INTERNATIONACOURTOF JUSTICE
PLEADINGS,ORALARGUMENTS, DOCUMENTS
VOI'INGPROCEDURE ON QUESTIONS
RELATINGTF0 REPORTSAND PETITIONS
CONCERNING
THE TERRITORY OF SOUTH-WEST AFRICA
(ADVJSORYOPINIOFJUNETH1955)
COUR INTERNATIONDEJUSTICE
MEMOIRES,PLAIDOIRIETDOCUMENTS
-
PROCÉDURE DEVOTE APPLICABLE AUX
QUESTIONS TOUCHANT LES RAPPORTS
ETPETITIO NELATIFSAU TERRITOIRE
DU SUD-OUESTAFRICAIN
(AVISCONSULTATIFDU 71955) CONTENTS - TABLE DES MATIÈRES
PART 1.-REQUEST FOR ADVISORY OPINION AND
WRITTEN PROCEEDINGS
PEEMIERE PARTIE. - REQUETE POUlZAVIS
CONSULTATIF ET PIÈCEÇ DE LA PROCEDURE ECRITE
SECTION A.-REQUEST FOR Al3VISORY OI'INION
SECTION A. - REQUE'I'E POUR AVIS CONSULTATIY
Wges
1. - Letterfrom the Secretary-Generaiof the UnitedNationsto
the Presidentof the Court (zXII 54).- Lettre du Secré-
tairegénéral des Nations Unies au Présidentde la Cour
(2x1154) ................. 8
II. - Resolution adopted by the GeneralAssemblyat its 5o1st
plenary meeting on 23 Novernber 1954. - Résolution
adoptéeparl'Assemblée général àesa 501me séance pléni&re
le23 novembre 1954 ............. 9
SECTION B.-DOSSIER TRANSMITTED ~1'THE SECRETARY-GENERAL.
OF THE UNITED NA'fZONS (ART. 65, PARR. 2,OF THE STATUTE)
SECTION B. - DOSSIESI TRANSMIS PAR T.E SECRI?'~'AII<E GÉNÉRAT,
DES NATIONS UNIES (ART. 65, PAR. 2,DU STATUT)
Part I ; lntroductosy Note. - Preml2re fiarti: Introduction rr
Part II : Contcnts ofthe dossier.- Deub2nae partie : Contcnu
du dossier .................. 30
Part III: Additional Notcs rclating to the Request for an
Advisory Opinion on South-West Africa (voting proccdilre)-
Troisiime partie : Notes complémentaires concenrant la
demande d avis consultatifrelative au Csi~d-Ouesatfricain
(procéduredc vote) ............. 38
SECTION C.-WRJTTEN STA'l'EMEN'l'S
SECTION 6. - BXPOSTC;~ CCKLTS
I. - Letter from the Legal Adviserof Içraelto the Registrarof
the Court (22II 55). ............. 51
z. - Letter from the Minister for ForeigAffairsof the Republic
of China to the Regstrar of the Court (25 II55) ... 52
3. - Lettre de l'envoyé extraordinaireet ministre plénipoten-
tiairede Yougoslavie au Greffierde la Cour (IO rrr55) .
53
IO100 CONTE3NTÇ - TABLE DES ~VI~IÈKES
Pagrs
4. - Written st~iternent othc United States of Americaon the
questionssubmitted to tlic internationalCourt of Justice
Eiythc United Nations General hssernlilyin its resolution
904(TX), datcd Novernbcr 23, 1954 (28II 55) ....
54
5. - Ezposk du Gouvernement de la Républiqiiepopulaire de
l'ologne conçcrnantlademande de 1'A~cmblée géneraiedes
Nations Unics, en vue de délivrer l'avis consultatif de la
Cour internationalede Justice concernant laprocédure de
vote applicable auxrapports et petitions rcIatiau Terri-
toirc du Sud-Ouest africain ........... 70
6. - Wntten statement ofthe Government of Indiaregarding
the voting procedure of questions relating to reports and
petitions concerningthe Territory of South-Wcst Africa .
72
PART TI.-ORAL STATEMENTS
PUBLIC SITTING
DEUXIEME PARTIE. - EXPOSÉS ORAUX
SBAUC EUBLIQUE
MINUTES. - PKOC&S-VERBAL :
7Vi55 ................... 80
PART III.-DOCUMENTS SUBMITTED TO THE COURT
AFTER THE CLOSURE OF THE WRITTEN PROCEEDINGS
[No doca~m~nds weresei.bmétted]
TROIST~ME PARTIE. - DOCUMENTS PRESENTES A LA
COUR APRGS 1-4 FIN DE LA PROCI?DURE ECRITE
[Aucun docurn~mtm'a i68prksen€&.e'.]
PART IV.-CORRESPONDENCE
QUATRIE~E PARTIE. - CORRESPONDANCE
r. Thc Secretary-General of thUnited Nations to the President
of the Court (z XII54) (see p.8)
2. Le Greffierau ministre des Affaires étrangèrd'Afghanistan
(9 XII 54) .................. 86
3. Le Greffier au ministre des !Affaires étrangd'Afghanistan
(16 XII 54) .................. 86
4. TlieSecretary of Forcign'Affaiof Honduras to the Ticgistrar
(24 XII 54) .................
87
5. The Ambasador of the Government of the United Kingdom
to the Kegistrar (18r 55) ............ 87 SECTION C.-WRITTEN STATEMENTS
SECTION C. - EXPOSÉS ÉCRITS
1. LETTER FROM THE LEGAL ADVISER OF ISRAEL
TO THE REGISTRAR OF THE COURT
22 February 1955
Sir,
1 am directed by the Minister for Foreign hffairs to acknowledge
receipt of your letter, No. 21430 o9 December 1954, and the
special and direct communication under Article 66, pz,of the
Statute of the Court, contained in your letter No. 21461 of 16
December 1954. in the case on the voting procedure on questions
relating to reports and petitions conceming the territory of South-
West Africa, under the resolution adopted by the General Assembly
of the United Nations on 23 November 1954.
In reply to the above communications, Mr. Sharett bas instructed
me respectfully to draw theattention of the Court tothestatements
made by the representatives of Israel in the meetings of the Fonrth
Committee and the plenary meetings of the General Assembly.
held during the ninth session, at which this question was discussed.
The Government of Israeloes not wish to add to those statements
and it does not therefore propose submitting any further written
statement within the time-limit fixed.
1 have the honour, etc.
(Signed) Shabtai ROSENNE,
Legal Adviser.52 WRI~TEN STATEHENTS
2. LETTER ];ROM THE MINISTER FOR FOREIGN AFFAIRS
OF THE IZEPUBLIC OF CHINA TO THE REGISTRAR
OF THE COURT
February 25. 1955.
Sir.
1 have the lionor to acknowledge receipt of your communications
Nos. 2x430and 21461dated December 9 and 16,1954,respectively,
fonvarding to me a certified copy of the request to the Court for
an Advisory Opinion on the voting procedure on questions relating
to reports and petitions concerning the Territory of South-West
Africa and requesting my Govemment to indicate whether it
wishes to avail itself of the right to present a written statement
before March 15, 1955.
In reply, 1 have the honor to inforrn you that the Government
of the Republic of China does not consider it necessary on its part
to present a ~~ritten statement on the question, inasmuch as its
views thereon have been set forth in the relevant records of the
ninth session of the General Assembly of the United Nations.
Accept, Sir, etc.
(Signed) George K. C. YEH,
Minister for Foreign Affairs. 3. LETTRE DE L'ENVOYÉ EXTRAORDINAIRE ET
MINISTRE PLÉNIPOTENTIAIRE DE YOUGOSLAVIE
AU GREFFIER DE L.4 COUR
No 103155.
leIO mars 1955.
Monsieur le Greffier de la Cour,
En réponse à votre lettre no21461en datedu 16décembre1954,
j'ai l'honneur de vous informer que mon Gouvernement m'a fait
savoir qu'il n'a pas le désir de présenter un exposé écritou oral
relatif auTerritoire du Sud-Ouest africain (résolutiondela9"' Assem-
blée générale des ations Unies du 23 novembre 1954).Le Gouver-
nement yougoslave est d'avis que la questiandéjàétéexaminée
et épuiséavant par un avis consultatif de la Cour internationale de
Justice, se rapportant à la question du Territoire du Sud-Ouest
africain.
Veuillez agréer,etc.
(Signé hIilan RISTI~54 WRITTEN STATEAIENTS
4. WRITTEN STATEMENT OF THE UNITED STATES OF
AMERICA ON THE QUESTIONS SUBAIITTED TO THE
INTERNATIONAL COURT OF JUSTICE BY THE UNITED
NATIONS GENERAL ASSEAfBLY IN ITS RESOLUTION 904
(IX) DATED NOVERIBER 23, 1954
INTRODUCTORY
The General. Assernbly of the United Nations, in resolutioii 904
(IX), dated 'lovember 23, 1954, decided to submit certain legal
questions with respect to voting procedures of the General Assembly
in connection with the Territory of South-West Africa to the
International Court of Justice, with a request for an advisory
opinion.
In that resolution. the General Assembly considered desirable
some elucidation of the Court's Advisory Opinion of July II,
1950, with respect to South-\Vest Africa. The resolution partic-
ularly referred to that part of the Court's opinion \\!hich stated
that the degree of supervision to be exercised by the General
Assembly with regard to the Territory of South-\\'est ..\frics
"should conform as far as possible to the procedure followed in
this respect by the Council of the League of Xations" and that
"these observations are particularly applicable to annual reports
and petitions". The resolution then referred to resolution 844 (IX)
adopted by the General Assembly on October II, 1954, establish-
ing the procedure for the exaniination of reports and petitions
relating to the Territory of South-\l'est ..\frica. including a special
rule F : "Decisions of the General Assernbly on questions relating
to reports and petitions concerning the Territory of South-West
Africa shall be regarded as important questions within the
rneaning of Article 18, paragraph 2,of the Charter of the Gnited
Xations."
Consequently the General Asscmbly in its resolution of Kovem-
ber 23, 1954, requested the International Court of Justice to give
an advisory opinion on the following questions :
"(a) 1sthe followingrule on the votirigprocedure to be followed
by the Gener~l .Assernblya correct interpretation of the
t\d>..isoryOpinion of the Iiiternatiorial Court of Justice of
II July 1950:
'Decisions of the Gciicr;il Assembly on qiiestions
ielatiiig to reports and petitions coiiceriiiiigthe Territory
of Soutli-\\'est Africa shrill be regarded ris important
questions\\,itlithe mcniiiiigof ArticlIS,priragrapl2.
of tlic Charter of the United Sntioi?s' (b) If this interpretation of the Advisoq, Opinion ofthe Courtis
iiot correct, what voting procedure should be followed by
the General Assemblvin takin~:decisionson questions relat-
jng to reports and~petitionsconcerning thé Territory of
South-West Africa ?"
The Government of the United States of America desires to
address itself in this written statement to question (a). It is the
view of this Government that special rule F adopted by the
General Assembly in resolution 844 (IX) October II,1954 ,ccords
with a correct interpretation of the Advisory Opinion of the
International Court of Justice. and that consequently question (b)
does not anse.
1. SUMX~AR OYF ARGUJIENT
The Advisory Opinion of July II, 1950 (International Status
of South-West Africa), concluded that the General Assembly is
legally qualified to exercise the supervisory functions previously
exercised by the League of Nations with regard to the aclministra-
tion of the Territory of South-West Africa. The Court did not
state that in exercising these functions the General Assembly
must follow procedures identical with those of the League of
Nations :the Court stated that such procedures "should conform
as far as possible to the procedure" of the League of Nations
Council. The Court particularly noted thatthe supervisory functions
of the Generai Assembly, though similar to those of the League's
Council, are "not identical". Finally, the Court espressly stated
that the same procedure followed by the General Assembly for
the approval of a trusteeship agreement. should be followed by
the General Assembly for the approval of any modification of
the international status of a territory under Mandate. This proce-
dure includes a two-thirds majority vote of the General Assembly,
as expressly required by Article 18, paragraph 2. of the Charter
of the United Nations.
iîlandatory Powers were not invariably membcrs of the League
Council, where a rule of unanimous decision prevailed on many
matters. Although invited to sit with the Council in the consider-
ation of mandate questions, such a Power could not have claimed
a right of veto. There is even question whether a mandatory
Powr occupying a Council seat could have exercised a power
of veto so as to frustrate proper League supervision of the territory
mandated to that Po\ver, by analogy to the principle that no
one shall be a judge in his own cause. One of the fundamental
features of the Charter of the United Nations is the adoption
of the gencral principle of majority voting and the abandonment
of the requirement of iinanimity in voting. For most of the
principal organs of the Vnited Nations, including the Court itself,
the requirement of a simple majority vote prevails. Even in the
Seciirity Council, which has primary responsibility under the56 IVRITTEN STKI~EZIESTS
Charter for the maintenance of international peace and security,
a system of ilualified majority voting prevails rather than one
of cornplete unanimity.
The United Nations Conference on International Organization
considered va.rious proposals for voting requirements in the
General Assenihly and decided that a two-thirds majority vote
should be the highest vote required, and that this special majority
should be reqiiired only for "important" questions. It is believed
that when the Court concluded, in its Advisory Opinion of July Ir,
1950 (International Status of South-West Africa), that the General
Assembly is iegally qualified to exercise supervisory functions
with regard to the Territory of South-West Africa, the Court
referred to the General Assembly as constituted by the Charter
of the United Nations, including the express provisions governing
roting procedures in that body.
II. THE COURT'S OPINION OF JUI.Y 11, 1950
The Advisory Opinion of July II, 1950 (International Status
of South-West Africa), considered in detail various relevant
provisions of the Charter of the United Nations. Thus, in amving
at the conclusion that the "General Assenibly is legally qualified
to exercise th(: supervisory functions previously exercised by the
League of Nations with regard to the administration of the Terri-
tory" of South-\Vest Africa, the Court stated:
"The coinpetenceof the General Assemblyof the United Nations
toexercisesuch supervision and to receive and examine reports is
derived frnm the pro\,isions of ArticlIO of the Charter, \vhich
authorizes the General Assembly to discuss any questions or any
matters wirhin the scopeof the Charter and to malie recommenda-
tions on tliese questions...." [~gjo] I.C.J., 137.
The Ol)iiiiori ûlso referred to the League of Nations Assembly
resolution of .4pril 18, 1946, which "iioted that Chapters XI,
XII, and XII1 of the Charter of Nations embody principlcs
correspoiidirig to those declared in Article 22 of the Covenant".
Ibid. The Opinion considered at length Article So of the Charter
in deterrniiiing that the Territory was entitled to continued inter-
national supervision. Id. at 133, 134, 136-38.
Finally, the Opinion stated: "The degree of supervision to he
exercised hy the General Assembly should not therefore exceed
that which applied onder the ?dandates Systern, and should
conforrn as far as possible to the procedure follo\ved in this respect
by the Council of the League of Nations." (tinderscoring supplied.)
Id. at 138. III thus qualifying its opinion as to the procedure,
the Court, it is only proper to assume, \iras well aware that the
Charter of the United Nations prescribed procedures for the
General Assembly different from those preçcrihed for the Couiicil
of the Leagiie of Nations by the Coveiiant of that organization. ~xrosÉs ÉCRITS 57
Thus, the Opinion States: "It cannot he admitted that the obli-
gation to submit to supervision has disappeared merely because
the supervisory organ has ceased to exist, when the United
Xatious has another international organ performing similar,
though not identical, supervisory functions." (Underscoring sup-
plied.) Id. at 136.
III. VOTING PROCEDURE IS THE COUNCIL OF THE LFAGUE OF
NATIONS
A difference in voting procedure is, of course, one of the important
differences between the procedures of the Council of the League of
Nations and those of the Geueral Assembly of the United Nations.
Article 22 of the Covenant of the League of Nations conferred on the
League Council supervisory authonty with respect to the Manda-
tory System, and Article 5, paragraph 1, of that instmment stipu-
lated :
"1. Except where otherwise expresslyprovided in this Covenant
or by the terms of the present Treaty, decisionsat any meeting of
the Assembly or of the Council shall require the agreement of al1
the Membersof the League represented at the meeting."
This was the "unanimity" rule of the League of Nations. It should
be noted that this provision didnot mean absolute unanimity at al1
times of al1 members of the Council l. A notable exception to the
"unanimity" mle was the principle that no one may be a judge in
his own cause, a principle embodied in Articles 15 and 16 of the
Covenant. See Williams, "The Leagiie of Nations and Cnanimity",
(1925) XIX, American Jonrnal of International Law, 475,483-84.
The Permanent Court of International Justice had occasion to
consider the scope of the unanimity rule in the Council'sprocedures.
Its Advisory Opinion, InterpretationofArticle 3, $aragra$h 2,O/ the
Treaty of Laz~san?te(Frontier beta'eenIraq and Tnrkey) ([~g~j]
P.C.I.J., Serieç B. No. IZ), was rendered in response to the following
resolution adopted on September 19, 1925, by the Council of the
Leagiie of Nations :
"The Council of the League of Nations, having been seized of
the question of the frontier between Turkey and Iraq by applica-
tion of Article3,paragraph z, of the Treaty of Lausanne, decides,
for the purpose of elucidating certain points of law, to reques the
Permanent Court of International Justice to give an advisory
opinionon the followingque-tions :
'11 W)hat isthe character ofthe decisionto betaken bvthe Council
' in\.irtueof :\rtic,:paragriipli2.ofrhcTrcnry oiI.:~ii~anii~.-
i;ilAnnrbiirnl n\vnr(l;irt.~.~niiiiciidator>.isimple inrJi:i-
tion?
menbers constitutedahquorum.ArticleIXsprovided that abstentiofromtvoting
rhouldbe disregardedHuiesof Procedure of tCouncila,doptedbythe Counci ln
May 26,1933.58 WRITTEN STATEMENTS
(2) Must the decision be unanimous or may it be taken by a
majority ?
May the representatives of the interested Parties take part in
the vote ?'
The Permanent Court is requested ta examine these questions,
if possible, in an extraordinary sessioi,.
The Council requests the Governments of Great Britain and
ing it with al1relevant documents or information. It has the honourh-
to transmit to the Court the Minutes of the meetings of the Council
at which the question of the frontier betmeen Turkey and Iraq has
been examined.
The Secretary-General is authorized to submit the present request
to the Court, togetlier with al1the relevant documents, to explain
to the,Court the action taken by the Council in the matter, to give
al1 assistance necessary in the examination of the question, and,
if necessary, to take steps to be represented before the Court:"
Id.,at 6-7.
In response to these questions, the Court gave the following
arlswers :
of Nations in virtue of Article 3, paragraphe Co2,cof the Treaty of
Lausanne, will be binding on the Parties and will constitute a
definitive determination of the frontier between Turkey and Iraq ;
(21 That the 'decisionto be taken' must be taken bv a unanimous
vote, the representatives of the Parties taking part'in the voting,
but their votes not being counted in ascertaining whether there is
unanimity." Id., at 33. - -
It will be recalled that the "interested Parties" in the Council's
proceedings in the matter of the Turkish-Iraq frontier (the "Mosul
dispute") wert: Great Britain, as Mandatory for Iraq, and Turkey.
While the firsi: question submitted to the Court involved an inter-
pretation of the Treaty of Lausanne, the second question involved
an interpretation of the provisions of the Covenant relative to voting
procedures in the Council. The Court, in answering the second ques-
tion, gave due consideration to Articles 4, 5, 15 and 16 of the
Covenant, and, in giving its answer as stated above, made the follow-
ing observations :
"It follows from the foregoing that, according to the Covenant
itself,in certain cases and more particularly in the case of the settle-
ment of a dispute, the rule of unanimity is applicable, subject to
the limitation that the votescast by representatives of the interested
Parties do not affect the required unanimity.
The Court is of opinion that it is this conception of the rule of
unanimity which must be applied in the dispute before the Council.
It is hardly open to douht that in no circumstances is it possible
to be satkfied with less than this conce~tion of unanimitv. for. if
such unanimity is necessary in order toéndow a recomméndation
with the limited effects contemplated in paragraph 6 of Article 15 EXPOSÉS ÉCRITS 59
of the Covenant, it must a fortio briso when a binding decision has
to be taken.
The question which anses, therefore, is solely whether such
unanimity is sufficient or whether the representatives ofthe Parties
must also accept the decision.The principle laid down by the Cove-
nant in paragraphs 6 and 7 of Article 15seems to meet the require-
ments of a case such as that now before the Council, just as well as
the circumstances contemplated in that article. The well-known mle
that no one can be judge in his owvnsuit holds good.
From a practical standpoint, to require that the representatives
of the Parties should accept the Council'sdecision would be tanta-
mount to giving them a right of veto enahling them to prevent any
decision being reached ; this would hardly be in conformity with
the intention manifestedin Article 3,paragraph z,of the Treaty of
Lausanne." Id., at 31-32.
The proceedings in the Council subsequent to this opinion are also
~ertinent. They have been summarized by Professor Manley O.
Hudson as follows :
"When the opinion came before the Council on December 8,
1925t, he Turkish representative stated that as Turkey had voted
against the request for the opinion, his Govemment could not be
considered to be bound by the opinion, to wh'ichhe attributed
'only the character of a legal consultation of a theoretical character
without any practical bearing'. He also drew the Council'sattention
to an 'advisory opinion' by Gilbert Gidel 1,which he compared with
that of the Court. On the question of accepting the Court's opinion,
the President of the Council first said that as this was a 'question
of procedure', the Council might apply the mle in the Covenant
relating to a question of procedure ; later, the vote was taken on
the basis of a stricter rule that unanimity would be required for
accepting the opinion, without counting the votes of the parties
to the dispute, Great Britain and Turkey. The report 'in favour of
accepting the advisory opinion ....was unanimously adopted, the
representative of Turkey voting against the re~ort'~. Thereafter,
on Decemher 16, 1925t, he Counciltook a decision under Article 3,
paragraph z,of the Treaty of Lausanne,in the absence of a Turkish
representative, the vote being unanimous ' ; this decision was
later made definitive &."
In considering the League Council unanimity rule in conjunction
with su~emision of the Mandates Svstem. it is worth recallin!? that
mandat'ory Powers were not invahably members of the ~ëa~ue
Professor Gidel's opinion had beenplaceinthe hands ofmembers of the Court
belore the Court's opiniowas given.Senes C, >-o.IO.p. 325.
3 LeagueofNations Official Journal, 1926. p. 128.
Ibid.. pp. 187-rg3.
4 Ibid., p. 503The Mosul dispute was hnally çettled by the Treaty of June 5.
,926. between Great Rritain, Iraq and Turkey.For the text,see 64 Leagueof
Nations Treaty Series,p. 379. Hudson. The Permnncr>t Court of Inter>zational
Justice (rgq3).517-18.Council 'and thus in a position to claim for themselves whatever
consequences inight flow from the unanimity nile. The Council did
invite mandatory Powers to sit with it in considering questions in
which they were concemed. Such Powers, if not members of the
Council, could not evenhave claimed a right of veto. In cases where
a mandatory Power held a Council seat, it still seems doubtful
whether the Power would have been permitted to exercise a veto in
such a way as to frustrate operation of the Mandates System. See
Wright, Mandates under the Leagueof Nations (1930). 132.
IV. VOTING PROCEDUR OFSTHE UNITEDNATIONSGEXERAL
ASSEMBLY
As stated above, the Opinion of July II, 1950 (International
Status of South-West Africa), indicated the Court's awareness of
the fact that [Jnited Nations procedures with respect to dependent
terntories,though similar, were not identical, to League of Nations
procedures regarding mandated territories. A further illustration of
the Court's awareness of this fact appears in the statement of the
Opinion beginiiing at page 141, as follows :
"Article 7 of the Mandate, in requiring the consent of the Council
of theLeague of Nations for any modification of its terms, brought
in10 operation for this purpose the same organ which was invested
with poweis of supervision in respect of the administration of the
>fandates. In accordance with the reply given above to Question
(a),those powers of supervision now belong to the General Assembly
of the United Nations. On the other hand, Articles 79and 85 of the
Charter require that a Trusteeship Agreement be concluded by
the mandatory Power and approved by the General Assembly
before the International Trusteeship System may be substituted
for the mindates System. These articles also give the General
Assembly authority to approve alterations or amendments of
Trusteeship Agreements. By analogy, it can be inferred that the
same procedure is applicable to any modification of the international
status of a territory under Mandate which would not have for ils
purpose the placing of the territory under the Trusteeship System.
This conclusion is strengthened by the action taken by the General
Assembly and the attitude adopted by the Union of South Africa
which is at present the only existing mandatory Power."
In reaching this conclusion, the Court, of course, must have been
cognizant of tbe voting procedures of the General Assembly with
respect to trusteeship questions, for which there is express provi-
sion in the Charter of the United Nations.
A. Charter Pr(~visions
The full texl: of the article of the Charter regarding voting in the
General Assernbly is set forth as follows :
'The Union ofSouth Africa, for example, did nat becoma member of the
Cpuncil until its elecasa non-permanent member on December 13,1939.The
compositioofthe Council remained unchanged fromDecembe13,1939, Aprili8,
1946.when the Le;lgwaç dissolved. EXPOSES ÉCHITS 61
"CHAPTERIV.-THE GENERALASSEMBLY
. . . . . . . . . . . . . . . . . . . . . .
Vo~~~c.-Arlicle 18
I. Each Member of the General Assembly shall have one vote.
2. Decisions of the General Assembly on important questions
shall be made by a two-thirds majority of the Members present
respect to the maintenance of international peace and security,h
the election of the non-permanent members of the Security Council,
the election of the members of the Economic and Social Council,
the election of members of the Trusteeship Council in accordance
~with paragraph I(c) of Article 86, the admission of new Members to
the United Nations, the suspension of the rights and privileges of
membership, the expulsion of Members, questions relatiiig to the
operations of the trusteeship system, and budgetary questions.
3. Decisions on other questions, including the determination of
additional categories of questions to he decided by a two-thirds
majority, shall be made by a majority of the Members present and
voting."
Thus, under Article 18,paragraph z,a two-thirds majority vote of
the General Assembly is the specified vote for questio~is relating to
theoperation of theTrusteeship System. This aould therefore be the
voting procedure which the Court has expressly said in its Opinion
of July II, 1950, "is applicable to any modification of the inter-
national status of a territory under Mandate which would not have
for its purpose the placing of the territory under the Trusteeship
System". In following this analogy, as the Court described it, back
to its source, it is evident that discharge by the General Assembly of
the functions of szcpervisinp a mandate must follow the same proce-
dure.
In its Advisory Opinion No. 12, November zr, 1925 (Frontier
between Iraq and Turkey), discussed above, the Permanent Court of
International Justice stated :"....it should be observed in the first
place that Article 3, paragraph 2,of the Treaty of Lausannerefers to
the Council of the League of Nations, that is to Say, to the Cozcncil
with the organization and fzdnctionsconferred zcpon itbythe Covenant".
(Underscoringsupplied.) The Court further observed :
"The representative of the British Government has contended
that the clause in Article5 of the Covenant only contemplates the
exercise of the powers granted in the Covenant itself. The Court
cannot accept this view. Article 5 states a general principle which
only admits of exceptions which are expressly provided for, andthis
principle, as has already been stated, may be regarded as the rule
natural to a body such as the Council of the League of Nations.
The fact that the present case concerns the exercise of a power
outside the normal province of the Council, clearly cannot be used
as an argument for the diminution of the safeguaràs with which,62 WRITTEN STATEMENTS
decisions.":nant, it was felt necessary to surround the Council's
Itmay be supposed that this Court, in concluding thatthe General
Assembly is legally qualified to exercise supervisory functious with
regard to the T'zrritory of South-West Afnca, had in mind this same
principle, i.e. tliat the General Assembly was the General Assembly
of the United Nations "with the organization and functions con-
ferred upon it" by the Charter and with "the safeguards" with
which, in the Charter, it was felt necessary to surround the General
Assembly's decisions.
B. Histovy of Article 18
The voting procedures of the United Nations are fundamental to
the operation of the Organization. In order to demonstrate the im-
portance attached to these voting procedures by the negotiators of
the Charter, an historical review is presented.
The Dumbarton Oaks Proposais for a General International
Organization, of 1944, which provided the basis for the negotiations
at the United Nations Conference on International Organization,
San Fransisco, 1945,contained the following texts regarding voting
in the General .Assembly :
"CHAPTER V.-THE GENERAA LSSEMBLY
. . . . . . . . . . . . . . . . . . . . . .
Section C. Voting
GeneralacAssemhly. of the Organization should have one vote in the
2. Important decisionsof the General Assembly,includingrecom-
mendations with respect to the maintenance of international peace
of members of the Economic and Social Councilrity C;uadmission ofn
Members,suspension of the exercise of the rights and privilegesof
Members, and expulsion of Members ;and budgetary questions,
shouldbemade by a two-thirdsmajority ofthose present and voting.
On other questions, including the determination of additional
categories of questions to be decided by a two-thirds majonty, the
decisions of the General Assembly should be made by a simple
majority vole."3 UNCIO/Docs.6.
Thus, it may be noted that the text ofArticle 18as finally approved
by the San Francisco Conference contains little substantive change
from the Dumbarton Oaks text. The important substantive change,
in fact, consistsf the inclusion of election ofmembersof theTrustee-
ship Counciland of questions relating tothe operation ofthe Trustee-
ship System in Article 18, paragraph z, as important questions
requiring a two-thirds majority of the Members present and voting.
Had these two itemsnot been expressly included in.Article 29, para- EXPOSÉS ÉCRITS 63
graph z, itmay be noted that the General Assembly would havehad
discretion under Article 18, paragraph 3, to decide such questions by
a simple majonty vote. It was upon recommendation of Committee
II14 (T~steeship System) approved by Committee 1111 (General
Assembly Structure and Procedures) that the San Francisco Con-
ference decided to include these additional questions in Article 18,
paragraph z, of the Charter. 8 UNCIO Docs. 488-89.
Committee II/I of the San Francisco Conference considered a
number of other proposals for amendment to Chapter V, Section C,
paragraphs Iand 2,of the Dumbarton Oaks Proposals ;these propos-
als appear in Conference Document 298, II/I/Iz, May 15, 1945
(8UNCIO Docs. 508). Among the proposals were : one for unanimity
in the case of decisions relating to military action (id. at 5x0);one
to change the two-thirds majority vote of the General Assembly to
three-qnarters (id. at512) ; various proposals for additional qnes-
tions reqiiiring two-thirds majority (id. at 512.13) ;and several pro-
oosals for deletion of certain ~rovisions for reauirinz a two-thirds
Lajority (id. at 514-15). "
None of these proposals was accepted by Committee 1111or by
the Conference. In Conference Document 29S,II/r/1z, May 15, 1945,
referred to above, there appears the following pertinent observation
of one delegation :
"The Delegation of the Dominican Republic has submitted the
followingcomments in Doc. 2, G/I~ (O) pp. 9-10:
'Another point of considerable importance in the Dumbarton
Oaks Proposals is that referring to the mle governing the voting
procedure in the General Assembly. According to those Proposals,
the most important decisionswillbe made by a two-thirds majorit
and others by a simple majority of those present and voting, wit X
such exceptions as are established in the Charter (Ch. V, Sec. C,
par.2).
'Therule adopted by the Covenant of 1919was the same as that
which governs diplomatic conferences :unanimity, except in duly
makes impossible the adoption of desirable or necessary decisionsquently
and for that reason the proposed inno~xationshould be adopted,
without its hindering in any way, however. the desirability that
in place of the two-thirds majoritya greater proportion be adopted
which would permit joining the advantages of both systems and
decreasing their respective undesirable features.'"
8 UNCIO Docs. 510-II.
The understanding of the Government of the United States of
America as to the significance of Article 18 of the Charter was set
forth in the Report to the President on the Results of the San
Francisco Conference by the Chairman of the United States Delega-
tion, June 26, 1945 (Department of State Publication ~349)~ as
follows (page 60) :
"The provision in the Dumbarton Oaks Proposals for a two-
thirds majority in voting on 'important questions' (whichare listed64 WHITTEN STATEMENTS
in thetext) ;anda simple majority foral1other questions, was written
into the Ch:irter (Article 18). It is significant that no one seriously
considered ~xrpetuating the unanimity rule which operated in the
League of Nations and in many other international bodies."
Also of interest in this connexion are the observations contained
in a staff study prepared for the United States Senate Subcommittee
on the United Nations Charter '.In this study, entitled "Represen-
tation and Voting in the United Nations General Assembly", there
appear the following pertinent comments :
"II. Preseni: Voting Practices in the General Assembly
In the past, international organizations ordinarily have been
hased on two fundamental principles : the legal equality of States
and unanimity in voting. In practice this has meant that nations
like Luxembourg and Iceland, with very small populations, have
participated in international assemblies on a hasis of legal equality
with large nations like the United States, China, and India. 'Russia
and Geneva have equal rights', declared Chief Justice Marshall
in 1825. and this ~rinciole of State eaualitv ,~o&.ed to international
conferences (as wéllas io internatiokl commerce).
It has meant, too, that whenever the decision stage has been
reached at an international conference. anv small Statë, as well as.
:,ny I.irgcoiic,titisbccn iii 3puiiti~mta blirk ;ictioii on ';iib3ranti\.e
qiit-,rions h.: c:isriiig3 ~lrg:ili\~ vote. 5~1iietiii1i:Iittlccnuiitri~.~
1t.i~~r~~ji)oiiilcitlo the uressurç of i>rl,ci..St;itrs :inclI.n\e abaiiduned
their opj>osition ; at other times they have prevented conferences
from arriving at decisions which, but for their opposition, might
have been u:nanimously approved.
Article 18
At the Sali Francisco Conference the framers of the U.N. Charter
accepted the first of these principles but rejected the second.
Article 18, which lays down the procedure for voting in the General
Assembly, rtads as follows :[here followsthe text of Article 181.
With respect ta the principle of unanimity, the Charter turns
its back upon the past. No doubt the experience of the League of
Nations was in large part, responsihle for this departure. Article 5
of the League Covenant, in effect, gave every Member of the League
a veto by prmiding tliat, with certain exceptions, 'decisionsat any
meeting of the Assembly or of the Council shall require the agree-
ment of al1the Members of the League represented at the meeting'.
This requirement hy no means paralysed the League Assembly.
It did, however. hamper its activity and onsome occasionsprevented
it from reaching important decisions strongly advocated by a
majority of the Members.
Thisstaffstudy was prepared by Mr. Francis O. Wilcox.Chief of Staffofthe
Foreign Relations Cornmittee ofthe Senate, who servedwith the UnitedStates
Delegationto the San Francisco Conference. 66 WKITTEN STATEHENTS
dispute shall ahtain from voting" (paragraph 3). Thus, even in
this organ of the United Nations, which is charged with primary
responsibility for the maintenance of international peace and
security, there is not a requirement of unanimity but rather a
system of qualified majority voting.
VI. I?RECEDENT SN THE GENERALASSEMBLY
A. Terminatiott of Mandates : Transfer to the United Nations
TrusteeshifiSystem
As noted above, Article 18, paragraph z, of the Charter requires
a two-thirds vote of Members of the General Assembly present
and voting for decisions of the General Assembly on questions
relating to the operation of the Trusteeship System.
On Februar:~ 9, 1946, the General Assembly adopted reso-
lution g (1), inviting al1 States administering territories under
Mandate to submit trusteeship agreements for approval and
welcoming the declaration of the United Kingdom of its intention
as mandatory to terminate the Mandate of Trans-Jordan and
to establish the independence of that country '.
On Decembr:r 13, 1946, the General Assembly adopted reso-
lution 63 (1) approving the following eight Trusteeship Agreements
placing League of Nations Mandates under the United Nations
Trusteeship Syjtem :
Terrilow .Id"rinialerinr, VOTE
.iulhoiilÿ dfirmoliueSegotiz'cdbat6ntion
New Guinea ... Australia ....... 41 6 5
Ruanda-Urundi . Belgium ......... 41 6 5
Cameroons. ... France. ........ 41 5 6
Togoland .... France. ........ 41 5 6
Western Samoa . New Zealand ..... 41 6 5
Tanganyika ...
United Kingdom ... 41 6 5
Cameroons .... United Kingdom ... 41 6 5
Togoland .... United Kingdom ... 41 6 5
On Novembi:r 1, 1947, the General Assembly, by a vote of
46 to 6, adopted resolution 140 (II), approving the Trusteeship
Agreement for the former Mandate, Nauru, submitted by the
Governments of Australia, New Zealand and the United Kingdom2.
establishmentof theindependencewofgthe countriesinvolved:Iraq, Syria and
Lebanon.
During this saine yea1947,arrangements were <:ampleted for the placing of
the Dlarsliall, Caroline and Mariana Islands (formerly mandatcd to Japan) under the
United NationsTruîteeshiSystem. ivith the United States of Ameiicnasadminister-
ing authoritySince this territothe Trust Territoof the Pacihc Islands, was
designateda strattgitrust territory, thisTruste:\grecmentwasapprovcd,on
behalf of the United Natiby the Security Counoflthe Organizatioin accord-
1947.approving th,: Trusteeship Agreeme\vaunanimous.cAspointed out above.il
erçnin that body the "unanimitrule does not prevail, since the rnajority required
ia rnajority sevrnmemberi, including the concurring votes ofivpermanent
rnernbers. EXPOSÉS ÉCRITS 67
Thus the General Assembly, in approving a series of nine Trustee-
ship Agreements in 1946 and 1947. acted by votes of more than
two-thirds but less than al1 the Members of the Assembly ; in
each case there were at least some negative votes. This \vas done
presumably in pursuance of the provision of Article 18(2) specifying
a two-thirds majority on "questions relating to the operation of
the Trusteeship System".
It may be noted at the same iime that these Geiieral Assembly
decisions to approve Trusteeship Agreements had also the character
of actions to modify and in fact terniinate Lcagiie of Nations
Mandates. Under the League such action might have been taken
by the League Council, where the unanimity rule was in force.
In the General Assembly the actions were taken by less than
unanimous vote and in accordance witli the Charter provisions
governing Assembly voting.
B. Terininalion of Mandates : Palesliue
The General Assembly \\.as heavily occupied during 1947 with
the problems involred in the termination of the Palestine Ilandate.
Iii a formal communication to the Secretary-General of the United
Katioiis, dated April z, 1947. the United Kingdom, as klaiidatory,
aiinounced its intention to ask the Geiieral Assembly, at its nest
regular session, to make recommendations. under Article IO of
the Charter, concerning the future government of Palestine. In
this same communication, the United Icingdom rcquested the
Secretary-General to summon a special session of the General
Assenibly for the purpose of constituting and instrncting a special
committee to prepare for the consideration of this questioii at
the nest regular session of the General Assembly. Accordingly,
a special session \vas convcned on ilpril28, 1947.which established
a Special Committee on Palestine.
After consideration of the report of this Special Committee
and estensive debate in its Ad Hoc Committee on Palestine, the
General Assembly adopted resolution 181 (11). Future Govern-
ment of Palestine, on Xovember 29, 1947. This resolution called
for the termination of the hlandate for Palestine not later than
Auyst I, 1948, and the partition of the territory into independent
Arab and Jewish States, together \vith a special international
regirne for the City of Jerusalem. This rcsolution \\.as adopted
by a t\vo-thirds majonty vote, 33 in favour, 13 against, withIO
:rbstentions (including the United Kingdom).
The United Kiiigdom subsequcntly aiinouiiccd its intention to
abandoii the Mandate on hlay 15, 1948. At niidiiight hlay 14,
rgqS, the Provisional Government of Israel proclaimed the
independcncc of the State of Israel. This State \vas later admitted,
in hlay rg.+g, as a llember of the United Xations.
Tfie Geiicr~l Assembly's dehate and resolution on the Palestiile
qucstioii iii 1947 provide an esample of Assembly action, to68 EXPOSÉS ÉCRITS
terminate a mandate, by a two-thirds vote where that vote was
considerably short of being unanimous and was not joined in
by the mandatory Power.
C. OtherMandate Questions: Sozrth-WestAfrica
The Mandate of South-West Africa is the only League of Nations
Mandate remaining in existence. All others have been terminated
either through attainment of independence or through transfer
to the United Nations Trusteeship System.
The status of the Territory of South-West Africa has been a
matter of continuing concem to the General Assembly of the
United Nation:;, which has adopted a series of resolutions on this
subject : resolution 65 (1), 14 December 1946 ; resolution 141 (II),
I November 1947 ; resolution 227 (III), 26 November 1948 ;
resolution 337 (IV), 6 December 1949 ; resolution 449 B (V).
13 December 1950 ; resolution 570 B (VI), 19 January 1952 ;
resolution 749 13(VIII), 28 November 1953 ;and resolution go4(IX),
23 November 1954.These resolutions assert the view of the General
Assembly that the normal way of modifying the international status
of the Territory would be to place it under the United Nations
Tmsteeship Sÿstem by means of a trusteeship agreement in
accordance wiLh the provisions of Chapter XII of the Charter.
On more thaii one occasion, the General Assembly has determined
that a proposal before it regarding the Territory of South-West
Africa was an "important question" within the meaning of
Article 18, paragraph 2, of the Charter and hence required a
two-thirds majority vote of Members of the General Assembly
present and voting. Such a determination was made in connexion
with resolutio~is 141 (II) and 337 (IV). Official Records of the
General Assembly, 2nd sess.. 1, 638-48 ; Officia1Records of the
General Assembly, 4th sess., 535. In both cases, the determination
was made by vote of the General Assembly. At the second session,
the subject w;rs thoroughly considered on a point of order by
the Indian delegation, which maintained that a simple majority
vote sufficed. By a vote of 31 to 20 with 5 abstentions, the
General Assembly found that the resolution on the status of
South-West Africa was a subject of importance requiring a two-
thirds majority. .4t the fourth session, the General Asscmbly
made a similar determination by a vote of 23 to 16 with 6
abstentions. this time upholding the ruling of the President that
a two-thirds iriajority vote \vould be required. EXPOSE ÉSCRITS 69
VII. CONCLUSION
When in 1950 the Court advised that supervision of the Mandate
for South-West Africa devolved upon the United Nations General
Assembly, it followed that the function of supervision must be
carried out by the Assembly in accordance with the Charter
proyisions goveming that body. The Charter provided for Assembly
votmg by simple majority and by two-thirds majority ;there
was no provision for a requirement of Assembly unanimity in
any case.
Article 18 (2) of the Charter states that Assembly decisions on
important questions shall be by a two-thirds majority ; on al1
other questions, including the matter of adding to the category
of important questions, decisions shall be by a simple majority.
The article specifies among the important questions : "questions
relating to the operation of the Trusteeship System". Assembly
decisions "on questions relating to reports and petitions concerning
the Territory of South-West Africa" do not come within this
class.Under the Charter snch decisions could be taken by a simple
majority. But, in framing the rule on voting procedure which
is the subject of the current request for an advisory opinion, the
Assembly bas chosen-as Article 18 (3) authorized-to deterniine
that these questions shall be decided by a two-thirds majority.
In the view of the United States, the General Assembly acted
quite properly in choosing to determine that this additional
category of questions shall require a two-thirds vote for decision.
Such a choice, and the adoption of a rule based on it, accord with
a correct interpretation of the Court's Advisory Opinion of July II,
1950.
It is submitted that question (a) should be answered in the
affirmative and that, in consequence, question (b) does not cal1
for any ansnrer.
February 26, 1955.7O WRITTEK STATEIIENTS
5. EXPOSÉ DU GOUVERNEMENT DE LA RÉPUBLIQUE
POPULAIRE DE POLOGNE CONCERXANT LA DEMAMDE
DE L'ASSEINBLÉE GÉNÉRALE DES NATIONS UNIES,
EN VUE DE DÉLIVRER L'AVIS CONSULTATIF DE LA COUR INTER-
NATIONALE DE JUSTICE CONCERNANT LA PROCÉDURE DE VOTE
APPLICABLE AUX RAPPORTS ET PÉTITIONS RELATIFS AU TERRITOIRE
DU SUD-OUEST AFRICAIN
Les questions présentées par l'Assemblée généraleà la Cour
internationale de Justice quoique formellement concernant les
problèmes de procédure concernent en vérité l'ensemble du
problème discuté depuis longtemps, à savoir quelle attitude
l'Assemblée gCnérale des Nations Unies devrait prendre envers
la non-exécution par l'Union sud-africaine de ses obligations
émanant de la Charte des Nations Unies envers les territoires du
Sud-Ouest afrimcain.
Le Gouvernement de la République populaire de Pologne
considèrecomnie indispensable de présenteà ce sujet les remarques
suivantes:
Le Gouvernement de la République populaire de Pologne
maintient dans toute son étendue l'attitude qu'il avait adoptée
dans son exposé transmis à la Cour internationale de Justice le
20 mars 1950. en ce qui concerne l'avis consultatif concernant la
situation juridique dans le Sud-Ouest africain ainsi que l'attitude
prise par les délégationspolonaises au cours de neuf sessions de
l'Assemblée généraledes Nations Unies, lors des discussionsà
ce sujet. Au cours de ces débats la délégation polonaise s'est
constamment prononcée en faveur de la solution de ce problème
en pleine confcamité avec les dispositions et l'esprit de la Charte.
Le Gouvernement de la République populaire de Pologne a
souligné à plusieurs reprises qu'il n'existe qu'un moyen pour
résoudre le piroblème de l'avenir du Territoire du Sud-Ouest
africain en conformité avec les dispositions de la Charte. Ces
temtoires doivent êtresoumis par l'Union au système de tutelle
des Nations Unies pris en considération que dans l'avenir ils
devront être déclarésindépendants. Plusieurs résolutions prises
par 1'Assembléegénérale des Nations Unies recommandaient à
l'Union sud-africaine de soumettre le Territoire du Sud-Ouest
africainà la tiiteiie des Nations Unies conformément aux dispo-
sitions du chapitreXII de la Charte.
Toutefois, l'Union sud-africaine ignore jusqu'à présent les
dispositions de la Charte et les résolutions susmentionnées, elle
ne remplit pas les obligations qui lui incombent, elle vise l'annexion
complète du Territoire du Sud-Ouest Africain. Le Gouvernement EXPOSES ÉCRITS 71
de l'Union sud-africaine n'a rien fait en vue du développement
économique, culturel et social de ce Territoire, mais au contraire
la politique administrative de l'Union conduit à la destruction
des richesses naturelles du Temtoire du Sud-Ouest africain, eue
empêche le développement culturel et social de la population
autochtone, et surtout elle empêche le progrès decette population
vers la possibilité de s'administrer elle-même.
La création d'organismes spéciaux pour la question duTemtoire
du Sud-Ouest africain ne pouvait pas donner et n'a donné aucun
résultat et, étant contradictoire avec la Charte, a rencontré
l'opposition de plusieurs pays. Ainsi à présent - d'après le
Gouvernement polonais - l'adoption de la procédure applicable
aux rapports et aux pétitions et entre autre I'adoption du système
de vote (ce qui devrait être l'objet de I'avis consultatif de la
Cour internationale de Justice) ne pourra pas êtreconforme aux
dispositions do la Chc~rteet 'I>ouGait &\,Gqurr uni<luemcnt des
résultatsnCeatifs.1)i.si>rui)ositionssoun~isàsla n<:u\,iimcsessiondc
1'~ssemblée"~énérale Qu: consistaient entre autres à l'attribution
de privilèges spéciaux à l'Union sud-africaine en ce qui concerne
les rapports et les pétitions émanant du Territoire du Sud-Ouest
africain et qui reviennent aux formules de mandats dans i'admi-
nistration du Sud-Ouest africain, peuvent uniquement faciliter à
l'Union d'échapper aux obligations prises par la ratification de la
Charte. La réalisation de ces propositions mènerait au sanction-
nement du système de mandats désuet et à la réalisation tacite
de statu quo créépar 1'Union sud-africaine contraire à la lettre
et I'esprit de la Charte des Nations Unies. 11est à souligner que
la Charte des Nations Unies ne contient aucune disposition qui
permettrait la coexistence du système de tutelle et du mandat.
La situation actuelle dans ce domaine indique que ce problème
exige une solution essentielle et que la transposition de la question
sur le niveau de procédureéquivaut à une fuite devant le problème
même. C'estpourquoi le Gouvernement de la République populaire
de Pologne maintient catégoriquement son attitude, à savoir,
que le Territoire du Sud-Ouest africain doit êtretransmis sous
tutelle des Nations Unies.
A la lumière de dispositions nettes et non équivoques de la
Charte et la limitation stricte des compétences de la Cour inter-
nationale de Justice, les questions présentées à cette Cour sont
entièrement inutiles.72 \\'RITïEKSTATEMENTS
6. WRITTEN STATEMENT OFTHE GOVERNMENT OF INDIA
REGARDING THE VOTING PROCEDURE OF QUESTIONS
RELATING TO REPORTS AND PETITIONS CONCERNING
THE TERRITORY OF SOUTH-WEST AFRICA
On December 6, 1949, the General Assembly adopted a resolu-
tion recalling its previous resolutions concerning the Territory of
South-West Africa adopted on December 14, 1946, November 1,
1947, and November 26, 1948. respectively and declaring it "desir-
able that the General Assembly, for its further consideration of the
question, should obtain an advisory opinion on its legal aspects".
The Ceneral A:jsembly decided, therefore, to submit the foilowing
questions to the International Court of Justice, with a request that
an advisory opinion be "transmitted to the General Assembly
before its fifth regular session, if possible".
What is the international status of the Territory of South-West
Africa and what are the international obligations of the Union of
South Africa airising therefrom, in particul:r
(a) Does the Union of South Africa continue to have intema-
tional obligations under the Mandate for South-West Africa
and, if so, what aretbose obligations ?
(b) Are the provisions of Chapter XII of the Charter applicable
and, if si), in what manner, to the Territory of South-West
Africa ?
(c) Has the Union of South Africa the competence to modify
the. internationalstatus of the Territory of South-West
Africa, or, in the event of a negative reply, whereoes the
competerice rest to determine and modify the international
status of the Territory?
The request was filedin the Registry of the Court on December 27,
1949. On Decernber 30, 1949, the President issued an order fixing
March 20, 1950, as the date of expiry of the tirne-limit for the
submission of u-ritten statements by Govemments. Such statements
were submittecl within the time-limit by Egypt, the Union of
South Africa, the United States of America, India and Poland.
At pub1icsiti:ings held from May 16 to May 23, 1950, the Court
heard oral statements, on behalf of the Secretary-General of the
United Nations, the Government of the Philippines and the
Government of the Union of South Africa.
The Court's Opinion was announced on July II,1950. Separate
opinions were given by Judges iifch'air and Read, and dissenting
opinions were $;iren by Judges Alvarez, de Visscher and ICrylov. EXPOSES ÉCRITS 73
While the Court had deemed it unnecessary to consider sepa-
rately the general introductory question before it, the reply was
given to this question that "South-West Africa is a territory under
the international Mandate assumed hy the Union of South Africa
on December 17, 1920."
As to Question (a), the Court adopted, by twelve votes to two,
the foUowingreply :
"that the Union of South Africacontinuesto have theinternational
obligations stated in Article2 of the Covenant of the League of
Nations and in the Mandate for South-West Africa as well as the
obligation to transmit petitions froin the inhahitants of that
Temtory, the supervisory functions to be exercised by the United
Nations, to which the annual reports and the petitions are to
be submitted, and the reference to the Permanent Court of Inter-
national Justice to he replaced by a refefence to the International
Court of Justice, in accordance with Article of the Mandate and
Article 37 of the Statute of the Court."
The supervisory functions of the League of Nations were based
upon Article 22 of the Covenant and Article 6 of the Mandate for
South-West Africa. Article 22 (7) required each Mandatory to
render to the Coiincil an annual report in reference to the mandated
territory, and Article22 (9)provided for a permanent commission
to receive and examine the annual reports and to advise the Council
on al1matters relating to the observance of the Mandates. Article 6
of the Mandate required the Mandatory to make to the CounciL
"an annual report to the satisfaction of the Council, containing full
information with regard to the territory, and indicating the meas-
ures taken to carry out the obligations assumed" in certain articles
of the Mandate. The Court took the view that the obligation to
submit to sucli supervision did not disappear when the Council of
the League of Nations ceased to exist.
The Court referred to an "innovation" by which the supervisory
function of the Council was rendered more effective. This was
the resolution adopted hy the Council of the League of Nations
on January 31, 1923, by which the Council decided that a certain
"procedure shall be adopted in respect of petitions regarding
inhabitants of mandated territories". No reference was made to
the power which the Council of the League of Nations must have
had to change the procedure, or to abolish it altogether. Yet the
establishment of this procedure was found to have bestowed a
"right" on the inhabitants of South-West Africa, and the right
"which the inhabitants of South-West Africa had thus acquired"
aras found to have been "maintained" by Article 80 (1) of the
Charter. The Court proceeds to say that the "Dispatch and
examination of petitions form a part" of the supervision to be
exeiçised by the United Nations, concluding that the Govemment
of the Union of South Africa is obliged to transmit petitions tu
the General Assernbly of the United Xations.74 WKITTEX STATEMENTS
Having conc:luded that the supervisory functions of the Council
of the League of Nations have devolved upon the General Assembly
of the United Nations, the Court found it necessary to state a
qualification. I:t said that
"South-West Africa is still to be considered as a territory held
under the Mandate of December17, 1920.The degreeof supervision
to be exercised by the General Assembly should not therefore
exceed thtit which applied under the Mandates System, and should
conform as far as possibleto the procedure followedin this respect
by the Coiincil of the League of Nations."
It was added that "these observations are particularly applicable
to annual reports and petitions".
The Court's Opinion was considered at some length by the
Fourth Committee at the fifth session of the General Assembly,
and on Decernber 13, 1950, the General Assembly resolved to
accept the opinion and to urge the Government of the Union
of South Afrii:a to take the necessary steps to give effect to it.
The fifth session of the U.N. General Assembly appointed an
ad hoc Committee on South-West Africa to carry on negotiations
with the Union Government regarding the implementation of the
Advisory Opinion of the International Court of Justice. The
ninth session of the U.N. General Assembly adopted on October II,
1954, a set of special rules laying down the procedure in dealing
with reports and petitions relating to the Territory of South-West
Africa. This resolution contains the foilowing mle regarding voting
procedure :
"Special RuleF :Decisionsofthe GeneralAssemblyon questions
relating to reports and petitions conceming the Temtory ofuth-
West Africa shall be regarded as important questions within the
Nations."f Article 18, paragraph z,of the Charter of the United
On October II, 1954, the General Assembly adopted the
resolution coiitaining Special Rule F. The Assembly, however,
rejected the IJourth Cornmittee's recommendation requiring the
concurrent vate of the Union Government for the adoption of
Special Rule F and also rejected the resolution referring the
matter to the International Court of Justice.
Several delegations felt doubts about the legality of the
voting procedure adopted by the General Assembly and were in
favour of subrnitting the question to the International Court for
its advisory opinion. Consequently the Fourth Committee again
recommerided to the General Assembly the adoption of the
resolution referring the question to the International Court. This
resolution was ultimately adopted by the General Assembly on
Xovember 23, 1954. and transmitted to the International
Court of Justice on December z, 1954. The General Assembly, EXPOSÉS ÉCRITS 75
in its resolution of November 23, 1954, requested the Court to
give an opinion on the following questions :
(a) 1s the followingRule on the voting procedure to befollowed
by the General Assernbly a correct interpretation of the Advisory
Opinion of the International Court of Justice of II July, 1g50 :
"Decisions of the General Assembly on questions relating
to reports and petitions concemingthe Temtory ofSouth-West
Africa shall be regarded as important questions within the
meaning of Article 18,paragraph z, of the Charter of the
United Nations". ?
(b) If this interpretation of the Advisory Opinionof the Court
is not correct, what voting procedure should be followed by the
General Assembly in taking decisions on questions relating to
reports and petitions conceming the Territory of South-West
Africa?
The voting procedure in the General Assembly is regulated by
Article 18 of the Charter as follows :
(i) Each Member of the General Assembly shall have one vote.
(ii) Decisions of the General Assembly on important questions
shaii be made by a two-thirds majonty of the Members present and
voting. These questions shail include recommendations with respect
to the maintenance of international peace and security, the election
elec-
of the non-permanent members of the Security Council, the
tion of members of the Economic and Social Council, the election of
members of the Trusteeship Council in accordance with para-
graph x (c) of Article 86, the admission of new Members to the
United Nations, the suspension of the rights and privileges of
membership, the expulsion of Members, questions relating to the
operation of the Trusteeship System and budgetary questions.
(iii) Decisions on other questions, including the determination
of additional categories of questions to be decided by a two-thirds
majority, shall be made by a majority of the Members present
and voting.
As to the voting procedure in the General Assernbly, the Charter
distinguishesbetween "important questions" and "other questions".
Important questions shall include ...."questions relating to the
operation of the Trusteeship System". Such a question is to be
decided by a two-thirds majority of the Members present and
voting. Rule 78 of the Rules of Procedure interprets the phrase
"Members present and voting" to mean "Members castingan affirm-
ative or neeative vote. Members who abstain from votine are u
considered as not voting."
The Court in giving its Advisory Opinion in 1950 said "South-
West Africa is stiii to be considered as a temtorv held under the
Mandate of December 17, 1920. The degree of &pen,ision.to be
exercised by the General Assembly should not therefore exceed76 XVRITTEN STATEMENTS
that which applied under the Mandates system, and should con-
form as far as possible to the procedure followed in this respect by
the Council bf the League of Nations." It was added that "these
observations are particularly applicable to annual reports and
petitions". It inust be assumed that while giving this decision the
Court was aware of the different voting procedure in the Covenant
of the League of Nations (Article 5) and in the Charter of the
United Nations (Article 18). The advice contained in the Opinion
of the Court tliat the degree of supervision to be exercised by the
General Assembly "should conform as far as possible to the proce-
dure followed in this respect by the Council of the League of
Nations" could be understood to be operative only within the
provisions of the Charter. The qualifications and limitations adum-
brated in the phrase "as far as possible" must be kept in view. The
Court could not be assumed to have intended to qualify the
provisions of the Charter with respect to the voting procedure.
The two most important organs of the League of Nations, the
Council and the Assembly, were permitted to make use of various
methods of voting. Article 5 of the Covenant provides that "Except
where otherwise expressly provided in the Covenant, or hy the
terms of the present Treaty, decisions of any meeting of the
Assembly or o:lthe Council shaii require the agreement of al1 the
Members of th<:League represented at the meeting...." On matters
of importance the unanimous consent of those who are present is
generally required, while unimportant decisions are taken on a
majority basis. Where unanimity among those present is required
it may on some occasions prove to be so obstructive as to prevent
action. The history of the League is replete with such instances.
The principle of unanimity is a legacy from the concept of
sovereignty. In a world where national sovereignty is so widely
stressed, the principle of unanimity as opposed to the more con-
venient doctrine of a majority decision has a natural appeal. The
rule of unanimity has, in fact, been treated by many persons as an
inevitable corollary of the theory of sovereignty, which, as it is
generally understood, would subject no State to any limitation
against its will. Writers on international law have often so defined
sovereignty and independence that the requirement of unanimity
for any concerted action of a group of nations would foiiow. \Vhile
it is entirely natural and logical to assert a connection between
sovereignty as a theoretical concept and the rule of unanimity, it
is quite another thing to claim that the relationship consistently
exists in practice. From a staunch adherence to the principle of
absolute sovewignty . States are gradually becoming aware of the
need of limitations on their sovereignty. This isbsolutely essential
for the harmonious working of the family of nations. Also, a gra-
dual adoption of the majority principle as opposed to one of
unanimity is seen in the practice of international conferences. The
United Nation!; Charter has not accepted the principle of unanim- EXPOSÉS ÉCRITS 77
ity except in the Security Council. The results of the mle of
unanimity in international conferences have not been reassunng.
It has proved to be highiy dilatory in some cases, and intolerably
obstructive in others.
In view of the above facts it is to be assumed tbat the Court,
when advising the General Assembly in its exercise of supervision
over the Temtory of South-West Africa to abide by the procedure
of the Mandates System as far as possible, did not intend to revive
the unanimity principle. This position is further strengthened by
the fact that Article 18 of the Charter does not refer to any
principle of unanimity. The Court could have intended, in this
context, the General Assembly to be governed by the provisions
of the Charter only. The General Assembly could not travel
outside the Charter. It is bound to act within the Charter. There-
fore with respect to the reports and petitions regarding Tmst
Territories the General Assembly is bound by Article 18 of the
Charter. Clause z of Article 18 of the Charter says that "questions
relating tothe operation of the Triisteeship System" is an important
question. Consideration of reports and petitions is a question
relating to the operation of the Trusteeship Systern. The fact
that South Africa has not yet entered into a trusteeship agreement
with the United Nations regarding South-West Africa will not
change the above position as far as the General Assembly is
concerned.
It is accordingly submitted that Special Rule F of the Rules
of Procedure as adopted by the General Assembly resolution
of October II, 1954, is correct.
It is ûlso subrnitted that the procedure which as nearly as
possible approximates the procedure foUowed by the Council of
the League of Nations is the one prescribing two-thirds majority
and that on this ground also Special Rule F is to he held to be
correct.
In conclusion it is respectfully submitted that the Court may
be pleased to answer the questions referred to it in the following
manner :
That the following Rule on the Voting Procedure to be followed
by the General Assembly is a correct interpretation of the Advisory
Opinion of the International Court of Justice of July II, 1950:
"Decisions of the General Assembly on questions relating to
reports and petitions concerning the Territory of South-West
Africa shall be regarded as important questions within the meaning'
of Article 18,paragraph 2, of the Charter of the United Nations."
Written Statements