
1938the matter tiiid iiot proccédcdany further. In Sati\fe:administr~itiok
the syjterii of indirect rulc \vas ~)ractised.in\,ulving extensive use of the
traditional Native authorities 3.-

British Somaliland

25. U!. 1938 there werc only 80 l?uropeans in Soinalilnnd. wliile the
Sati\.c 1)<q1uIntion \v,is eitiniatecl:it344,700 '.Until 1329 the 'l;rritory
\vas adiiiiiiistered bv oiticialsnoinin;ited from timd IO tiiiie bv ttie Ilritisli
Govemment for th& purpose '. A Govemor wasthen appo&ted to take
charge of the administration of the Territorv 6.He possessed leaislative
uowërs. but was bound to resDect existin; Nativê lc7s and &stoms
"excepi so far as the satne ma) be opposed to justice or morality" '.
At the time of the Second World War the Temtory had not yet acquired
either an Executive or a Legislative Council B.

III. BRITISH CONTROLLEL)TERRITORIES IN WEST AFRICA

GoldCoast

26. In 1874 the Gold Coast Colony was constituted as a distinct
administrative unit and Executiveand Legislative Councilswere estah-
lished for the Colony 'O.The Executive Counul had no jurisdiction over
theadjoining areas of Ashanti and theNorthern Territories until 1934'l,
while the Legislative Council's jurisdiction remained confined to the
Colony until after the start of the Second World War IL.The Govemor
legislated by proclamation for Ashanti, the Northern Territories and
Togoland ".

27. By the heginning of the Second World War the Natives of the
Gold Coast had not yet been representedon the ExecutiveCouncil 12,but
the first African member of the Legislative Council had been nominated

Report $0 theCouncil O/fhaLeague of Nations ontheAdmiriisfr~tion O/Tanganyika
Tcrritory for the Yen? 1930, p.8.

' TheS>maliland Orderin ~oh&il, 18gg.'in SfafePopers. Vol. XCI, pp. 1114-1129.
The Somaliland Order in Counçil. rgzg, in Stote Pafiers. Vol. CXXXII, Part 1,
~P- 22-39.
' Ibid., sec. 15, pp. 28-30.
Colonial Reports, Somaliland 1937. So. 1880.p. 5.
* Hoyal Charter of24 July 1874. in Stale Papcrs. Vol. LXVI, pp. gq2-947.
'OIbid. p. 944: Brilish Order i» Couacil, 18. . in State Papcrs, Vol. LXVI.
PP. 957-958.
" Elias. T.O.. Ghana and Sierra Leone :The Development of their Law and Con-
stitutions (1g62) pp. 31-32.
IZIbid.. p. 37. SOUTH WEST AFRICA
498

as far back as 1889 '. In 1897 the Legislative Council consisted offour
officia1members. the Chief Tustice and three nominated unofficial mem-
bcrs '.In i9rU tlie rotal iii;iiibcrsliip Ii:i<bccii iricre~jcd tu ?O;of tliiire
iiinewcreuiiotlici:ilnomin;itç<lincmbt:is. tlir~e [Orepresent ~lit.Europeai~~,
.~~--~ ~he Parsniount Cliief:aiidthrec tlie eJu~.ated :\frii:iiii-the Sati\.c
representation therefore forming slightly less than one-third of thetotal
membership 2. Under a new constitution of 1925 there were 15 officia1

and~ ~-A unofficial members on the Council '. Of the latter number five
WL.~,. iiomin;ited Eiir(~pcaiis reorejenting Iiirop<~aiiintcnsts, xiid six
wcre noniiii;itvd :\fri~~ii reprcicii1:irivii. 1ti.u froni ?;ILIIsf thc tiirce
.I'r~vi~ ~s in [lie Lu~~nv arc;i J.The reinaiiiiiii- tlireéuiiofici~l iiiembers
were municipal members represeiiting the towns of Accra, Cape Coast
and Sekondi '.These members (who were usually African ') were elected,
the franchise being based upon a property qualification 8. The Govemor
with eight executive heads brought the total membership of the Council

to 38. The principle of an officia1majority was thus retained throughout
the period under considerrition '.
2s. .\ systi:in of iiidirc~t rule \i.;ipractised IIIloc;rl;idniiiii~trattioiiiii
the provinces in an eMor~to safegii:ird rlie dc\~elol>riiciio tf self-jio\,erning
iiidigciious in>tiriitioni E~IIL :jIilii~friiincy i~ilclcustum:iry Ia\vs ".

Nigeria

24. The port :inJ ijl;<iiilof 1.agos. annc-cd by Grr:tr I3rit:iiii iiirYoz.
twre ndrniniitercd by a (;uvcriior niid 1.t:gislarivt:i:ouiiiil '..'TIicC: ouncil
coiisistcd eiitirel\. of Ilritish offiiials and acteci inïrelv ai :in advisor\'
bodyto the ~o;eior ".The Council remained in exictence until 1~22,
when it consisted of six officia1members and four nominated unofficial
members. two of whom wereAfricans ".

30.In 1914Lagos and other territories over which control had been
assumed by Charter Companies werc amalgamated in a united Nigeria IZ.
A legislative body, called the Nigerian Council, was then established.
consisting of 36 members appointed by the Governor 13.There was a

Elias, op. cit.. p. 32.
Ibid., p. 3,.
3 Royal Instructions, 1925. in The Constitutions 01 Al1 Cou~trier. Vol. 1 (1938).
p. 466:The Gold Coast Colony (Legislative Car~ncil) Order in Cot<ncil, 1925, in
Stal~Papers. Vol. CXXI. pp. 208-230B ;ritish Lellers Patent. 1916, in Stnt~Papers.
\'O]. CX. pp. 276.281.
' The Gold Coast Colony (Legislotive Council) Order in Council. 1925.in State
Papers. Vol. CXXI, sec. 3,p.210..
' Ibid., secs.16-19p .p.214.217.
Ibid., sec.20. ... 217.218.
' Elias, op. cil.. p. 33.
The Gold Caart Colony (Lcgislntive Coundl) Order in Coidnca'l1 , 925.in Sfafe
Papers. Vol. CXXI, sec. 23,pp. 219-2-0; Royal Insbuctioris, rp5. in Ths Constitution
of AI1Courttries, Vol. 1 (1938)p.. 466:British Letfers Pale,rt, 1916, in Stala Popers,
vol. CX. pi>.276.281.
Elias. op. cil.. pp. 37-38.
'OHaiicy. h'otive Administration, l'art III (1951) p.24.
" Padrnore G..Parr Africonisrn or Commutiism?. p.268.
" Centra lthce of Information, Nigcria: The Afaking of a Nolion (1960)p.. 8.
" Ibid.. p.28. COUNTER-MEMORlAlS 'OUFTH AFRICA '499

majority of senior British officiais, six unofficial European mernbers

representing foreign vested interests, and six Africans (mostly chiefs)
representing tribal communities '.The Nigerian Council and the Lagos
Legislative Council functioned separately until 1922 2.

31.In that year Nigeria received a new constitution. An Executive
Council was established, consisting entirely of ex o@cioand norninated
official members 3,the Natives not being represented on this body nntil
after the beginning of the Second \Vorld War '. The new Legislative
Councilhad 46members, 27being officia1and 17unoficial Of tlie latter

13, of whom 6were Africans 6,were nominated by the Governor and four
(Africans) 7 aere elected to represent the municipal areas of Lagos and
Calabar Franchise was open to adult British subjects and Natives of
Nigeria, but was subject to an income qualificationg. The nurnber of
registcred voters in the first elections in 1924was 1,o5j out of a total
adult African population of 126.1oS '0.The Council had no jurisdiction

over the Northern Provinces, for which the Governor-in-Council was
the legislative authority ".

Sierra Leone

32.The area of Sierre Leone, whicb had initially been occupied by
a Charter Company, was transferred to the British Crown as a Colony
in 1808I. t was administered by a Governor assisted by eight Councillors l2
until 1863, when separate Executive and Legislative Councils were set
up '3. The latter Council contained a minority of norninated unofficial

mernbers. It was reconstituted in 1874 '4, and in 1923the nurnber of
nominated unofficialmernbers was increased from one to five 15.
33.In 1896a protectorate was proclairned over the hinterland of

Sierra Leone '6.It was administered by fivedistrict commissioners.
34.In 1924 a new constitution was granted to the Colony ", new.

'Central Officeof Informntion. op. cit.p. 28.
1 Padmore, op. cil.p.268.
Royal Inrlrudions, 19zz. inConstilulions of Ail Cmintrics. Vol. 1 (1938). pp.
523-524; Ezera. K., Conslitutional D~velopmcnf in Nigeria (~960). pp. 21-28.
*Central Onice of Information. op. cil.p. 29; Ezera. op. cit., pp29. 32.
The iVigeria (Legirlalive Council) Order in Council1922. in Stule PUPCIS. Vol.
CXVI. PP. 249-259.
Wheare. J., The Nigcrian LegislafivaCouncil (1950). p. 39.
Ibid., p.33.
8Th6 Nigeria (Legislafiva Council) Order in Council.1922. inSlale Popers. Vol.

CXVI. secs.6 aiid14. pp. 251. 253.
Ibid.. sec.20. p.254.
'OPadmore. op.cit.. p269.
" Hailey. Nalive Adminislralion (1951).Fart III, p.3;Central Ofice ofInforma-
tion. @. cil..pp. 28-29.
l2T-lias,op. cil.pp. 223. 227.
Ibid.,p. 239.
1' Brifisk Charter dnted 17 Dec. 1874, in Slalc Pepers. Vol. LXVI. py. 948-953.
''Elias, op. cil.p.246.
l6Ibid.,p. 243.
17Ldlers Pairvit. 1924, in S.R. & O. Revised (1948). Vol. XXI, pp.1-6. Sisrra
Leone Prolecfornfe Order in Council. 192#, in S.R. & O. Reuiscd (1948). Vol. VIII.
PP. 384-389.500 SOUTH WEST AERlCA

Executive and Legislative Councils being established and their juris-
diction extended to the Protectorate territorv '.The Executive Council
coiiipriscd the Go\,criior and sis ex oficto m&nbcrs 2. t\fricans uterc not
rcpr~sentecloii tliis i:ouncil prior to tlie Secoiid \i'ürld \\'II 3.T~L.Legis-
lati\.e Council consijtt<l of 11 officiai mernbers. tliree elerted uiiofficid
members, and not more than seven nominated unofficial members, of
whom three had to be Paramount Chiefs of the Protectorate'. Of the
ten unofficialmembers. six were Africans 4.The three elected members
wereelected intwo electoral areas, viz. the urban and the rural districts

The franchise was granted to adult male British subiects and Natives
of Sierra Leone, sübject to certain property, incornéand educational
qualifications 6.In 1940a total of5,164voters qualified forthe franchise 7,
out of a population which in 1939 was estimated at about 2 million
of which probably not more than 1.000 were Europeans 9.

BritiC sameroons

35. This Territory was a portion of the former German Cameroons
and was placed under the Mandate of Great Britain afterthe First World
War. For economic and aeogra~hic reasons the Northern and Southern
partsof the Territory ive; a8m;nistered as intc ral plrtsof the Xorthcrn
and Iktern pro\.inccs of Sigcri;, respcctivtly '.,1hus. legislation for tlie
soutlicrii section uf the Territor\ \vxs<:iiiiiteJbv ttlc Goveniur of S1et:ria
with the advice and consent of the Nigerian fegislative Council, in the
same way as for the Colony and Southem provinces of Nigeria, while
1eEslative authoritv over ihe northem seciion was eserci'ied bv the

Govemor of Nigeria, as for the Northern provinces of that Territ6ry.
However, the Caineroons had no representationwhatever on the Ni~erian
Legislative Council until the Second World War lZ

Britis Togoland

36. After the First \Vorld \Var the westem portion of the former
German Togoland was placed under the Mandate of Great Britain. The

' Elias, op. cil.. p. 247.
Lelters Patent1924, in S.R. & O. Revired (rgq8). Vol. XXI, sec6. p.2; Elias.
op"lia,., op. cil.. p. 251.
' Th6 Sierra Leone (Legislative Council) Ordcr in Council, 1924.in Slnta Pnpers.
Vol. CXIX, sec.4, p. 6.
' The Sicrra Leac (Legislativc Council) Order in Council, op. cil., 7e(1).p. 6.
Ibid., secs. 2(1) and 24 (1).pp. IO-rr.
' Hailey, Nntiv~ Admi+iistrntion and Political Daoclopm~ntin Britirh Tropical
Africa. 1gqo-rg42, p.81.
Kuczynski, op. cil.. Vol. 1 (igq8). p. 161.
Ibid., pp. 189-191; Elias. op. cil.217.
'O The British ComeroonrOrderin Council, 1923.in Sintc Papers, Vol. CXVII.
pp. 60-63; Report byHir Majedy'r Goucrnmtntto lhcCouncil of theLcagus ofNations
a th Administrafia ofthe British Canreroonsfor the Ycor1928.p. 4.
" The Nigevin (Lcgislatiuc Council) O~dcrin Council,1911, in Sfaie Popcrr, Vol.
CXVI. sec. 24, pp. 255-256.
lZ Wheare, op. ci!., p. r99. COUNTER-MEMORIAL OF SOUTH AFRICA 501

northern section of the Territory was administered by the Chief Com-
missioner of the Northern Territories of the Gold Coast ' as an integral
part of the Gold Coast Dependency 2, while the southem section was
made a district of the Eastern Province of the Gold Coast Colony. Legis-
lative enactments made for the Northern Territories by the Governor of
the Gold Coast appliedalso in the northern section of British Togoland,
but the Governor could also legislate specially for this latter area 3.Simi-
larly. in the soutliern section of the Teiritory, the legislative enactments
of the Gold Coast Leaislative Council applied but in addition the Gover-
nor was empoweredjo legislate specialiy for that area 3. The local ad-
ministration was carried out as far as possible through Chiefs with the
assistance oftribal authorities 3.

37. The territory of Gambia comprised a Colony and a Protectorate.

The total population in 1931 was estimated at 199,520 of whom only
274 were Europeans '.The Colony was transferred to the British Crown
in 1821and declared a separate Colonywith its own legislature in 1888 5.
In 1893 provision was made for the Legislative Council of the Colony
to legislate also for the Gambia Protectorate 6.

38. Throughout the period before the Second World War neither the
Eaecutive Council nor the Legislative Council of Gambia contained
any elective element; al1 members of both Councils were appointed by
the Governor 7.In 1938 the Executive Council consisted of the Colonial
Secretary and three other senior officials, while the Legislative Council
consisted of tlie Governor, the Colonial Secretary, five officialmembers
and four unofficial members

39. A system of indirect rule through Chiefs and Commissioners was
introduced for the Gambia Protectorate in 1844 , .9. This svstem was de-
firi<idirigrentcr Jc,r:iit~!.rii.,)0rdiri.tnzcs [~:issr;<ii 1733 lu.n'hic11were
dircctcd to\i.;irrls th,. (Ir.\.t:lopiiicntof lucnl s,-ll-go\~criiiiienrb!. v:irious
S;itive nutliorirics. such as tlie Hç:id Cl~iefs.under tlic advicc and suurr-
vision of the Commissioners, who represented the Governor 'O.

* British Sphere of TogolnndOrdcr in Council, 1923. in State Papsrs. Vol.CXVII.
pp. 116-121.
P.M.C.,Min.V.p.42.
' Report of Hir ~Majesly'sGovernment to th6 Council of the LeaguLofNations on
the Administration ofTogoland unde* Brilish Mandate. 1928. p. 5.
' Kuczynski, op.cil.. Vol. 1 (rg48). pp. 337, 347.
' British Ordrr in Council. 1893. in Starc Pnperr, Vol. LXXXV, pp. 1251-1253.
' Brilish Lelters Patent, 1888.in Slnte Papars. Vol. LXXXI. secs. 7 and 8. p. 142;
Lelters Patent. rgrg, secs. 6 and 7, in The Conslitulionr O/ AI1 Counlrios. Vol. 1
(1938). pp. 453-454; Royal Znslrudions, 1915 (as amended 1928). sec. 4.
Colonial Reports. The Gnmbia. 1938, No. r893 (1939). p. IO.
Ibid., pp. IO-rr.
ID Ibid.. p.II.502 SOUTH WEST AFHICA

IV. FRENCH CONTROLLED TERRITORIES

French Vi7est Afirica

40. The territories comprising French West Africa, viz., Niger,
Dahomey, Upper Volta ',Ivory Coast, Sudan, French Guinea, Mauritania
and Senegal, had al1been placed under effective French control by 1890.
In I~OA the territories were reor~anized into a federation under a Gover-
nor-General2, each territory bgcoming a province headed by a Lieu-
tenant-Governor '. The Governor-General was assisted by a coitseilde
gouuernement,which had consultative powers only 4, while each Lieu-
tenant-Governor was assisted by an Administrative Council, a purely
advisory body (except in the case of Senegal, the position of which is
dealt with later). The provinces (escept for Senegal, Niger and hlaurita-
nia) also had representation in the Higher Councilof Coloniesin France 6,
which was also a purely.consultative body '.On the whole, therefore (Le..

again excepting Seiiegal), opportunities for participation by tlie popu-
lation in the processes of government were limited to membership of
consultative bodies.
41.The manner of filling the positions on the consultative bodies
varied between the ~rovince~~-In Nieer and illauritania there was no
franchise-the ~dmikistrative ~ounciïs consisted on1 of officiai asnd
nominated unofficiai members 8. and these in turn e iected tlieir repre-
sentatives in the conseil de gou;ernement 9. In the other provinces (iave
Senegal) there was a limited franchise. The limitative feature enerally
was French citizenship, whidi was not enjoyed hy the Natives $, escept
hy naturalizatiori ".Thus in tliese provinces representatives in the Higher
Council in France and in tlie conseil de gouuernementwere elected by
French citizens 12.For their Administrative Councils, however, some
members were also appointed and some elected by Chambers of Com-
merce and Agriculture and by a special electorate consisting of specified
categories of non-citizens (such as holders of certain public positions,
traders. certainproperty owners. etc.) 13.
42. The position in Senegal was for historical reasons different from

that in the other provinces. Al1people born in the four communes of
Senegal (Gorée,Dakar, Rufisque and St. Louis). including Africans,

' Upper Volta ceased to exiçt as a separate entity in ,932. when it was absorbed
into the other territories adjoi- .g it. (Vidc Thompson, V. and Adloff, R.. French
Wcst Africa (1958). p. 23.) '
Thompson. V. and Adloff. R.,French West Africa (ig58). pp. 22-23.
'Robinson, K.. "Political Development in French West Africa", in Africain the
Adloff. R.. French West Africa,p. 23.1955). pp. 140, 147-148; Thompson, V. and
'Robinson, Africo inthe Modern World, ppp.148-rqg.
Ibid., pp. 147-148.
Thompson, V. and Adloff. R., French West Africo (1958). p. 44.
'Deschamps, H.. ThsFrench (ilrio(1956). pp.JZ-33.
Robinson, Africn inthe Modern World, p. 148.
Ibid.. pp. 148-149.
'ODeschamps. op. cil.pp. 39-40.
" Ibid., p. 40.
'=Thompson, V. and Adloff. R., French West Africn (~ggS),p. 44.
" Robinson, Africn in the Modcrn World. p. 148. COUNTER-MEMORIAL OF SOUTH AFRICA 503

enjoyed French citizenship '. The inhabitants of the communes had
eversince184Senjoyedtheright to elect a deputy to the French Chamber

in Paris and in 1914 Senegai's first African deputy was elected 3. In
1879 a General Council was established in Senegal, consisting of re-
presentatives of the four communes elected by the citizens, and having
limited legislative and administrative jurisdiction over the communes
only '. This was replaced in 1920 by a Colonial Council, with limited
legislatire jurisdiction over the whole of Senegal Sorne of its members
iirere elected by the citizens and some by the Native Chiefs acting as
an electoral college. but since 1925 representatives of the citizens were
in the majority '. In 1939 the franchise for members of the Council was
extended to French subjects who had completed their military service.
They could elect 18representatives, as against 26citizens' representatives

and 18 Chiefs'representatives '.
43. Despite the special treatment of Senegal, the participation of the
Natives of French \\'est Africa in the processes of government waç ex-
tremely limited. Apart from the consultative nature of the various bodies
referred to above, only a very small number of Africans became citizens
and thus acquired the right to vote. By 1936, out of a total population
of 14.5 million some 78,000 were citizens by virtue of their connection
withthe communes, while about 2,000 perçons al1 over the Federation

had acquired citizenship by naturalization B.

FrenchTogoland

44. The territory of Togoland under the French Mandate was ad-
ministered by a Commissioner Between 1933 and 1946 it was hrought
into close administrative association with French West Africa 9. Four
Advisory Councils were introduced in 1922 " whose members were
elected by electoral colleges '1.

French Equalorial Africa

45. French Equatorial Africa comprised the territories of Gabon,
Oubangui-Chari. Tchad and Moyen-Congo. From 1910 until after the
Second World \Var the basic structure of the federation of these terri-
tories remained unchanged '2.Beforethe Second N'orld War only Senegal
in French West Africa sent a deputy to the FrenchParliament 'j.French

' Robinson, op. cil.,pp. 143-144: Thompson. V. and Adloff, R.. French WLS
Afrira (1958). pp. 108-rog.
Thompson, V. and AdIoK. 1C..French Ives1 Africa (1958).p. 108.
' Ibid.,p. 108.
' Ibid.,pp. 1o9-11o: Robinson, Africain theModern tVorld, pp. 145-146.
Robinson, Afriço in theModern World, pp. 145-r46.
Ibid,,p. 146.
' Ibid.:Thompson, V. and Adloff. R.. French lVesl Africo (1958).p.irr.
Robinson, Africa inthe Modern IVorld. p. 147.
Hailey, An African Survey (r957).p. 333.
" P.M.C., Min., XV, p. 27.
Ibid..p. 133.
l2 Thampson. V. and AdIoK. R., The Emcrging Statesof French Equnlorinl Africa
(1960).P. 26.
'' Thompson. V. and Adloff, R., French West Africn (i958). p. 108. COUNTER-MBMORIAL OF SOUTH AFRICA 5"5

gatio~iiawçre iiilri:.lly çorisulttd on rn;ittcrs of budgets, public 1o:irismd
WOI~S'. but were not coiisidered a succçs; '. aiid Icll into disuse. lis the
timcof tlieSecond \i'orld \\;;ir tlierc \vas no resi~onsiblebody in existence
representing the population of Madagascar eithër formaiiy O; infomally =.

V. ITALIAN CONTROLLED TERRITORIES

51. Eritrea was until 1936 administered hy Italy as a Colony. The
administration was in the hands of a Govemor, who was responsible
to the Italian Minister for the Colonies,and who was assisted by a local
council consistine of the~hearis o.- drnartments. Ther- -~s no dir~ ~ ~e-
presentation of tvheindigenous peoPl~ in the government of the country,
althouch Native headmen and tribal Chiefs were used in local adminis-
tration'. In each of the seven principal towns local administration was
in the charge ofa European mayor who was appointed .. by, and responsible
to, the GoCernor '. -
52. In 1936 the Territory became one of the six provinces of Italian
East Africa. The Govemor ofEritrea became responsihle tothe Governor-
Generaland Viceroy inAddis Ababa 5. The system of govemment was
greatly centraliïed; the Governor-General himself held only limited
responsibility, most of the important questions bcing referred to Rome

Ilalian Somaliland

53. The constitutional position in thisItalian Colonywas substantially
the sarne as in Eritrea. The southern oortion of the Territorv had been
~idniiiiistérrdby ;i i;o\.ernor from i<;iot, tirid \r.licii Itnli:in autliority
\ras iniposed oii tlit iii~rrliernsection in r<jzj-r9zG% 11 \\.::i~liiiiiiistcr~<l
IJV ~.i\.ilioniin~ssion~rsin ~.ncliilistric~.\\.lisi.,.rt:rcsooiisil~lcto r1icGuvi:r-
nor6. The Territory formed part of the 1talia"'~ast Africa Colony
constituted in 1936 '.its Govemor becoming responsible tothe Governor-
General in Addis Ababa. who in turn was resoonsible to the hlinister
of Italian Africa in Rome 5.~ere also, therefo;e.~the ipdigenous popu-
lation had no participation in the central government of the Colony.

VI. BELGIAN CONTROLLED TERRITORIES

Belgian Congo

54. Until its independence in 1960, the Belgian Congo was for ail
practical purposes ruled directly from Brussels While certain functions

' Kent, R. K., From Madagascar loth8 Malagasy Republic (1962). p. 78.
Ibid.. p. 89.
' Encyclofinedin Brilannica, Vol. 8 I,s. ., o. 69-.
' Trevaskis, G. K. N.. Eritrea (1960).p. 27.
' Royal Institute of International Affairs. The Ilolion Colonial EmWrc IInforma.
tion Dept., Paper No. 27)(rgqo). p.37.
E~cy~I~p~cdiaBrilannrca. Vol. zo (1947). p. 968.
' IVide Charte Coloniale, Loi Sur le Gouvernement du Congo-Belge, 1908, in506 SOUTH \\'EST AFRICA

rested with the Governor-General. assisted where necessary by advisory
bodies, the indigenous population had no sav whatsoever in the govern-
ment of the country '.. . -

Ruanda-Urundi

55. This former German Colony\vasentrusted as a mandate to Belgium
in 1924. In 1926the Belgian King approved of an Act which made pro-
vision for the administration of the Territory asan integral part of the
Belgian Congo 2, but the legislative enactments of the Belgian Congo
were not applicable to tlie Territory unless specifically soprovided 3,and
the Territorymaintained its own budget. The Territory wasadministered
by a Vice-Governor-Genera tl . large extent on the samc basis asthe
Belgian CongoS, and thus without any participation by the indigenous
peoples in the central government.

VII. PORTUGUESE TERRITORIES

56. Portuguese temtories on the African Continent south ofthesahara

are Portuguese Guinea, Angola and hlozambique. Since the nineteenth
century these territories have been regarded as parts of Portugal 6.
57. The population was made up of two distinct juridical classes:
"citizens" and "aborigines" '. Europeans fell automatically into the
former while Africans and Coloureds could obtain the status of citizen
by s;itid!,ing the ncccis:ir! <~ti;ilili~~~iu~ Ii:.IIICaIdoption of ttii, I'iiro-
pmii ivny oflife.tlic :alnilitvtu spnik and ivrite Portuguese ;ind tlie posses-
sion of sonic trndi: ur calling fiiviiifirecognizcd liii:in<:inlstntui d.Speci:il
provisions protectcd the "Sativcs" or ":iborigines" ;ig.ainstabuse9 ancl
permitted thcir relnrion; tnter se to bc coverne~lbv \xti\.e or aclni~ted
laws and customs '0. -

58. Tiitlic nineteciitli cciitiir!tlii:tt-rritories werc :idininistered undcr
strict direct coiitrol. hiit enrly iii tlic t\vc.ntictlicciitury:Icontrnr!. trend
set in and coiitrol tvnz trnnsfcrred in wirt to the Coloiiial <;ovcrnors6.
Since 1926 the Governors-General and'Governors were assisted by local
advisory bodies called Councils of Government 1'.They were composed
of officiais and nominated members, and since 1930 also of members
elected by commercial organizations and municipal councils '2.Through-

Codesel Lois du Congo-Belc8.Tome 1 (3954). P.9; Hailey,An AfricanSuniq (1938).
pp. 206.213. .~ -
' 3Ierriam. 4. P.. Congo: Background ofConflict (i96r), p. r4.
Loi Sur le Gouvernement du Ruanda-Urundi, 1925. in Coder et Lois du Congo-
Belge (1954). Tome 1,p. 17.
Loi Surle Gouvernement du Ruanda-Urundi. igz5, op. cil., sec.3.
' Ibid., sec.1.
Hailey, An Africon Survey (r938). pp. 212-213.
Ibid. (1957). p. 228.
' Ibid...n. 2<-.2-"-.
Ibtd., p 23,.
Colonial Art, Art. 15, in Polilicol Cmlitutron of the Portuguese R~pdlic (2nd
ed.), p 66.
'O Ibid., Art.22. p.67.
'' Ibid.. p.,355.
l2Hailey, An Africon Suruey (2938). p. zrg. COUNTER-MEMOK IAFLSOUTH AFRICA 507

out the period under review there was therefore no direct or general
franchise in the territones, the only form of franchise exjsting at munici-
pal level, where two counciiiors were elected by the citizens of the area
and two by ecoiiomicorganizations or by the zo principal taspayers '.

VIII. SPANISH TERRITORIES

SpalrishGuinea

59. Spanish Guinea consists of Continental Guinea (Rio Muni) and
the islands of Fernando Po, Annobon, the Elobeys and Corisco *.

60. Throughout their occupatioii of these areas the Spaniards have
treated them as appendages of Spain 3.The territories wre administered
by a Govemor stationed at Fernando Po, with suh-Governors at Bata
and Elobey 4.Legislation \vas undertaken by decree of the metropolitan
Ministry 5. The local population therefore had no participation in the
centralgovernment.

IX. INDEPENDEXT STATES

Ethiopia

Gr. After Ethiopia had existed as an independent, absolute monarchy
for more than z.ooo years, a constitution was first adopted in 1931,

whereby the monarchy became a constitutional one 6.The constitution
created a Chamber of the Senate and a Chamber of Deputies '.The
members of the Senate were al1appointed by the Emperor from amoiig
the dignitaries wlio liad "for a long time served his empire as princes or
ministers, judges or army leaders" In regard to the Chamberof Deputies,
the Constitution provided that "as a temporary measure until the people
are capable of electing them themselves, the members of the Chamber of
Deputies shall be chosen by the dignitaries and the local chiefs" 9. In
fact there were no elections in Ethiopia prior to thesecond \Vorld \Var 'O.

Liberia

62. The Constitution of Liberia was drawn up in 1847and is to agreat

extent modelled on the Constitution of the United States of Amenca ".
The constitution provides that the delegates tothe House of Represen-

' Hailey, An African Surocy (1938). pp. zrg-216.
British Foreign Oflice, Peacc Handbookr. Vol. XX (rgr8-igrg). Doc. No. 13z.
r. ..
3 Hailey, An African Suwey (1957). p. 234.
Ibid.. p. 233.
' Ibid.,p.234.
Sandford. C., Elhiopin under Haild Selassie (1946p.46.
7 "The Constitution of Ethiopia" (1931). Chap. II, Art. 7, in Peaslee,A. 1..
ConsIbid., Art. 31p.i857. Vol. 1 (2nded.), p. 855.
Ibid.. sec. 32p.857.
'O Silkrman, L., "Ethiopia Elects". in The Lislsner.14 Kov. 1957.
" "Constitution ofthe Republic of Liberiaw, in Peaslee, A. J.. Conslitulioof
h'alionr, Vol. II (2nded.). pp. 586-594.508 SOUTH WEST AFRICA

tatives "shail be elected by and fortheinhabitants of the several counties
of Liberia" ' (i.e., the coastal strip stretching approximately 40 miles
inland). As a result. the tribal people living in the provinces in the
hinterland of Liberia, who constitute by far the greater portion of the

population ofthe country 2,were excluded from the franchise. However,
the Native tribes were entitled to send delegates to the Legislature (one
from each tribe which paid more than IOO dollars in tax per annum) 3,
where delegates had the right to discuss matters pertaining to Native
interests and to vote thereon 3. With regard to the Senate. the consti-
tution confined membership to inhabitants of the counties of Liberia '.
the hinterland was therefore excluded from representation. It has been

said that Liberia presented the paradox of being a Republic of IZ,OOO
citizens with I million subjects 5.

'Peaslee, op. cil..Art. z, sec.z of Legislative Powers as amended in 1849,
1861,1907and 1927. pp. 588-589.
Carter, G. M.. Africon One-Povty Staias (1962)p..356.
' Huberich. C. H.. The Polilical and LegislaLivaHislory ofLibevin, Vol. II (~947).
D. 1107.
"The Constitution of the Republic of LiberCa". Art. 2, sec.5 ofLegislative
Powerî in Peaslee, A. J..Conslilutiar of Nolias, Vol. II. 2nd edition (~956).
P 589.
' Report of the experts rlosi~natedby the Commirtcc of the Cauncil oflhc Leagdo
of Sntioiis. appointrd to study the prnlilem raiwil I>ythe 1.ibrrian Cuv<:rnn>ent's
request for sqristance. l'abersracctning Afluirsin L>bcrio. ULC. 1070--310~1034 Annex B

BRIEFSUMMAR YF THE CONSTITUTIOND AELVELOPMENT ISTHE SAME
COUNTRIE SFTER THE BEGINNING OF THE SECOND WORLD WAR

1. BRITISH CONTROLLED TERRITORIES IN CENTRAL AND
SOUTHERN AFRICA

SouthernRhodesia

I. In 1951 the income and property qualifications for voters were
increased ', by 1953 only 481 Natives had been registered as voters2,
although the Native population in 1951 waç estimated at 2 million, as
against 136,017 Europeans, 4,343 Asiatks and 5,964 Coloureds 3. The
establishment of the Federation of Rhodesia and Nyasaland in 1953
did not affect the franchise qualifications for the Legislative Assembly

in Southem Rhodesia ';but in 1957 a new system of franchise qualifi-
cation was introduced, providing for a voters' roll with "ordinary"
qualifications and a voters' roll with "lower" qualificatio=T.henumber
of"lower" roll voters who were entitled to be registered as such was
restricted to a maximum of 20 per cent. of the total number of other
voters 6.Under this system there were 67,132 registered ordinary voters
in 1959, of whom 1.157 were Africans and 64,280 Europeans, and 1,107
"lower" voters, of whom 876 were Africans and 173 Europeans '.These
arrangements did not result in any African members being returned to
the Assembiy.
2. Southern Rhodesia received a new constitution in I~GI~. The
executive authority is vested in Her Majesty the Queen and isexercised

on her behalf by a Govemor and Cabinet 9. For the Legislative Assembly
the "ordinary" or "A" roll and "lower" or "B" roll of voters were
retained, with broadly the same franchise qualifications asbefore,except
for a number of extensions Io.The Territory was divided into 50 con-
stituencies and 15 electoral districts: in the former the value of "B"
votes was to be calculated according to a formula based on the proportion
of "A and "Bo votes cast, while conversely in the latter the value of
"A"votes was to be determined on that bais ".The firstelectionsunder

' VideAnnex A. para.4.supra andLordHalley. AMAfrican Suwey (1957). p. 185.
Hailey. An Alricnn Su~ey (r957), p. 185.
OficialYcor Book ofSoulhcrn Rhodesia, Xoq (1952). p130.
' Ibid., pp34-35..
Ibid., 34.
' Ibid., p. 35.
The Southern Rhodesia (ConstitutioOrderin Council. 1961, Stnlulory Instru-
~ncntr.ig6r. No2314.
The Constitutionof Southern Rhodesia1,961,secs. 42and 43,Slafrfory In-
struments, 1961, N2314, Annex,p. 25.
laIbid.. SecondSchedulepp: 61-63.
Ibid.. para10.p.63.51° SOUTH WEST AFKICA

the new constitution held in 1961resulted in 14Africans and oneColoured
being elected to the Assembly out of a total membership of 65; these
were tlie first lion-Whites to sit in the Southern Rhodesia Parliament '.

3. The constitution also contained a Declaration of Rights, safe-
guarding persona1 liberty, freedom of conscience, assembly, association,
and the like, and provided that no law could discriminateagainst any one
in respect of race, tribe, coloiir or creed 2. A Constitutional Council was
established to safeguard against infringements of the Declaration of
Rights ).

NorlhernRhodesia

4. In 1945 the number of nominated European unofficial members of
the Legislative Council ' who represented Native interests was increased
from one to three 5.As from 1948 the Africans were represented on the
Council by members of their own race, two Africans having bcen ap-
pointed in tliat year6, by 1959 there were sis nominated unofficial
African members on the Council, which tlien consisted of 26 mernbers
altogether '. The franchise for the 12 elected members of the Council
remained unclianged to 1959, in practice leaving virtually al1Africans
without a vote '.

5. A new constitution in 1959 resulted in the Africans obtaining two
rewesentatives of their own race on the Executive Council. out of a total
iiiciiibershiliof rcn ! The Lcgislative Counzil\vas rcconititiiled and the
francliisc fur tlic e1cstt:ilint:inl,rrs iv;isgiven ro "orcliiiary" \,orers ;iiid
"juesi:il" \,orcri. tlit riii;iliricatioiisfor tlie I;ittcr b-iiiccoii;idcr:il~lvlower
tliin for tlir:lornicr id. IIIccrt:iin conjtituencics tliL,\i,?iglir :icco;d~'dto
votcs cas1 h!. "special" vutcrs n.:ijIiiiiired in re1;irioriio votes cast hy
"oidin~lr\'" votcrs. \vhilc(>tlit:rsc:its ivcrerejervcclt>vr3ce1'.'l'lieeleitioiis
held under this sistem resulted in eight African efected members being
returned in addition to onenominated Africanmember 12,out of a total

membership of 30.
6. Further amendments to the constitution in 1962extended the fran-
chise " and resulted in an increased Africaii representation in the Legis-
lative Council. In 1963 there were 19 elected African members on the
Council. as against 17 elected European members, one elected Asian
member, and six nominated European officials. The Executive Council

' Keesing'sConfernporary Avchivcs. Vol. No. SIII. ig6r-1962. p. 19135.
TheConstitution of Southern Rhodesia. ,961. Chapter VI. secs.57-72, Sfalulory
Inslruni~nts, ,961,So. 2314. Annex, pp. 29-43.
' Ibid..Chapter VII. secs. 73-91, pp. 43-51.
' Vide hiiriexA, para. 6, supra.
' Cinnd. 1149, p. 39; vide also Hailey, Ati Atrican Suniey (1957). pp. 290-29i
Cmnd. iiqg,p. 39.
' Ibid..paras. 47-48, pp. 39-40.
Ihid. p.aru.59, p. 43.
'OIbid.ppara.665.ppp.344-45.
" Ibrd.,paras. 61 and 62, pp. 43-44.
''Keesirig'sConternporary Archiues, Vol. No. XII, 1959-1960, p. 16793.
" The Sorthern Rhodesia (Electorul Provisions) Order in Couneil, 1962,SlnfuforY
Insfrr<mcnfr. 1962.No. 626. COUNTER-MEMORIAL OF SOUTH AFRICA 511

of II, now includes four unofficial African members, as against two
unofficialand five officialEuropeans '.

Nyasaland

7. Africans obtained membership of the Legislative Council for the
first time in 1950, when two Africans were nominated 3. A third nomi-
nated African memberwas added in 1953 3,the total mernbership of the
Council then being 19.

8. A form of election was first introduced in 1956, when the Council
was reconstituted to include six non-African members elected by the
European, Asian and Coloured communities, and five African members '
elected indirectly by electoral colleges
g. In 1959 two Africans were added to the Executive Council as

additional nominated unofficialmembers 6.
IO. The Territory received a new constitution in 1961 '. TheExecutive
Council now contains a majority of mernbers drawn from the elected
members of the Legislative Council and appointed by the Governor
The 28 elected members of the Legislative Council are elected in the
majority of constituencies by voters on a lower roll and in the remaining
constituencies by voters on a higher roll The first elections under the

newconstitution returned a Legislative Councilcontaining sixEuropeans,
one Asian and 21 Africans 10.Officia1membership at first maintained
a balance between Europeans and Natives on the Executive Council 'O;
but when Nyasaland became self-governing on I February 1963, a
Cabinet was forrned consisting of nine Africans and one European ".
Independence is planned for June 1964.

The Federationof Rhodesiaand Nyasaland

II. 'l'li~e<I,.r,4tlon\rd, ,rc,jlS.<ilnIC,>;{'>. lltivc po!vvr\V.l~\'c~tvd
iii Hcr \l:ij<:i~y.ru 11..ex, riiî~il liv .îiiovc.rt1or-GcnsT-L2Ind C.il,iiti: ".
Th<.fttl~r.~lcxcctiti$i. 2nd le?iilsti\.c .iutliorii\ cxren~lt:donly to ccrtltin
rn:iIit~rî .~iiiinccl in tht- i:onititiiti~ii. tlic rriiilii:il poiveir iciii.iini!i::
\.vsri.~lin rhc'ft.rrir<iri;ilGi,\.rriiiiiila.tLegi>l.iti\<:po5vc.r\\.;icxtr:i.;cd
by 111,. fvilrr.,l:\iiinibly coriii:tiiig of 26 Eur~pc.iii iiienibrrs. slc.~r<:il

Central Office of Information,Commonwealth Suniey, Vol. g, No. I (1963) .. 5.
VideAnnex A, para. 8,supra.
Cmnd. 1149.para. 89,p. 5%.
* Ibid.. para. go,p.53.
Ibid.,paras. 91 and 96,pp.53-54.
' Ibid., para. g8,p.54.
' The Nyasaland (Constitution)Order in Council, 1961;Statutory Instvuments.
1961. Xo. 1189.
Ibid.. secs. 6-8.p.7.
Ibid., sec20 and sec. 60,pp. IO and 24.
'O Keesing's Contemporavy Avchives, Vol. No. XIII, 1961-1962p ,. 18373.
" Steinberg. S.H. (ed.), The Statesman's Year-Book 1963, p. 510.
lZ The Federatian of Rhadesia and Nyasaland (Constitution) Order in Council,
1953.Statutory Insfuments, r953,No. 1199.
" CCrnnd.1140,paras. 45and 47. pp. II and 12.
I* Ibid., para. g,p.z. COUNTER-MEMORIAL OF SOUTH AFRICA 513

17. In 1959 the Territory received a new constitution, which estab-
lished Executive and Legislative Councils '. Half of the members of the
Esecutive Council are Afncans and half Europeans. The Resident Com-

missioner has a deliberative and a casting vote 1.The Legislative Council
known as the Basutoland National Council, has 80 members of whom
ail but four European officialsare Africans ';of these 40 are elected by
the District Councils which have now become fuiiy elective bodies on
the basis of a franchise extended to dladult taxpayers '.The remaining
membersarechiefs and members nominated by the Paramount Chief '.
The legislative power in respect of certain matters such as defence and
extemal affairs, has been reserved for the High Commissioner of the
Territory '.

Bechuanaland

18. The European Advisory Council was established on a statutory
basis in 1947 and in 1950 a Joint Advisory Council was created con-
sisting of four officialsand eight members from each of the African and
E~ropean.Ad\~isoryCouncils '.

19. The Temtory received a new constitution in 1960 5,which is still
in force. Afncans were given two nominated members in an Executive
Council of nine 6, and 12 members (two appointed and ten elected),
in a Legislative Council of 36 7. The election is by an electoral coilege
called the African Council, a newly constituted advisory body relative

to Native administration 8.Apart from officialmembership this Council
consists of the African anthorities of the eight tribes and 32 Africans
appointed or elected from 13electoral districts 9.

II. BRITISH CONTROLLED TERRITORIES IN EAST AFRICA

Kenya

20. ln 1944 an African was appointed to the Legislative Council of

Kenya 'O for the first time, having been selected from a list of names
proposed by the local Native Councils '1. A second African scat was

' Central Office of Information. Commonwealth Suvucy, 1959. Vol. 5, No. 20.
PP. 858-859.
Vide Annex A. para. 14, supra.
1Proclamation 44 of 1947. Vide Hailey, Native Administration, Part V, p. 319.
'Commanwealth Relations Office: Bechuanaland Protectorate Report /orthe Year
1957. p. 84: Lord Hailey, Native Administralion, Part V. pp. 320.321.
' The Bechuanaland Protectorate (Constitution) Order in Council, 1960; Stalu-
loly Inrlruments. 1960,No. 2416.
The Bechilanaland Protectorate (Constitution) Orderin Councii, ,960, op. cil.,
secs. 3-5p. 4.
Zbid.. sees22. 24 and 25. pp. 9-10.
Ibid.,sec. 24and sec.62. pp. 9, 23-24.
Ibid..sec. 56.pp. 21-zz.
'O Vida Annex A, para. 17, supra.
'1 Central Officeof Information, Kenya. Pamphlet No. R4489 (I~Q), p. 17. SOUTH IVEST AFRICA
514

created in 1947 '. The Legislative Council was again enlarged in 1948
and in 1g52, when there were six appointed Africans in a membership
totalling 45. There were also six Asians and twoArabs, the other members

being official and elected Europeans 3. In the same year an African for
the first time took a seat on the Executive Council in the place of the
European representing African interests 3.

21. As from 1954 a large number of successive constitutional changes
were introduced, the one foliowing rapidly on the other. In 1957 the
first African elections in the territos. were held for eight African seats
in the Legislative Council, on a qualitative franchise coupled with a
system of multiple voting '. Shortly thereafter Africans were given 18
seats(14by direct election and four through an electoral coiiege) out of a
total membership of91 5.

22. The 1960 Constitution provided for a Legislative Council of 65

elected members. By a system of "reserved seats" and "national mem-
bers" it guaranteed a certain minimum nnmber of seats to each popu-
lationgroup (European, African, Asian and Arab) 6. These were coupled,
however, with common roll elections for the remaiiiing seats on the basis
of such low franchise qualifications7 as to result in an over-ali Atrican
majority (37out of a total of 65) % The Executive Council then consisted
of 12 Ministers, of whom four wereAfricans 9.

23. In rg62 thcre iv;i;teritdti\.e agrcerneiit upon a coris~itiirionintro-

duciiig uni\.orsd adult suffrage and a hisamer31 lcgislnt~irz~~\.Vithout
ha\,inr!bcçn niit into eff,:ct.Iio\ie\.cr. thisconstituiion wsî iriM:ircliro6i
supergeded Gy one drawn up for intemal self-government of Kenya1<
which became independent on rz December 1963 12. A House of Re-
~resentatives consists of 117 members elected bv universal adult suffrage
iiid rz rnciiibcrs 'jclectcd tri,tlic ~l~ct~drnciiiBc;suftlic Hou+!forniingcn
elector:il~~ollcgc".:iiid a Scnatc oi .+rrnïnibers representing e:tch of the

' Colonial Office i\>ol~on Colonial Castifutional Changes. 1940-1950 p.. 13.
Additional Royal 1nstructions.G.h'. No. 43'.COlonyand Protectorateof Kenya
Proclamafias. Rubs and Regulafions. Vol. XXVII, pp. 139-148.
Colonial Reports, Reporf or, fhe Cobgiy and Protecfornfe O/ Kenya for Ue Year
19.52.P. 139.
' Central Office of Information, lienya. Pamphlet Na. RF.P.5611 (1963).p. 27.
'Cmnd. 309,p. 3; Cmnd. 369, pp. 3-4.
The Kcnya (Constitution) (Amendment No. 2) Order in Cauncil. 1960,Statutory
Insfrumenls. 1960. No. 2201: Ctn>rd.960, pp. 7-8.
' Legislative Council Elections Ordinance, ,960 (No. 48 of 1960). sec.g. Kenya
Ordinances. 1960, Vol. XXXIX. p. 342.
Colonial Office. Report ontheCofony aiidProtectoralcof Kenya for Ihc Year1960.
pp. 115-116.
Ibid.. p115.
'O Cnind. ,700, p. 16.
" The Kcnya Ordcr in Council. 10- - Sfatuforv Inatrumenfs. 1.63- No. 791.
IZ Cmnd. p. r.
" The Kcnya OrderinCouncil 1963, secs.28-30 and Schedule 2. Part II, Statutory
Instruments, 1963, Nc. 79'. pp. 36-37 222-224: Central Office of Information,
Kenya, Pamphlet No. RF.P.5611 (1963).p. 30.
" Ibid.. sec30 and Sehedule 3. pp. 37 and 228-230. COUNTER-MEMORIAL OF SOUTH AFRICA 5'5

Districts and the Nairobi area'. The Executive power rests in a Cabinet

advising the Govemor, on a basis of collective responsibility to the two
Houses of the National Assembly 2.

Tanganyika

24. In 1945 the membership of the Legislative Counci13 was
increased', and the Africans gained representation on it for the first
tirne. Two Africans were then appointed as norninated unofficial mem-
bers 5,and by 1948two additional Africans had been appointed 6.

25. In 1946 the territory was placed nnder the international tnistee-
ship system ?. Certain changes in the Kxecutive and Legislative Councils
were introduced in 1948 and in 1955these bodies were again reorgan-
ized. .&fricans were given two members in an Executive Council con-
sisting of 14members, and ten appointed representatives on a Legislative
Council of 61 members

26. Elections were first held in 1958-1959.There was a common voters'
roll, and the voters' qualifications were such that African voters formed
an over-aii majority; but a spécialvoting system designedly maintained
racial parity 9.

27. In 1960~IICTL \. re fiirrlier inïjor constitiition:il cliaiijies. The
fraiicliise <lii.<liiic:itions\r.crc iub~tanti:~llyrecluce'0,résulring iiiiii:iiiy
iii<~re\otrrs coiiiiiigoiito the roll 1%.'I'li. ,rincil>ofparit). uf tlic races no
loiijici nl~plicd; hut in certaiii constirtiencici jc;irs wcre rcscrved for
1:iiropc~:inaiid r\si;in rnt:int~e:r;sin<lttiivcrc cilsoa numbtr of iiorninated
meintiers uf c~ch race 10.:\s a reslilt the Lemslative Couricilreturned in
196itconsisted of 50 elcctcd :\frican memb;rs. II elccted Asi:ins, ten
elcctccl I.:uropeans.two ex uoiczok:iirolii':iiiriiciiihers.and iiirienominare<l
iiienili~rjof \vlionithrec iverl::\frricnris.t\vo:\siai13and four Euro~t.Jns "

TheExecutive Councilwas replaced b; a Councilof AIinistersandkabinet
government was introdiiced in 1961,resulting in seven African Ministers
being appointedout of a total of 14 12.Tanganyika became independent
in December 1961. adopted a republican form of government (within
the Commonwealth) in December 1g6z. and now has universal adult
suffrage and a Cabinet of 15, being 12 Africans, one Arab, one Asian
and one Europeaii '3.

' The Kenya Order in Council, op. cil.s,cs. 26 and27, p. 36.
Ibid..Secs. 66 and 67. pp. 59-60.
' VVideAnnex A, paras. 22-24, supro.
' The Tanganyika (Legislative Council) Amendment Order in Council. 1945,
State Papers, Vol. CXLV, pp. 651.653.
' Cmd. 7987, p.9.
C.A., O.R. .itth SESS.,Supp. Xo. 4 (Al1306). pp. 5-6.
' U.N. Doc. TlAgreernent 2,g June 1947.
G.A., OR.. Eleventh Sess.. SuPp.. No. 4 (A13170)p. 36.
G.A.. O.R., Fourieenth Sesr.. Supp. No. 4 (A/41oo), pp. 25-26.
'OC.A., O.R.. Sixteanth Sess., Supp. No. 4 (AI4818). p. 25.
" Zbid.,pp. 24-25.
l2 Ibid., p. 24.
l3 Steinberg, S. H. (ed.). The Sfalesmnn'Y sear-Book 1963, p.548; Keesing'r
Conten?boraryArchiues, Vol. XIII, 1g6r-1962, p. 19132.51~ SOUTH WEST AERICA

Uganda

28. Three African members were appointed to the Legislative Council
of Uganda ' iii 19452,and a fourth was added in 1947 3.TWOof the four
Africanmembers were henceforth elected by Councilsin their respective
provinces'. In xgjo Africans were given eight seats in a Legislative
Council then totalling 32 ', but as yet no direct representation on the
Executive Council? A new constitution in 1955, however, gave them
three hlinisters in an Executive Council of 13 5, and 30 members (ap-
pointed) in a Legislative Council of 60 Further changes in 1gj8 raised
the total membership of the Legislative Council to 62, of whom 34 were
Africans 6.At the same time direct elections for the African representa-

tives were introduced, the franchise being based on qualifications relating
to property, literacy, public service, regular employment, or income '.In
1960the franchise was broadened and in the next year direct elections on
a common roll were held in 82 constituencies8, resulting in 78 seats
being held by Africans 9and a Cabinet with nine African Ministers out of
a total of 14 being formed 9.
29. Uganda received self-government in Narch 1962 and became
independent in October ofthe same year. The newconstitutional mange-
ments provided for an au-elected National Assembly based on universal
adult suffrage with a common roll, with Buganda in federal relationship
and the three Agreement Kingdoms (Toro, Ankole and Bunyoro) in
semi-federalrelationship with the central Government 'O.

British Somaliland

?o. A Protectorate Advisorv Council was established for this territorv
in"19.4~ Il,but no furthcr significanr <:Ii:iii~ctsimk place iintil rqj7. l'lien.
in ttie iliort sp:icc of tliree \?Riisn result of a number otconstitiitioiial
changes, the territory developed from one having neither Executive nor
Legislative Councils, into a fully independent country with a Cabinet
system of Govemment and a Legislative Council elected on the basis of
universal adult male suffrage 12.The first Executive and Legislative
Councils established in 1957 contained no elective element IZ;this was
first introduced in 1959 in respect of a minority of the members of the
Legislative CouncillZ, and in the next year the Legislative Assembly

Vide Annex A, para. 19, supra.
Central OfficoefInformation, Conslitutionnl Develop~~ein lhc Commonwcalth.
No. RF.P.2oro. Part II, p.22.
* Cmd. 7715 p. 23.
' Central Officoef Information. Ugonda: Thc Moking of n Nation. No. RF.P.
544'. PP. 31-32,
Central Offic ofInformation, Polilical Adunncc in lha United Kingdom Depcn-
dcncicr. No. RF.P.4324 (r959). p16.
' Apter. D. E., The Polifical Icingdom in Ugnnda (1961). p. 429.
Central Officoef Information, Ugando: The Moking ofa Nation, No. RF.P.
5441. P. 33.
* Keesing's Contempovory Avchi"es, Vol. XIII. 1961-1962, p. 18044.
'O Cmnd. 1523,pp. 4-5. 14-19.
" Colonial OfficAe,nual Raparl onthe SamnlilnndPrateclorat8 forthe Ycarrg48.
D. 72. COUNTER-MEMORIAL OF SOUTH AFRlCA 5'7

became fully elected 1.The executive authority was vested in a Council of
Ministers who were responsible to the Legislative Assembly Z. eritish
Somaliland became independent on 26 June 1960 and merged with the
former Italian Tmsteeship Temtory of Somalia to form the Somali
Republic on I July 1960 '.

III. BRITISH CONTliOLLED TERRITORIES IN WEST AFRICA

GoldCoast

31. In 1946 the Legislative Council of the Gold Coast 'was reconsti-
tuted to become the first such Councilwith a majority ofAfrican unofficial
members in the whole of British Africa j.Some of the elected African
members were directly elected through a franchise based on property and
other qualifications6, but the majority were elected by various ehctoral
coiieges 6. >
32. A new constitution of 1951 provided for a Legislative Council of

84 members, of whom 75 were elected African members 7, but of the
latter number five only were directly elected '.At the same time there
were eight Africans in the new Executive Council of II members '. An
African med the post of Prime hlinister newly createdin 1952 8.
33. A further revision of the constitution in 1954resulted in the direct
election of al1 members of the Legislature g,on the basis of universal
adult suffrage 9. The Executive Council now became a Cabinet of blinis-
ters presided over by the Prime Minister 'O.
34. The Gold Coast thus became the first African Colony to have a
Legislature wholly elected on the basis of universal adult suffrage with
an all-African Cabinet of Ministers. It became independent in 1957,

thenceforth to be known as Ghana.

Nigeria

35. In 1942the Africans ofNigeria gainedrepresentation ou the Execu-
tive Council. two of the three unofficial members ao~oint.. then for the
first tirne being Africans 11.
36. 11ajor constitution~l ch:ingcs \r.cre I~rought :ihout in Kigenii-in'
1947, 19,jr. 1.54 and 1960, ciiliiiinnting iii;I Fcdernl Constitution under
whicli the roiintrv hccame indepcndent in thc last-rncntioned yeiir.

Annex. sec. 17. p. 6.der in Council, ,960. Statutory Instrumcnlr 1960,No. 1060,
1 Ibid., secs3 and 4, pp. 3-4.
Steinberg. S. H. (ed.). Tlic Stoterman's Ycor-Book 1963. p. 1389.
' Vide Annex A. para. 27. rupro.
RoyalInstitute of International Affairs, Cholhnm Houre Mcmoronda. Ghana,
A Brief Political and Econornic Survey(1957). pp. 13-19.
Ibid. and Elias. TO.. Ghana andSierra Leone. TheDevelo~ment of the& Laws
and Constitutions (1962). p. 70.
' Ibid.. p.16. .
Elias,bp. cil.. p. 41.
Ibid.. p. 42.
Io Ibid.. p. 65.
" Central Office of Information:Nigeria: The Making of a Nation. 1960. p.29.gr8 SOUTH WEST AFRICA

37. As from 1947 the Legislative Council contained a majority of
African members, most of whom were indirectly elected by regionai
electoral colleges '.In 1954, however, universal adult suffrage for the

members of the Legislative Council (by then known as the House of
Representatives) was introduced in the Eastern Region of Nigeria; the
members representing the Western Region were elected by tax suffrage,
while the electorai college system was still in force in the Northern
Region =.
38. Although the Legislative Council had jurisdiction over the whole
ofNigeria', Nigeriandiversity was acknowledged in a system of Regional
Legislative Houses with legislative pourerson a widenumber of subjects '.
Similarly, the Esecntive Council of Nigeria (which became a Council of

Ministers in 1951) 4 was the principal instrument of policy in Nigeria ',
but at the same time there were Regional Executive Councils in the
various regions of the country 4.
39. Under the 1960 Constitution the Federal Parliament consists of a
Senate and a House of Representatives The members of the House of
Representatives are now elected on the basis of universal adult suffrage
in the Eastern and Western Regions,Lagos and the Southern Cameroons,
the franchise beingrestricted to adult males only in the Northern Region.
Each Region is, subject to the federal Constitution, a separate self-
governing state with its own executive and legislative organs 6.

Sierra Leone

40. In I 43 the Africans obtained representation on the Executive
Counci17 O9 the territory for the first time, when two unofficial African
members were nominated by the Governor 8;and in 1948a third African
member was added 9.
41. The Legislative Council was reconstituted in 1951 Io, after its
composition had remained unchanged for 27years Il.About two-thirds
of its members were now elected. some directlv. ou the hasis of adult
suffrage with property and lite~~yqnalificati~~~1z, and the majority

indirectl-.bv means of electoral collec-s 12.
42. At the same time the Executive Council was reconstituted so that

Report by His Majcrty's Gwcrnment in the United Kingdom of Greni Brilnin
and Northcvn ZrclandIothe Trurtecship Council of the Unil~dNalias a theAdmini-
stroiion of th6 Canicroons under Uprited Kingdmn Trusteeshi+ for lhc Y~.r r947.
Colonial No.zzr. p. 15.
Ezera. K.. Casiifutiaol Dcuclepmenfsin Nigeria (1960). pp. ~or-zoz and 208.
Ibid., pzoz.
4 -.id.o. - 7.
' The Nigeria (Constitution) Orderin Council. ,960, Sintutory Znslrumenlr. 1960.
Na. ~brd.:~che&les 3. 4 and 5.
' Vide AnnexA, para. 34, szipa.
Elias, op. cip.,251.
CeniralOffic oe Information,SierraLeonc :The Making of a Nation. No
4851 (1960). p.26.
'0The Sierra Leone (LegislativeCouncil) Order iiCouncil,1951. Statutory
ments. 1952, No.6x1.
Vids Annex A. para. 34. supva.
l2Elias. op.cit., pp. 247-248. COUNTER-MEMORIAL OF SOUTH AERlCA 5I9

the majority of its members were drawn from the elected members of
the Legislative Council '.
43. Constitutional changes in 1956 resulted in a majority of directly
elected African members being returned to the Legislature (the House
of Representatives) ?,on the basis of a franchise extended to virtually
al1 adult taxpayers '. In 1958 the territory received its first all-African
Executive Counciland an AfricanPrime iilinist4.
44. Further constitutional developments in 1958,196 a0d 1961 re-
sulted in Sierra Leone becoming a fully iudependent State within the
British Commonwealth5, with an all-African Cabinet and a House of
Representativesdirectly elected by universal adult suffrage 6.

BritishCameroons

45. In 1946 the General Assembly of the United Nations approved
a trusteeship agreement for the British Cameroons. The administration
of the Territory was fuüy integrated with the adjoining areas of the
Protectorate of Nigeria ',so that the Cameroons had no legislative,
administrative or budgetaiy autonomy, but shared acommon executive,
leeislative and iudicial svstem with the Protectorate of Nieerias. In
11; 1951 h-igcrii!hconstitii~ionalclinngesthe ~ameroons obtaikd its o\vn
represcntation iiittir Ccntr;il Iioiisc of Kepresent:iti\~es9 and :ils0 in
the Sontiern :iiiEastern Keci-nal Houscs of ~ ~ - - ~ , ~O.
46. Under the 1954 Nigerian Constitution and thereafter theNorthem
Cameroons continued to be closely integrated with the Northem Tem-
tories of Nigeria, sharing in the .election of members to the Federal
House of Assembly and to the, Northem House of Assembly 11,while
the Southern Cameroons became a separate federal constituent with
its own Regional House of Assembly andExecutive CouncillZ.Thefran-
chise forthe election of members of the House of Assembly was the same
as in the other Regions13.
47. In 1961 p~ebisciteswere held in.the Northern and Southern parts
of the Trust Territory for the purpose of determining whether the people
wished to achieve independence by joining the independent Federation
of Nigeria or the independent Republic of Cameroun ".As a result, the
-

' Ibid.p.oz4g.il., p. 251.
Ibid.p.254.
' Cenhal Office of InformatioSicno Leone: Ths Mnking of a Nolion. S-.P.
4851 (1960). p.28.
' Elias, op. cit.. p. 258.
Ibid.PP .59-i60.
' The Nigeria (Protectorateand Cameroons) Order in Council. 1946. sec. 6.
State Papcrs, VoCXLVI, p. 301.
". TA.port on fhcCamcrwnr under United I<irigdomTrustccship for Yen* 1947,
-Ibid., xggrp. 39.
'O Ibid., pp. 39-40.
" C.A., O.R. Tenth Sers., Supp. No. 4
IZIbid.. p. 144.
" Ibid., p. 146.
'*C.A.,O.R., SixteerrthSers.. Supp. No. S2O SOUTH WEST AFRICh

Northem Cameroons joined the Federation of Nigeria as a separate
province of the Northern Region of Nigeria, while the Southern Came-
roons joined the Republic of Cameroun l.

British Togoland

e
48. In 1946 the Southem Section of Togoland was included in the
Gold Coast Colony for legislative and administrative purposes Z, and
four years later the Southem Togoland Council was established for the
purpose of electing one member to represent the territory in the Central
Gold Coast Legislature; but the Northern Section of Togoland remained

administratively integrated with the Northern Territories of the Gold
Coast and subject to the legislative power of the Governor j.
49. With the constitutional changes effected in the Gold Coast in
1951 and 1954 Togoland obtained more representatives on the Legis-
lative Council. In 1956 a plebiscite showed a majority of the people
of British Togoland to be in favour of complete integration with an
autonomous Gold Coast, and this was effected when Ghana became an

independent State in 1957 '.

Gambia

50. New Executive and Legislative Councils5 were established for
the Colony and Protectorate of Gambia in 1946 6, as a result of which
Africançreceived minority representation in both Councils 6.
51. A new constitution of 1954 provided for a Legislative Council
with a maioritv of elected members 7.'most of whom were elected bv
various el&toral coUeges 7. As a result, Africans became the majority

of the members of the Counci17. The Executive Council was also re-
constituted so as to have a majority of members appointed from the
elected or nominated members of the Legislative Council l.
52. A. new constitution was again introduced in 19608 providing
for 27 elected members in the Legislature-19 directly elected by uni-
versa1 adult suffrage and the remaining eight by the Head Chiefsg.
Intemal self-government under yet a new constitution came in May
1962, the House of Representatives now having 36 elected members

(32 by universal adult suffrage and four by Chiefs) out of a total of 39.
An aii-African Cabinet consists of a Premier and eight hfinisters drawn
from the Legislature 'O.

' C.A., O.R., Sizth Sess., Supp. No. 4 (A/4818), p. 35
C.A.,O.R., Fouvth S~SS.,S*. NO.4 (AI933). pp. 31-32.
C.A., O.R.. Sirth Scss., SuepXo. 4 (Alr856). p. 153.
' C.A.,O.R., Twelfth Sers., Suep. No. 4 (A/3595), p. 23.
Vide Annex A, para. 38, supra.
Colonial Office, Annual Report on the Catnbia for the Year 1947. pp. 46-47.
' Cambio Report fovthe Yeam 1958 and 2959.pp. 84-85.
The Gambia [Constitution) Orderin Council. 1.60~Slotulory Instruments, 1960,
No. 701,
Ibid.,secs.22,23 and 27 and Central Office of lnfomation, Gambia, Pamphlet
No. R.5519. p. 12.
'O Steinberg. S. H. (ed.), The Stntermnn's Year-Book 1963, p. 183. COUNTER-MEMORIALOF SOUTH AFRICA 521

IV. FRENCH CONTROLLED TERRITORIES
FrenchWest Africa

53. In 1946aUthe French West African territories obtained represen-
tation in the French National Assembly and in the Council of the Re-
public1. In addition, French West Africa was represented in the French
Union Assembly ', which was a newly created advisory body, half of
whose members represented metropolitan France and half the associated
States of the new French Union 2. The franchise qualifications for the
election of deputies to the Xational Assembly were such that only a
limited number of the indigenous people gained voting privileges 3.
The Senators in the Council of the Republic and the representatives on
the French Union Assembly were elected by electoral collegesconsisting
ofeach territory's deputiesandlor the members ofeach General Counci13.

54. The General Councils, later known as Territorial Councils, were
representative bodies established in 1946and 1948for the,various terri-
tories except Senegal '.The electorate for these Councils consisted of a
double coliege of voters, the first being composed of citizens having
French civil status and the second of what may be termed territorial
citizens, being in practice Africans belonging to certain specified cate-
gories 5.
Universal adult suffrage was introduced in French West African
territories in 1956 6. The Territorial Assemblies elected on this basis had
legislative powers over local affairs 6. At the same time Executive
Councilswere established, consisting of a majority of members elected by
the Territorial Assembly 7, with a Territorial Head as Chairman '.
55. In 1958the French Union was transformed into the Community.
Al1the French West African territories. with the exce~tion of Guinea,
which preferred immediate independence through seccssion, voted to
become sovereign repuhlics within the Community.

FrenchTogoland

56. After the Second World War the Territory was placed under a
trusteeship agreement.
57. The Territory was given a Territorial Assembly in 1946 which
consisted of 26Africans and four Europeans 9. The two electoral colleges
were retained. The first was estimated at 400 voters wlio were French
citizens and elected six members. Out of a total adult population of
944,446, only 39,615 registered in 1947 in the second college9. The
franchise qualifications were similar to those in force in the other French
Temtories 9.In 1952the size of the electoral body was increased and the

' Thomp~n V. and Adloff R., Fvench West Africa (1958). p. 45.
Robinson, K., "Political Development in French West Africa",in Africnin fhr
Af'dZoid.. pp. rgg-160. C. W. Stillman (1955). p. 757.
' Thompson, V. and Adloff. R., Fvench West Africa (1958). p. 54.
' Robinson, K., Afvica in the Modem World (1955). pp. 159-160
Thompson. V. and Adloff, R., Fvcnch Wesl Africo (rg58). p. 80.
' Ibid.. p. Er.
Hailey, An African Suniey (1957). p. 333.
C.A.,O.R. .ourth Sas., Su*. No. 4 (A1933). p42. . .522 SOUTH \\'EST AFRICA

representation of the second college was raised '.In 1956 the Territory
became part of the French Union and universal adult suffrage was intro-
dnced Z.

58. The post-war devclopments in French Equatorial Africa followed
substantiaiiy the same pattern as in the case of French West Africa.
In 1946 French Equatorial Africa obtained seats in the FrenchNational
Assembly, in the Senate and in the new French Union Assembly '.The
local Assemblv consistcd at first of members elected on a restricted fran-
chise \iiih tlic S1111Ctype of tivo-fold elcctor:ite :isiii1l.ccase of irench
\\'est Afriiii '.but IIL.~Croo u~ii\.ersaIadulr suffragl) \vas iiltrod~lccrlin
1956 5. ;\t ttie sariii: tiint: tlic position of the tio\,ernor-Gciieral and
Governors \\,as iiiodified by the est:iblislunrnt of Coiincilsof Governmznt
\\.tiicii,rffçzt wcre c:ibinets under a sysieiii -p-roaihing-closely ro full
responsible government 5.
59. The establishment of the French Cornmunity in 1958 led to the
four Territories comprising French Equatorial Africa au becoming
Republican member States of the Community.

French Cameroons

60. After the Second World War a trusteeship agreement was con-
cluded for this Territory.
61. In 1942 it was given a Consultative Economic and Social Council
consisting of 34 members 5 which was succeeded in 1945by a Territorial
Assembly '.The members of the Assembly were elected by two electoral
colleges, the first consisting of French citizens and the second of others
faiiing in specified categories 8. The first college had a proportionately
higher representation; it consisted of 2,590 voters in 1946 and elected
16 Ewopean members 9.In the second college it was estimated in 1946
that 450,000 to joo,ooo persons were eligible to vote out of a total adult
population of 1,400,000; however, only 39,615 had registered in 1947.
This college elected 24 African mernbers 9. In 1956 the Cameroons waç
included in the French Union, and universal adult suffrage was intro-
duced.

Madagascar

62. The post-war constitutional changes in Madagascar were similar
to those in the other French African territories. Under the constitution
of the French Union established in 1946, Madagascar was one of the

' GA., O.R.,Ninlli Sers., Supp. No.4 (A/z68o), pp. 208-zog.
Hailey. An Africnn Suntty (1957). p. 334.
Thompson V. andAdloff R., The Emcrging States of Fvench Equetorinl Africa
(1'6Ibid., pp. 37-38.
' Ibid., p. 34.
Hailey, A*: African Surucy (1957). p. 335.
' Rappmt Apznueldu Gouvernemen1Frnn~nisaux Nalions Unies sur i'adminirlro-
lion du Cameroun plalncsous ln tutelle In Frntzce,année1947. p. 12.
Ibid., pp. 24-25.
G.A., O.R., Fourth Sess.. Supp. No. 4 (A1933).p. 17. COUNTER-hlEMORIAL OF SOUTH AFRICA 523

"Overseas Temtories" with representation in the French Xational
Assembly, the Council of the Republic and the Assembly of the French
Union 1. The franchise and voting arrangements for the local legislative
organs were similar to those in the other French Territories discussed

above 2.
63. 'ïli,Frenili coii.itir~ition;ilrcforiiii in igjC exrciid~d tlic princiylz
uf~iiii\.,:r~~aldiilt fraiicliije ro .\l:idajia'.~tr
64. In 1958,when the French union was transformed into the Com-
inunity, the Representative Assembly of hfadagascar proclaiined the
establishment of the hlalagasy Republic.

V. ITALIAN COSTROLLED TERRITORIES

Erilrea

65. After the conquest of the Territory in 1941. a military adminis-
tration was set up underwhich various advisory councilswere established
from time to time '.
66. In 1952,as a result of a resolution of the General Assembly ofthe
United Nations 5,Eritrea was constituted an autonomous unit federated
with Ethiopia under the sovereignty of the Ethiopian Crown. Under the

federal Act Entrea has executive, legislative and judicial powers in the
field of domeçtic affairs6. The Eritrean Constitution ' provides for a
Legislative Assembl~ elected either by direct or indirect ballot, the
first stage of the latter being conducted in accordance with localcustom 9.
The franchiseis givento adult male citizens 'O.The executive power vests
in n Chief Executive elected by the Assembly and assisted by a Council
of Secretaries appointed by him IL.Eritreans participate in the federal
executive, legislative and judicial processes in the proportion that the
population of Eritrea bears to the population of the Federation IZ.

ItaliaS nomaliland

67. In 1946the British military administration of the territory estab-
lished a number of Advisory Councils '3.

hfodagascnr et les Territoires Frariyais de I'Ocdan Indien et dla AlerRougcr
Comorcr-Iles Aurlraler-Somalis (r95+), p. 17: Deschamps, H., The French
Union (1956).p. 71.
Deschamps. H., The French Union (r956). pp. 113 and '50.
I.iure d'Or de la Republique Malgache (1959). p. 55.
' Trevaskis, G. K. N.. Erilrea A Colony in Transition: 1941-1gy (1960). p. 32.
' C.A. Resolution 390 A (V), 2 Dec. ,950, in C.A., OR., Fifth Sesr.,Suffi. No.
20 (.117.. . . ..20-22.
~bid., sec. 5p. 20.
' Conslitution of Evilreo, in C.A.. O.R., Sevcnth Sers.. Supp. No. 15 (AIz188).
PP. 76-89.
Vbid.. Art. 39, p. 82.
Ibid., Art. 43(4).p. 83.
'O Ibid., Art.20,p. 80.
l2 Ibid., Art. 7. p. 79.d74.pp. 85-86.
'' Administrative Instruction No. 125/46. Annunl Report by the Chicf Admini-
strator. 1946. British hlilitary Administration Somalia. Appendix16. p.42. SOUTH WEST AFRICA
524

68. In 1950Somaliland was entrnsted to Italy to administer as aTrust
Territory nntil itattained its independence l. Various new advisory, non-
elective Councilswere thereupon established 2.
69. In 1956a fuUyelective Legislative Assembly was introduced, con-
sisting of 60 members to represent the Somali population and ten mem-
bers representing the non-Somali communities '. There was universal
adult male suffraee. but in mral districts an indirect electoral svstem
through tribal c&ncils was in force +. The executive governme<t was
vested in a Council of Ministers, appointed by the Administrator, and
responsible to him and to the legislatÜrc=.
70. In 1958 the electoral laws were amended to introduce universal
adult suffrage and to extend the direct ballot system,and in the next year
the second Legislative Assembly \vas returned on this basis =.In 1960
Somalia obtained independence.

VI. BELGIAN CONTROLLED TERRITORIES

BelgianCongo

71. As from 1951 Africans were appointed in the miuority, to the
Central and Provincial Advisory Couiicils 7. Until 1959 there was no
material further change in constitutional arrangements.
On 13 January 1959 King Baudouin of Belgium declared his wdi to
lead the Congolese population to independence 8. Provision \vas there-
upon made for the election by universal suffrage of municipal councillors
and members of territorial councils. who together would appoint pro-
vincial councillors and, later on, general counsellors 8.Forerunners of a
Chamher of Representativesand a Senate were also established
72. A year later a conference in Brussels decided on independence for
the Belgiau Congoto be granted on 30 June 1960and adopted a number
of resolutions providing for the preliminary constitution of the new
State 9. The lee-slative Dower was to be exercised bv a House of Re-
pr<:sciitnti\.cs.\VIIVI~IC;~II>L\I.<;Ito bc cl~..~cdhy ;ni\,ci.sal suffrs$,'u,
and a Senate, \\,IIusL.i(:~~.l,erswtretu b~ deiignated II!tlie pro\.inciaI
aiiemhlies (inclu<linc;iiiiiriiiiiiiinnumbu of tribal cliieftnini or lead'Orj1
The two ous s c&es ,ned as a Constituent Assemhly, were to draxv'up
the constitution of the Congo.State and to designate the Head of the
State ". Other resolutions regulated the division of powers between the
Central Legislature andthe provinces, and the orgauization of Provincial

'U.N. Doc. T/Agreernent/ro.8 Aug. 1951.
C.A.,O.H. ,ixthSCSS.Supp. NO. 4 (A11856). pp. 84-85.
'Ibid.. p92.Elevenfh Sess., Supp. h'o. 4 (A/3170)go..
Vbbid.. pgr.
C.A.,O.R.. Filleenth Sers., Su@. No. 4 (A14404).p. W.
'Hailey A.n Africnn Survey (1957). pp. 350-351.
"TheCongo on the Road to Democracy" i,nInforCongo. The Bclgion Congo
Today.Vol.VIII, No. 3, p. g.
Gançhof van der Meersch,W. 1..Fin deIn Sor<ueraintfÉBelgatdCongoDocu-
mentset Rdflexionî (1g63). pp. 16,-164.
'Vbbid., pp. 167-168 and 126-rzg:
" Ibid., pp. r67-169. COUNTER-MEPIOR IF SOUTH AFRICA 525

Assemblies and institutions '. These resolutions became the law under
wbich independence was granted to the country on the fixed date 2.

Intemal hostilities delayed the adoption of the contemplated constitution
until October 1962 3. It concemed mainly the division of power between
central and provincial authorities 3.

Ruanda-Urundi

73. In 1946 the United Nations approved a trusteeship agreement,

with Belgium as the administering authority '. In the uext year an
Advisory Council was established, consisting entirely of ex oficio and
appointed members 5. In 1949 the two Native Kings of Ruanda and
Urundi were appointed ex o@ciomembers of the Council 6. By 1954 the
number of African members on the Council had been increased to five '.
In 1957 this Councilwas replaced by a General Council which was stiil a
purely advisorybody with a majority of appointedEuropean members
74. In the meantime. however. deveio~ments in the svstem of loca

weie elected indirectli and by means of electGal colleges 9, and steps
were taken to make the local institutions more democratic 'O.Major
reforms in 1959 and 1960 extended the principle of direct adult male
suffrage, and conferred limited legislative powers on the King and State
Council in each of the two territories of Ruanda and Urundi ". Further
develonments l2 included the abolition of the monarchv in Ruanda and
rlic ll<;lclingof g<:ncr;ilclcctitms iiitlir t\irr>ti:rrircrici rr;iilringiii tli<?

Trujr~t~liip~\grt rii~,:~~ 1t1cirit~rn~iii:~ttxln Iiuly I~LL3 !n.I I<!v:~iida~nd
13uriiiiiiiemergiiig :is t\vo iiidc]iciid~~n:inil so\i rri~iiiiarcs ".

VII. PORTUGUESE TERRITORIES

75. 1'urtiig;ilclid ii~it:id<q>t;,~~t.,lic\.f gr;iiiting scl,;irnte in~lc[ii.iidenct:
to irs ,\frican rcrritories oii ili~ b3iij of a gen~r.~I~T.IIICIII'~ llte.'!.stetn
of rcr~rding tlictrrriruries :i5rxirt uf 1'urtu~:il\Y.,;rernin~rl:iiicltlic.~~rr:

' Ganshof van der Meersch, op. cit., pp. 167-169.
Britannica Book of the Year. 1961, Encyclopaedia Britannica. p. 144.
Steinberg, S. H. (cd.), The Statesman's Yen*-Book 1963, p. 914.
* U.N. Doc. T/Agreernent/3, g June 1947, secs. 1-2,p. z.
Arrêt6Royal~.4 Mar. 1947 as cited by Hailey. An African Surucy 11957).
P. 352
'C.A., O.R.. Tenth Sess., Su$#. No. q (Alzq33). p. 78.
C.A., O.R., Thirteenth Scss., Supp. No. 4 (A/3822), Vol. II, p. 41.
GA., O.R.. Tenth Sess.. Supp. Xo. 4 (AI2933). p. 79.
'OC.A., O.R., Twelfth Sess., Supp. No. 4 (A/3595), p. 59.
" G.A., O.R., Fifteenth Sesr., Su$+. No. q lA/qqoq), pp. 64-66.
lZC.A.. O.R., Sixteenth Sess., Supp. No. 4 (A/q818), p. 30.
C.A., O.R., SeventeenthSess., Supp. No. 4 (A/5204), p. 9.
" Law No. 2048, Political Constitution of th6 Portuguese Republic Chap.
VII, Art. 134. p. 36.526 SOUTH WEST AFRICA

76. Provision was made in 1951for the representation ofthe provinces
in the Portuguese National Assembly. Angola and ~lozambique each
elected three De~uties and Portueuese Guinea one. ont of a total of
120 IJç1~utit.'.'~'ieffr~nchise\\.ascorifiriedto iriti~éiis,i.e.,adult iiiernl>ers
of rliepoptrlucüoci: ~iTlhezucdmuposirion of rhc population in 1950
.. .-
was as'foilowi 3:
Toial Popu'~do White Jndian %fivc
pop. Civilieada caste
Guinea .. . . 510,777 8.3~0 2,263 4.568 11 1.478
Angola ... 4,145,266 135,355 78.826 26,335 - 30.039
Nozambique 5,782,982 92,619 48,813 25,165 12,673 4.353

77. The New Organic Law of 1953 introduced Legislative Councils,
with advisory powers only, for Angola and Mozambique '. In Angola
II out of a total of 36 members and in Alozambique nine out of a total
of 24 members were directly elected by the citizens '.thus introducing
a direct elective element for~the~ ~ ~t time in the central covernment of
tticsc territories-the other seats on the C'oun~ilsbcing fillr<lin b:~sic:illy
ttie snriie iiiaiincas tind api>liedto the Councili of Governriierit '.l'lie

latter Councils were retainéd and here also an elective element waç in-
troduced, i.e., the election of one member for each district by citizens '.
78. Consideration has been given since 1962 to provide for "adequate
representation" for the territories nt the national level,i.e., inthe National
Assembly, the Corporate Chamber and the Overseas Council 6, and for
the establishment in the Territories of fuiiy elected Legislative Coiincils
with legislative powers 7.

VIII. SPANISH TERRITORIES

Sfianish Guinea

79. Until 1960 the Territory aas administered on the same basis as
in the pre-war period. The Govemor had, howe\ler, two Advisory
Councils, one composed of the civil and military heads of local services.
and the other of representatives of the Chambers of Commerce and
certain nominated officiais 8.
80. In 1960 the Territory was divided into two provinces, each be-
coming a province of Metropolitan Spain under a civil governor, the
inhabitants having the same rights as Spanish citizens 9, and therefore

'Hailey. An Afriçan Survey (1957). p. 230.
2Art. 23, Native Statute as cited by Egerton, F. C. C., Angola in Perspscfiue
(1957). P. 118.
'Anuàrio Eçtatistico do Ultramar. 1952, pp. 26-27 as cited by Hailey. An
African Survay (1957). p. 232.
'Hailey, An Africari Survey (1957). p. 355.
Vide Annex A, para. 58, supra.
According to a statement apparently made hy the Permanent Representative
o1962. vide U.hT. Doc. A/544G/Add.MIe(19 July i963), pp. 23-24.ly on 18 Oct.
'Zbid., p. 25.
Hailey, An African Sunicy (rg57). p. 234.
Tl'hitaker, J.An Almanach, ,961. p. 928. COUNTER-MEMORIAL OF SOUTHAFRlCA 527

the right to partake in the election of the elected members of the Cortes
de Espina.
During this year autonomy for these provinces was provided for in
a statute, subject to a plebiscite recently held. The result is not yet
known '.

IX. IWEPENDENT STATES

Ethiopia

81. EthiolBii rc:c,:ivc.i1 ncw coristitution iii 19j5, providiiig for s
Chiiiibcr of 1)cputies elcrtrJ 1)).urii\.crs:ilsulfr.i2..'fivoyt.ari latt-r tlic
firjt clzctiorii in the Iiistor\' of thc ioiintrv \vi.r<:h'.l'hc mcnihirs of
the Senate are still appoin&d by the ~m~éror '

Liberia

82. The tribal people of the hinterland of Liberia received represen-
tation in the legislature of the country for the first time in 1945w .hen the
three provinces were aUotted one representative each in the House of
Representatives 5. By 1962six members of the House of Representatives
represented the provinces out of a total memhership of 40 6. According
to the Liberian Government, the tribes living in the counties are re-
presented by an additional number of representatives '; accordingly

approximately one-third of the membersrepresent the tribes which are
estimated at 1,z5o,ooo people, as against approximately two-thirds
representing the Americo-Libenans, whose number is estimated at be-
tween ~z,ooo and zo,ooo 9.

A.F.P. Africa South of the Sahara, No.Iorz, 2i Oct. 1963.
2 Articles 93-95 of the Reviscd Constiluliortof Elhiopin (1955) in Ethiopia Observer,
\'ol. V.Xo. 4~(~962),p. 375.
3 Silberman. L.. "Ethiapia Elects". in The Lislener (rq Nov. 1957). pp. 774-775.
* Article IOI of the Constitution, in Efhiopin Obrcnier, Vol. V, No. 4 (1962),
P. 375.
' Hailey. An African Survey (1957). p. 357.
Liberia Annual Rcoiew 1962-1963, pp. 278.28~.
' Townsend.. E. R. (ed.), President Tubean of Liberia Speaks (iqjg). p. 155.
Icitchen. H. (ed.), The Press in Africa (1956). p. 85; Buell. R. L.. LibmAa:
Cenlury ofSuniiunl ~847-rgq7 (1947). p. 7. DISTRIBUTEURS GENÉRAUX DES PUBLICATiONS DE LA

COUR 1NTERNATIONALEDE JUSTICE

DISTRlBUTORS OF THE PUBLICATIONS OF THE

INTERNATIONAL COURT OF -JUSTICE

AFRIQUE DU SUD -SOUTH AFRICA ISRAEL - ISRAEL
Van Schaik's Bookstore (Pty.), P.O. Box 72Blumstein's Baokstores, Ltd.,35Allcnby Road
Pretoria. and 48 Nachlat Benjamin Street. Tel-Aviv.

ALLEMAGhX - GERMANY ITALLE - ITALY
Alexander Hom, Soiezel&!as9,Wicrbaden. Libreria, Commisrionaria Sanroni, Via Gino
BELGIQUZ - BELGIUM Caoooni 26, Firenze.
JAPON- JAPAN
du Persil 14-22, Bruxelles. Presse Snie,
barhi, P.O. B8605,Tokyo Central. Nihon-
CHINE - CHLNA
The Commercial Prar, Ltd., Peking; 211 NORVBGE -NORWAY
Honan Rd., Shanghai. lohan Grundt Tanurn Forlas. Knrl Johûnr-
DANEMARK - DENMARK gate 41, Oslo.
Einar Munkrgaard, Lld., Norre~ade 6. Ko- PAYS-BAS - NETHERLANDS
benhavn.
Doezasüaat 1, Lciden.eversmautschnooii N.V..
ESPAGNE - SPAIN
Librerla JoséBosch, Ronda Universidad II, REPUBLIQUE ARABE UNIE - UNITED
BarceIona. ARAB REPUBLIC
ÉTATS-UNIS - UNITED STATES OF Librairie -La Renaissance d'Es~vl9»,Sh.
AMERICA Adly Pasha, Le Caire.
Sales Section, United Nations, New York 17ROYAUME-UNI - KINGDOM
~.~ ~ ~
FRANCE London S.E.1, and H.M.S.O. Shous in569,
Editianr A. Pédone,rue Soumot 13, parv. London Belfasl,Birmin~ham, Bristol, Cardiff.
Edinbu&h and Manchester.
HOM-KONG - HONG KONG
Swindon Book Co., 25 Nathan ~ ~ ~ d ,UISSE-SWITZERLAND
Kowloon. Librairie Pavot S.A., rue de Bourg 1, Lau-
INDE - INDIA Neuchâtel, Veveyel Zurich.evc, Montreux,
Oxford Book & Stationen Co., Scindia ~ib~~~~H evns Raunhardt, Kirchsasse 17,
House, New Delhi; and at Calcutta. Zurich 1.

Pour les autres pays, prihre de s'adresser soit au distriblocal des publications
des Nations Unies, soità la Seerion de Io distribution er des ventes, OBce des Narrons
Unies, 1211Gen2ve 10 (Suisse) ouA la Section des ventes, Norions Unies,NeYork 17,
N.Y. (Elor$-Unis).

1" other countries, orders should baddressed to the local Distributofor United
Nations publications,or Io the Disrriburion and Sales Secrion, O8ce of the Unired
Narions, 1211 Geneva IO (Switrerland), or the Sales Secrion, United Narions, New
York 17, N.Y. (U.S.A.).

Pour les publicationsde la Cour perinonenre de Jusrice internotionole (1920-1946),
prière de s'adresse$ la soci616 ChditionA. W. Sijthoff, Doezastraa1, Leyde (Pays-
Bas).

For publications of the Permanent Court of Infernational Jusrice (1920-1946), al1
requests should be addressed tA. W. Sijthoff's Publishing Company, 1Doewstraat,
Leyden (Netherlands).