COUR INTERNATIONALE DE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
STATUT INTERNATIONAL
DU SUD-OUEST AFRICAIN
AVIS CONSULTATIIJUILL1950 INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
INTERNATIONAL STATUS
OF SOUTH-WEST AFRICA
ADVISORY OPOF JU11t1950 TABLE DES MATIÈRES - CONTENTS
PKEMIÈRE PARTIE. - REQIJÊTE
POUR AVIS CONSULTATIF ET PIÈCES
DE LA PROCÉDURE ÉCRITE
PART 1.-REQUEçT FOR ADVISORY OPINION
.4ND DOCUMENTS OF THE II'RITTEN PROCEEDINGS
SECTION A. - REQURTE POUR AVIS COPITSULTATIF
SECTION \TA.-REQUEST FOR ADVISORY OPINION
Pages
1. - Lettre du Secrétaire généraldes Nations Unies au Pré-
sident de la Cour(19 XII49). - Letter from the Secretary-
General of the United Nations to the President of the
Court (19 XII 49) . . . . . . . . . . . . . . 7
II. - Résolution adoptée par l'Assemblée généraledes Nations
Unies le 6décembre 1949.- Resolution adopted by the Gen-
eral Assembly of the United Nations on December 6th, 1949 8
SECTION B. - DOCUMEK'TS TRANSMIS
SECTIOX B.-DOCUMENTS TRAXSMITTED
1. - Documents transmis par le Secrétaire généralà la Cour
internationale de Justice conformément à la résolution du
6 décembre 1949. - Documents transmitted to the Inter-
nationalCourt of Justice bylie Secretary-General in accord-
ance with the Resolution of December 6th, 1949 . . . Io
2. - Documents soumis à la Cour par le Secrétaire généraldes
Nations Unies à la requète de la Cour. - Documents sub-
mitted to the Court by thc Secretary-General of the United
Nations at the request of the Court . . . . . . . . 35
Uocurneiits traiisniis par le SecrCtaire général(chemise 3-. Doc-
uments transmitted by the Secretary-Geiieral (Folder 3) :
'~fr.~ l s .,II. I I iir I'i>r~:ii~i~i. ii1r~ril:ltisil:~i~~.
- 1 1 1 :lis l'I f I l 1 lllrl1 0 1 z l 1 37
SECTION C. - LSPOS~:S ÉCRITS
SECTION C.-TVRIT'L'EN. STA'SEMICNTS
1. - Exposé du Gouvernement égyptien . . . . . . . . 67
2. - Statement submitted by the Government of the Union of
South Africa . . . . . , . . . . . . . . . . 72350 ~h81.i~ DES IIATIÈRES
I'ages
3. - \Vritten statemeiit of tlie Uiiited States of hmerica . . . Si
4. - \\'ritteil statemeiit of the Government of India . . . . . 140
j. - Exposédu Gouverrienieiit poloiiais . . . . . . , . . 152
DEUXIEME PARTIE. - SÉANCES PUBLIQUES
ET ESPOSÉS ORAUX
PART II.-PUBLIC SlTTINGS AND ORAL STKI'EMENTS
Procès-verbaux. - Minutes :
16 v jo (m.) . . . ijj 20 v jo (m.) . : . 1j7
» i, » (a.-m.-aft.) 1j6 22 » » i, . . . 1j8
17 ii n (a.-m.-&.) 1576 23 », iii (m.)..-a, ,) 158
19 ii » (m.) . . . 1j7 II vil D » . . . 1%
ANNEXE AUX PROCÈS-VERBAUX
ANNEX TO THE MINUTES
1. - Exposé de RI. Ivan S. Kerno (Xations Unies) :
Séancedu 16 v 50 (m.) . . . . , . . . . . . 160
ii » 1, D D (a.-m.) . . , . . , . . . , '76
Sitting of 17 v 50 (in.) . . . , . , , . . . . 198
, ,, ,, ,, ,, (aft.) ', . . . . . . . . . . 223
2. - Statement by hl.José Ingles (I'hilippines) :
Sitting of rg v jo (m.). . . . . . . . . . . . 239
,, ,, 20 ,, ,, ,, . . . . . . . . . . . . 259
3. - Statement by Dr. Stcyii (South Africa) :
Sitting of 20 \' 50 (m.). . . . . . . . . . . . 273
, ,, zz ,, ., , . . . . . . . . . . . . 2jS
,, ,, ,, ,, (aft.), . . . . . . . . . . . 293
,. ., 23 ., ,. (m.) . . . . . . . . . . . . 304
TROISIÈME PARTIE. - CORRESPONDANCE
PART III.-CORRESPONDENCE
1. The Secretary-Geiier;il of the United Xations to the Presideiit
of the Court (19 sir 49) . . . . . . . . . . . . . . 320
z. Le Greffier au niiiiistrc des Affaire5 étrangèresd'ilfghdnistaii
(30 Xi1 49) . . . . . . . . . . . . . . . . . . 320
3. Le Greffier au Secrbtaire généraldes Nations Unies (30 XII 49) y21
4. Le Greffier au Secrétaire générüldes Xatioiis Uiiies (j I jo) 321
j. Le Secrétaire d'ktat a. i.de la République d'Haïti au Gref-
fier (20 I jo) . . . . . . . . . . . . . . . . . 321
6. The Secretary-General of the United Xatioiis to the Presitlciit
of the Court (23 I 50). . . . . . . . . . . . . . 322 SECTION C. - EXPOSÉS ÉCRITS
SECTION C.rWRITTEN STATEMENTS
Le régime des maiidats internationaux n'a pas étédestiné à
conférer à la Puissance mandataire la souveraineté sur les popu-
lations des territoires soumis aux mandats. Le mandat recon-
naît au mandataire des pouvoirs administratifs, d'autant plus
forts que la population est plus arriérée;mais, mêmetrèsétendus,
comme dans les mandats (1C »,ils ne pourraient jamais atteindre
un pouvoir de libre disposition, un droit réel de souveraineté.
z. - Et si le Gouvernement de l'union sud-africaine a été
autorisé dès 1920, en vertu du texte original du mandat, à
administrer Ie Territoire du Sud-Ouest africain : «en tant que
partie intégrante de l'Union iià l'instar de tous les mandats (C ii,
iln'en est pas moins vrai qu'il n'avait qu'un pouvoir d'adminis-
tration comportant diverses obligations internationales. Aussi,
pendant vingt ans d'existence de la Société des Nations, l'Union
sud-africaine n'avait-clle cessé de présenter à la Commission
permanente des hcandats prévue à L'article 22 du Pacte de la
S. d. N., les rapports annuels du Gouvernement de 1'Uniori sur
son administration du Sud-Ouest africain. En examinant ce
rapport annuel, la Commission interpellait souvent le représentant
du Gouvernernent de l'Union sur sa dite administration, rendant
ainsi effectifle contrôle de la S. d. N.
3. - Par la dissolution de la S. d. N., la Commission des
Xandats a cesséd'exister, mais il serait téméraire d'en conclure
que les obligations internationales, découlant pour la Puissance
mandataire en vertu du mandat, auraient cessé d'exister ; et
que désormais celle-ci serait libre de disposer du territoire.placé
sous son mandat comme bon lui semblerait, sans rendre compte
à qui que ce soit de son administration ou cle son action.
4. - Admettre pareille conclusioi~, c'est feindre d'ignorer
qu'une nouvelle organisation internationale a pris en charge,
sous une forme iiiêmeplus perfectionnée ct plus développée,les
fonctions internationales qu'exerçait jadis la S. cl. K. au nom
d'une communauté internationale encore plus restreinte.
j. - Pour ce qui concerne particulièrenient lc régime des
mandats prévu clans l'article 22 du Pacte, la dissolution de laS. d. N. a mis incontestablemerit firi à ses fonctions relatives au
contrdle de l'administration des Puissances mandataires et au
sort des territoires sous mandat. Mais il y a lieu de rappeler
qu'avant de s'éteindre l'Assemblée généralecle ln S. cl. N., dans
sa résolution unanime d'avril 1946, à sa dernière session de Genève,
avait pris soin de noter que ((des priricipes correspondant à ce
que déclare l'article 22 du Pacte sont incorporés dans certains
chapitres de la Charte des Nations 'Cinie)).De même, dans sa
dite résolution, la S. d. K. enjoignait aux Puissances nlandataircs
de continuer à administrer les territoires sons mandat conformé-
ment aux obligatioris qui leur incombaient de par les niandats
respectifs, jusqu'à ce que d'autres soliltions soient prises d'un
commun accord par l'Organisation des Nations Unies et par
les Puissances mandataires.
6. - Cette résolution de l'Assemblée générale de la S. d. N.
doit s'interpréter à la lumière du chapitre XII de la Charte des
Nations Unies sur le régime international de tutelle, et notamn-ient
des articles77, 79 et 80 dudit chapitre. Le premier de ces articles,
dans son paragraphe premier, stipule que le régime de tritelle
s'appliquera, entre autres, aux territoires ACTUELLEMEKT SOUS
mandat qui viendraient à être placés sous ce régime en vertu
d'accord de tutelle. Le paragraphe 2 de ce même article ajoute
qu'un ACCORD UI,TÉRIEUR déterminera quels territoires rentrant
dans cette catégorie - ou dans les autres catégories mentionnées
au paragraphe I de cet article - seront placés sous le régime
de la tutelle et à quelles coi~ditions. L'article 79 précise que les
conditions de tutelle, pour chacun des territoires DESTINÉS A
ÊTRE PLACES SOUS CE RÉGIME, de meme que les modifications et
amendements qui peuvent être apportés à ces conditions, feront
l'objet d'un accord entre les Etats directement intéressés, Y
COBIPRIS LA PUISSANCE MANDATAIRE, dans le cas de territoire
sous mandat d'un Membre des Xations Unies, et seront approuvés
conformément aux articles 83 et 85 (c'est-à-dire par le Conseil
dc Sécuritépour les zones désignéescomme stratégiques, et par
l'Assemblée généraleet le Conseil de Tutelle, pour tous les autres
zones ou territoires).
7. - A ajouter que l'article 80 de la Charte avait pris soin
de souligner cians son premier paragraphe que jusqu'à la con-
clusion des accords de tutelle coiiforniément aux articles 77, 79
et Sr, «aucune disposition du chapitre XII de la Charte ne saura
être interprétée comme modifiant directement ou, indirectem-nt,
en aucune manière, les droits quelconques d'aucun Etat ou d'aucun
peuple ou les termes d'actes internationaux en vigueur auxquels
des Membres de l'.Organisation peuvent être parties 1). Cette
clause de sauvegarde ne devant être interprétée cependarlt comme
motivant un retard ou un ajournement de la négociation et de la
conclusion d'accords pour placer des territoires sous mandat ouautres sous le régime de tutelle, prévu à l'articl77. (Voir tcste
anglais de l'art. So, par. 2, cle la Charte.)
S. - En applicluaiit ces dispositions au cas concret sous
exrimeri, il scmblc en résrilter que l'acte origi~ial du mandat
conférant à I'Tjriioii sucl-sfricaiiie l'aciministratiori du Territoire du
Sud-Ouest africain, avec lcs droits et lcs obligations quc cc msntlat
comporte, doit iiéccssriiremcntcontiriuer à recelvoirson application,
rlaiis toute la mcsiirc clripossible, et cc jusqu'à la coricluçioii d'un
accord particrilier dc tritelle, ou jusqu'à ce cluc le sort de ce
territoire soitiitrcment décidépar les organes intcmation:~leinent
compétents.
g. - Les testes précités laissent voir en outre qu'il n'esiste
aiicunc obligation juridique, iii5 charge des organes des i'ations
Unies, ni surtout ~ charge des Puissarices manclatüircç, dc trans-
férer les territoires actuellement sous mandat, en territoires sous
tutelle. Les dispositions de l'article77 semblent avoir 1111caractkre
nettement facultatif ;et l'article 80, paragraphe 2, lui-même se
trouve subordonné aux clriuscs facultatives de I'articlc 77.
IO. - Il résulte kgnlcmciit clcsclits textes que le conseiitcment
de la Puissancc mandataire est nécessaire pour présenteruri
accord de tutelle ou pour ei-iarrêter les conditions (voir article 77,
alinéa 2, et l'articic79 de la Charte). Et il n'y a aucuiie autre
disposition dans la Charte (lue l'on pourrait interpréter comme
étant de nature à crkcr, explicitement ou implicitement, uiie
obligation de soumettre uii accord de tutelle oii d'imposer juri-
diquement ce régime de tutelle aux Puissances maiidataircs qiiaiit
aux territoires qu'elles adrnirlistraicnt en vertu d'lin actc intcr-
national de mandat.
Ir. - Par coritre, on ne saurait adrncttre que 1s Puissance
mandataire puisse disposer comrnc bon lui semblerait du territoire
placé sous son mandat, ou cn modifier unilatéralen~eiit lc statut
international. 131-1c faisant, cllc méconnaîtrait en effet rion point.
seulement son propre titrc: l'acte original du müildi~t ; mais
aussi les décisions compétemment prises par les organes de la
S. d. K. au nom de la communauté iiiternationnlc, ou du moins
d'un nombre considérable d'États se trouvant tous Membres à
présent des Nations Unies.
rz. - Tenant compte de ces considérations de fait ct de droit,
on devrait admettre, 5 défaut d'un accord de tutelle, que 13
Puissancc mandataire doit continuer à administrer le territoire,
à lui confié, dans l'esprit du mandat en respectant, clans toute
la mesure du possible, les obligations mises à sa chargc par l'acte
du mandat, Ceci est tout & fait conforme du resteà la résolution
unanime de la dernière Assemhlée généralede la S. cl. N. du
niois d'avril 1946. 13.- L'Organisation des Nations Unies ayant hérité des .
pouvoirs et de la ((mission sacrée de civilisationIIde la S. d. K.
vis-à-vis des peuples non encore capables de se diriger eux-mêmes,
commc précisément le sont les populations des territoires sous
mandat, il paraîtrait difficile de vouloir refuseaux Nations Unies
Ic pouvoir de contrôler l'administration du Sud-Ouest africain,
dont aucun acte contraire, internationalement reconnu, n'est
venu modifier le statut international établi en 1920.
14.- Ce controle pourrait continuer E s'exercer à l'heure
actuelle par les organes correspondant le plus (quant à leurs
attributions} au Conseil de la S. d. N. et à la Commission perrna-
nentc des hfandats, à savoir: l'Assemblée génCraledes Nations
Uiiics et le Conseil de Tutelle. Cc dernier faisant en l'espèce
l'Œuvre qu'accomplissait aiitrefois la Commission permanente des
Mandats, se résumant comme suit : I)examiner le rapport annuel
qucdevrait présenter aux Nations Unies le Gouvernement de
l'Union sud-africaine sur son administration du Sud-Ouest africain ;
2) demander au représentant de l'Union les éclaircissements et
les renseignements nécessaires relatifs A l'administration dudit
territoire; 3) rendre compte de tout cela à l'Assemblée générale
annuelle des Nations Unies.
15.- Devant contiiiuer à administrer lc Sud-Ouest africain
dans l'esprit du mandat qui lui a étéconfiédès 1920, à plus forte
raison i'Union sud-africaine ne saurait s'arroger le droit de modifier
unilatéralement Ie statut dudit territoire. Arrêté par un acte
intcrnational, ce statut ne pourrait êtremodifié lkgalernent que
par un acte contraire ayant la même force et la m6me valeur
juridique. Ceci exigerait l'intervention et le consentement préa-
lablesdu Conseil de Tutelle etde l'Assembléegénéraledes Xations
Unies. Il va sans dire que ces deux organes ne sauraient agir
arbitrairement, mais devraient s'inspirerdes buts du régimemême
des maiidats et des principes dominant de la Charte, y compris
ceus ayant inspiré les chapitres XI et XII.
16. - A la lumière de ce qiii précède,il est rclativement aisé
de répondre aux questions posées par l'Assemblée générale dans
sa Résolution du 6 décembre 1949.
De l'avis du Gouvernement égyptien :
IO Le Statut intcrnational du Territoire du Sud-Ouest africain,
continuant à être celui d'un territoire sous mandat, l'Union
sud-africaine doit continuer à administrer ce territoire dans
l'esprit du mandat avec toutes les obligations que ce systbme
comportait d'après l'acte original du mandat, en tenant compte
seulement, au point de vue de ia procEdure, du changement
survenu depuis, par l'institution de l'organisation des Nations
Unies ayant pris les lieu et place de la S. ci. N. ESI~OSÉ DU GOUVERXE3IE3'T ~CI~PTIEX (II III 50) 7I
za Les dispositions du chapitre XII rle la Charte sur le ritgime
international de tutelle ne s'applir1ueront au Tcrritoire du
Sud-Ouest africain que si ce territoire venait ji étre placé
sous ce régime en vertu d'un accvrd entre les Etats dirccte-
ment intéresséscompreiiant bien entendu l'Union sud-africaitie,
et ap~rouvé conformément aux articles 83 et S5 de la Charte.
En attendant, le Conseil de Tutelle aura à l'égard de ce terri-
toire scnsihlement les mêmes attributions qu'avait jadis la
Commissioil permanente des &Iaiidats.
3' L'Union sud-africaine est sans compétencepour modifier lestatut
international du Territoire du Sud-Ouest africain. Iléterminé
par uii acte international, ce statut exige pour sa modification
un acte international contraire, lequel, vu le nouvel agence-
ment de la cornmuriauté internationale, nécessite pour Ic
moins l'approbation du ,Conseil dc 'I'utellr:et de 1'AsscmblCe
généraledes Nations Unies.
Le rI mars 1950. 2. STATERIEBT SUBRlITTED Bk+ THE GOVERNhIEN'I'
OF THE UNIOX OF SOUTH AFRICA
I. Thc Court is confronted with a numbcr of questions, the
first two of which, iiarnely, "What is the i~iternatio~id stütus of
the Territory of South-West Africa and what arc the international
obligations of the Union of South Africa arisiiig therefrom?", are
not only of a general nature, but also such that the answers to
them depend or1 the answers to the particular questions. The
Goveriiment of the Union of South Africa wiH therefore in the
present statement dcal with the particular questions.
2. The first particular question is:
"Does the Utlion of SoutJt Africa colztiitzlo ltuve infer-
~tational obligations ttnder the Ilifandate for South-West AJrica
awd, if so,wltafare those obligatio~zs?"
There cnn bc oliligations under the RIaiidatc only if that instru-
ment still esists as a document having legal force and effect.
Whether thc Mandate continues to exist as such a document,
depends in turn on whether either the Priiicipal Allied and Asso-
ciated Potvers, in favour of whom Germany reriouiiced her overseas
territories, or the United Xstions, by virtue of succession to, or
assumytion of, the fiinctions of tlie Leagile of Nations, can claim
legal rights in respect of the BIandate.
3. It is hardiy neccssary to revie~ir indetail the origins of the
mandates system. The important legal fact which crnergeç clearly
from the investigations of generally accepted authoritieç, is that
the legal titlcby which a mandatory exercised the administration
of a mandnted tcrritory \vas a double one, deriving on the one
hand from the Supreme Council ofthe Principal Allicd and Asso-
ciated Powers which appointed the mandatorics, and on the
other hancl, from the Council of thc League of Nations tvhich
confirmed the mandates.
4. In order to determine whether the Principal Allied and
Associatcd Powers have any legal rights at present in respect of
the mandates or, coiiversely, whether the Union of South Africa
has any obligations toivards those Powers in respect of its adminis-
tration of South-West .4frica, it is neccssary to estabIish the exact
nature of the renunciation by Germany in Articlc 119 of the Treaty
of Versailles ofal1her right and title over her overseas possessions
in favour of the Principal Allied and Associated Powers.
5. In this connexion, the judgment of the Appellate Division
of the Supreme Court of South Africa in the case of Rex verszts STATEJIEST UXIOS OF SOUTH AFKIC.4 73
Cliristiari(1924 A.D., page xor) may be of some assistance. The
then Chief Justice stated as follo~vs : "The cspression 'renounce
in favour of' issometimes used in thc treaty as equivalent to
'cedc to'. 1337Articles 83 and 87,for instance, Germany renounced
in favour of Cxcchoslovakia and of Poland respectively al1 right
ancl title over territory within certain boundaries separately
specified. That was in effect a cession in each case of the territory
indicated ; it ceriscdto form part of Germaiiy, and it became portion
of the nciv Stüte. Xot so with the overseas posseçsions ; or at any
rate with siich of theni as fell within the operation of Article 22.
They were not by Article II~ cedcd to al1 or any of the Principal
Powers, aiiy inore than the City of Ilanzig was ceded to them
uncler Article roo. The anhrntsessential to n legal cession !vas not
preserit on either side. For the signatories must havc inteiidcd
that stich posçcssions should be dcnlt with as provided by Part 1
of the Trcaty ; thcy Ivere placcd nt the disposal of the Princii>al
Powers rnercly that the latter rnight take al1 necessary steps for
their administration on a mandatory basis. The difference betwecri
territory actually ceded and territory rcnounced in order to be
mandated is shown by a cornparison of Articles zjq and 257. In
the former case, the cessionary is compelled to assume responsi-
bility for a proportion of the Gerrnan debt ;in the latter, no such
obligation is imposed on the mandatory in spite of the fact that
al1German public property in the territory [of South-\Test Africa]
is transferrcd to il. The intention of the signatories seems to havc
been to place certain overseas possessioris relinquished by Germaiiy
up011a basis new to international law, and regulated primarily
by Article 22 of the Treaty."
6. Iii other words, the Principal Powcrs \i7eregiven a commission
to dispose of the Gerrnan territories in c~uestioiiin a spccifiedmanncr,
which they did oii Rlay 7, 1919) and bIay zo, 1920, by assigning
those tcrritories to mandatorieç, by subsequent agreement on boun-
daries and by notifying to the TdeagiieCoi~ncilthe terms anci con-
ditions of the mandates ivhich they proposed should be adopted b~.
the Couticil. Having thus performed thcir commission, the Principal
Powers rvcrc /zr?tcto@cio. \Vhatcver title they possesçed to the
German tcrritoricsin question beforc the establishment of the
mandates systcm was mcrely a trari~itioi-iültitle of which thcy
divestccl tlicmselvcs by doing whnt thcy had agreed to do.
7. The rnaiiclates themselveç arc in the form of grants from thc
League Council, iiot from the Principal Poivers, and mandatories
undertook to cscrcise the mandates on behalf of the Lcague of
Nations, not oii behalf of the Principal Powcrs. Indeed, at no time
since the allocation of the mandates has there been concrete cvidence
that the Principal Poners, as çiich, have clai~nedrightç or rcgarded
themschres, as such, as having duties in respect of the admiriistra-
tion of mandatcd territories.74 STATEJIEST USIOS OF SOUTH AFRICA
8. After the allocation of the mandates, the administration of
thosc territories was determi~iedsolely by Article 22 of the Covenalit
and by the terms of the individual mandates. Thus, amendments of
the texts of mandates, the alteration of the frontierç of mandated
territories and the termination of the mandates çystem in rcspect
of those territories which beca~nc independent, urere brought aborrt
without the participation of the Principal Powerç.
cj.It is true that the United tat te kf America, as an Associated
Power, put forth a claim to participation in the allocation of maii-
dates and in the drafting of their terrns after rejecting the Peace
Treaty. 13ut that claim was limited to participation in the original
establishment of the mandates system under Article 22 of the
Covenant. The C Mandates had, however, already been confirmed
when the United States replied to the invitation from the League
Council to take part in the confirmation of mandates. Rights
acquired subsequently by the United States were in consequence
of agreements with individual mn~idatories, but no such agreement
exists with respect to South-West Africa.
IO. It is true, alço, that Article401 and 43 of the Peace Treaty
with Italy of Fcbruary IO, 1947 ,re not inconsistent with the pos-
sible contention that the Principal Powers are, as such, still con-
cerned with mandatory administration and can claim legal rights in
respect thcreof. Those articles are, in themselves, however, no proof .
of the existence of, or of a daim to,such rights. They are just as
little inconsistent with the contention that the %PrincipalPowers
have no such rights and that they were inserted in the Treaty en
ab.rtndanti caztteln (Article 40 to the extent that it refers to such
rights and Article 43 in its entirety), in order to preclude Italy from
putting forth claims in the future.
II. 111the light of the abovc considerations, the Government of
the Union of South Africa contend that they do not have inter-
national obligations under the Mandate tolvards the Principal Allied
and Associated Powers.
12. The next question is whcther the Union of South Africa
owes to the United Nations any obligations under the Mandate
which it previously owed to the League of Nations. The aiiswer
must necessarily depend on whether the United Nations had
succeeded to, or assumed, the functions of the League of Satiotis
relating to the inandates system. Clcarly, the Union of South
Africa cün have no obligatioiis under the Mandate towards the
non-cxistciit League of Nations, so that, assuming that thst
1Article40 :Italy liereby renounccs al1 rights, titlea, and claims deriving froni
the mandate systern or from any iindcrtakings givin connexion thcrewith,
and nllspecial rights of the Italian State in rofany mandated territory.
aArticle43 :Italy hereby renounccany rights and interests she rnay passess
by virtue of Artic16of theTreaty ofLausanne signcdon July 24,1923, STATE3IEST USZOS OF SOUTH AFRICA 75
organizatiori had no successor i11law, the alandate as a legally
enforccahle instrument niust be regarded as having ceased to exist.
13.Similnrly, if the United Nations, iiot as successor to, but
as substitiite for, the League of Nations, did not assunic the
functions of thc Lcague in relatiori to the mandates sgstem,
there could hc iio continuance of the obligations under the Mandate
in the sense that they \vould now hc due to the United Katioiiç.
14. If the United Nations is to be rcgarded as the siicccssor
in law to the League of Nations, it is not sufficient todemonstrate
that it is a substitute for the League. It must be demonstrated
in addition that the rights and obligations of the League have
passed to'thc United Natioiis, succession being a substitution
plus continuation. This, kiowever, is not possible, for there is no
evidence whatever that in the Uiiitcd Nations there is a con-
tinuation of the personality of the 1,cague. Indeed, the two
organizatioiis cxistcd' for some tirne side by side as distirict
persona, and when the League finally clissolved itself, its lcgal
persoiiaiity dieil ivith it. There was no sigii of a legal nexzts between
thc t\i70 organizatio~is, cach being the creature of a separate
indepeiideiit statute. States which were llembers of the League
did not automatically become hlemberç of the United Nations.
Sorne of thcrn are not rnembers even to-daj.
ij. Nor has the United Xations regarded itself as the legal
successor to thc 1,eague. The Executive Çommittee which sat in
Londo~i from 16 August to 24 November, 1945, and which had,
as one of itç tasks, the drawing up of recommcndations to the
Yrcparatory Coinmission on the transfer of certairi functions of
the 1-eagiie to the United Kations, hüd açcc~itcd thc ideü of a
total trai-isfer of thc League's fiinctinns and asscts to the United
Nations, subject to csceptions and \vithoiit prcjudice to future
action. Although such a total transfer \vas not fiilally reconi-
mencled, thc laiiguage sppropriatc to n legal succes.iion appeared
in the report and recommendations. The report was repudiated
by the Sovict lleiegation on the ground that it niade the United
Nations appcür to be the successor in la\\; to the League. The
yroposals fiiially adoptcd by the Prcparatory Commission avoiderl
<Ie suggcstiori of a "transfer" of functioris :~nd spoke of the
assurnptio~i" by the United Nations of "certain activities"
previously csercisetl by the Leaguc.
16. The commcntary on the Report of the Preparatory Coin-
mission, published by the Governmeiit of the United Kingdom
(Crnd. 6734) states that thc change "avuids the suggestion of
de lzlresuri,ival of any part of the Lcaguc, n resirlt which several
delcgations werc n~isious to achieve".
17. Wliile there has therefore bec11 a rie j~cfo continuity in
rcspect of ccrtairi activities of the 1-eagiic, there has bccn 11076 STATE>IES'T USIOS OF SOUTH AFHIC:l
lcgal succession \\.hich would autornatically erisurc to the United
Nations the right to excrciçe the functions of the Lcague in
rclation to the mandates systein. That being so, the klatidate
for South-\Vest Africa, itiso far as its existcncc depetidecl on
the contiiiued existciice of the legal personality of thc Lcague
of Nations, must be rcgarded as having expirecl.
18. Tt appears to be correct to Say, therefore, that the United
Xations can have legal rights only in respect of those functions
previously escrcised by the League of lu'atio1-i~ ivhich tlie United
Nations has specifically assumed. The General Asscmbly, iil its
Kesolution of 12 Febriiary, 1946, declared "that the United
Xations is 15-illingin principle, and subject to the provisions of
this Rcsolution and of thc Charter of thc Unitcci Xations, to
assurne the exercise of certain fuiictions and pourers previously
critrusted to the League of Nations....", and then l->roccedcd to
eiiumcratc those functiotis aiid powers. It dicI not iticlude in that
cniimeration any functions and powers relatir-ig to the mandates
system.
19. III thc samc Rcsolution, the General Asscrnbly dcclared that
it "will itself examine, or will submit to the appropriate organ of
the United Xations, any request from the parties that the United
Xations should assuine the exercise of functions or powers entrusted
to the 1,eague of Nations by treaties, international conventions,
agreements and other instruments having a political character".
No such request has beeii madc tothe United Nations.
20. Thc Assenibly of the League of Nations, inits I<esolution of
IS April, 1946, relating to mandates, recognized "that, on the ter-
miiiation of the League's existence, its fuiictions with respect to the
mandated territories will corne to an end....". It "noted" that the
Charter of the United Nations embodies princiyles correspondiiig
to those declared in Article 22 of the Coveiiant of the League. But
beyond noting these corresponding principles, itdid iiot take an).
stepsto effect the transfcr of aily of its rights or duticiiirespect of
maiidated territories, to the United Nations. The liesolution of the
League Assembly was latcr thaii that of the General Assembly of
the United Nations, so that, if there had been any intention on the
part of the League that thc United Nations should xssrime functions
and powers relating to mandates, that intention would have bccn
expressed in a mariner similar to that adopted in other rcsolutions
of the same date whereby llembers of the Leaguc, iii so far as itwas
iiecessarp, assented and gave effect to the Kesolutio~i of the Gerieral
Assemblp.of the United Nations. It is clear, thereforc, that whereas
the United Nations assumed none of the Lcague's functions or
powers ivith respect to mandates, and whereas the League recog-
nized that its own functions in that respect had come to an end,there
could be no continuatioii of obligations under tlie mandates towards STATESIEST USION 01; SOUTH AFRICA 77
the Urlitcd Nations. Tlie mandates, and in particular the Mandate
for South-\$'est Africa, must, thercfore, necessarily have ccased to
cxisi as legally enforceable instriiments.
zr. It follows that statcnients made by South African delegates
at the final session of the League of Nations and at sessions of the
General Assembly of the United Nations, to the effect that the
Unioii of South Africa woi~ldcontinue to administer South-West
Africa in accordance with the obligations of the Mandate, or in
accordarice with the spirit of the Mandate, could not bc regarded as
indicative of the continued existence of the alandate itself. The.
r&re statements of the policy which the Governrnent of the Union
of South Africa tvould continue to carry out in South-West Africa,
and 110more legal sigriificancc can be attached to them than csn 1x2
attached to any statement of policy macle by a sovereign, indepen-
dent Statc. lSThatrvas declared on thosc occasions is bcing carried
out at present, but the Govcrnment of the Union of South Africa
do not admit any legal obligation under the Mandate compelling
thern to do so.
22, The second particiilar question is :
"Are the provisions O/ Chapter XII of the Charlerafiplicable
and, if so, zutwhat mamer, to the Territory O/ South-West
Africa ?"
Whcn the Covernrnent. of the Union ofSouth Africa signcd the
Charter, the Territory of South-West Africa was a. mandated
territory and fell within category (a) of Article 77, namely,
"territories riow held under mandate". It is, however, the view
of the Government of the Iinion of South Africa that there is
no legal obligation to place it under trusteeship. The language
of the relevant yrovisioiis of Chapter XII is in their opinion
clearly permissive. The oyening provision in that chapter, namely,
Article 7j, does indeed contain an obligation, but it is an obligation
placed upon tlic United Nations to establish under its nuthority
an iriternatiorial trusteeship systcm. The same article states
that the system is for the admiiiistration and supervision of
such territories "as Inny bc placed thereunder by subsequent
individual agreements". Clearly, there could he iio trusteeship
syste~n iiithe absence of territories to which it would apply.
ilrhile still a mandatory Power, thc Union of South Africa had,
at:San Francisco, on May 7, Igqj, circulated a document mhich
\vas admitted as a conference clocument, rnaking known its vie\\:
"that thc mandate shoiild bc termi~iated and that the territory
should bc incorporated as part of the Union of South Africa".
That view was repeated in essence at the final meeting of the
League of Nations. At that meeting the delegatc of thc Union
of South Africa made a forrnal statement to thc cffect thnt the
Union of South Africa intenclcd at the forihcoming session of
S7l!3 STATEIIBNT UXION OF SOUTH AFRICA
the United Nations to formulate its case for according to South-
West Africa a status under which it would be iriternationally
recognized as an intcgral part of the Union. The Union Govern-
ment, on both occasions, clearly indicated their policy of incor-
poratioii of the territory, if its peoples so desired. Both the United
Nations and the League of Nations were aware of this, of the
fact that the mandates systcrn would terminate upon the disso-
lution of the League and that the Union of South Africa did not
iiitend toAsubmit a trusteeship agreement. Indeed, paragraph 4
of the League's resolution noting "the expressecl intentions of
the Mernbcrs of the Leaguc now administering territories under
mandate to continue to administer them for the well-being and
development of the peoples concerned in accordance lvjth the
obligations contained in the respective mandates, until other
arrangements have been agreed between the Unitcd Nations
and the respective mandatory Powers", left the cloor open for
the course proposed by the Union Governmcnt. The use of the
words "other arrangements" was significant. Thesc words do not
restrict the manner of dealing with such territorics to the sub-
mission of trusteeship agreements, but are wide cnough, and
wcre, it is submitted, intended, to include the proposais which
the Union Government had in mind. Had the League intended
otherwise, the words used would no doubt have been "until
trusteeship agreements have been entercd into", or words to
that effect. The subsecluent consiiltation of the ~icoplesof South-
West Africa confirmed the Government of the Union of South
Africa in their policy of incorporation, which was, however, not
proceeded with in defererice to the political groupings in the
United Nations at the timc.
23. But although it was known at San Francisco that the
Union of South Africa did not intend to submit a trusteeçhip
agreement, it was equally well known that ~nost, if not all, of
the other manrlatory Po~vcrs would submit agreements placing
iinder trusteeship the territories administered 113'them under
mandate. In respect of such territories as \trouid eventuaIIy be
placed thereunder, the United Nations uiidertook, thercfore, to
establish the trustccship ,systcm. It undertook something wliich
it knew beforehand it worild be able to put into effect. The word
"may" in Article 75, uscd in conjunction with the word "agree-
ments"-a word ncccssarily implying a voluntary connotation-
is, however, incontestahly permissive and not obligatory, and
no more can be inferred from Article 75 than that there \vas an
obligation upon the United Nations to establish a trusteeship
system in respect of territories voluntarily placed thereunder.
24. In Article 77,n similar permissive phraseology is employed,
namely, "such territorics in the follolving categories as may be
ylaced" under the trusteeship system "by incans of trustceship STATE>IENT USIOM OP SOUTH APRICA 79
agreements". These words, appearing in the opening part of
Article 77, clearly govcrn equaIly the thrce categories of territories
which follow. Two of them, (b) and (c), are admittedly voluntary
categories. The thircl one, namely, mandated territories, aypears
in precisely the samc context as the other two, and there is
nothing to indicate that it alone, ivhile governed similarly by
the permissive opening words, should be regarded as an obligatory,
and not as a voliintary category.
25. The use of the tvord "voluntary" in category (c) only, is in
itself no reason for according to the two other categories aii obli-
gatory character. Ifthc words "may" and "agreements", especially
cvhe~iused in conjunctian with each other, necessarily connote, as
they do, something permissive and vo~uiitary, it would need more
than an inference from the use of the word "voli~ntary" in only one
category to change that connotation to something imperative and
obligatory. If anytliing, that word \vas used ex nbz~.tzdnnfciazltela
and not in order to negative the voluntary nature of categories (a)
qnd (b),it being apparent that the territories referred to in category
(c) are such as stand in close constitutional relationship with the
sdministering authorities, to whom it rnight be desirable to indicate
as clcarly as possible that there is no suggestion of compulsiori iri
Article 77.
26. But whatever doubt may exist as to the voluntary nature of
Article 77, must certainly be dispelled by the unequivocal wording
of paragraph z of that article, which reads : "It will be a matter for
siibsccluent agreement as to which territories in the foregoing catc-
gories \vil1be brought under the trusteeship system and upori wliat
tcrms." No implication which may possihly arise from the tvording
of paragraph I could override so specibc n provision. Paragraph 2
leaves rio doubt that itapplies to al1 thrcc cütegories of territories.
It lcaves no doubt that, if agreement tvith the United Nations is ilot
reached in respect of a particular territory within a particular cate-
goy, that territory will faIloutside the triiçteeshiy system.
27. Bearing in mind the fundamental provision contained in
Article z, paragraph I, of the Charter, that "the Organization is
based on the principle of the sovereign ecluality of al1its IkIembers",
itis impossible to rend into the second paragraph of Article 77 ariy
suggestion that the agreement refsrrcd to thereiri can be othc-ithan
a voluntary one, submitted and entercd jnto \vithout cornpiilsion.
28. It could hardly be maintairied that ariy mandatory Po\\,er
intended, by the terms of this article, to assume any legal obligat'ion
to briiig the territory of which it is the mandatory under a régime
which differs in important respects from the mandates systcrn, by
an agreement of which the terms could not be knowli at the time
:ind ivhich might well contain provisions very different froin the
tcrtns of the mandate previously held by it. The San Francisco Ccrri-SO STATEBIEST USIOS OF SOUTH AFRICA
ference was not unmindful of this aspect of the matter. At that Con-
ference, the representative of Australia (Dr. Evatt) stated :"Tlic
assumption is that there is an identity between the terms of the
inandate, and the terms of the trustceship system, but there is not.
ln many aspects they differ ...There arc cliffercncesof suhstantial
import between the trustecship systcm which is nou7being ercctcd
as a framcwork, and the mandate systcm ....and we cannot alter
the maiidatory spstem. The only body that coulcl possibly ha1.e
altered it was the League ...It isriot a cluestion of merely continuing
the mandates. The mandate system \vas a trusteeship systern, but
it differsiiiimportant respects frorn this system, and therefore ....
you cannot by an act of an organization such as thisalter the esist-
irig terms of those maiidates, without the authority of the persoii
carrying out the trust."
29. III the light of the abovc, liaragraph (2) of Article So, ivliich
provides agaiiist delagi and liostponcmcnt of the ncgotiatioii and
coiiclusion of trusteeshiy agrccrncnts, caii ap1i1-jonly wherc the
Statc concerned has already decidccl to submit an agreement. 'I'o
hold that it applicd undcr othcr circumstanceç as well, woulci not
only be a contradiction of the voluiitary nature of Articles 75
arid 77, but \vould also lead to obviously unintended results.
30. Paragraph 2 of Article So apylies with reference to al1
territories spccified in Articl77, including, therefore, the territories
referred to in category (c), that iç, territories voluntarily placed
under tlie systcin by States respoiisible for their administration.
This circumstance alone makcs it impossible to contend tliat
paragraph 2 of ArticleSo carries the implication of a legal obligation.
Such an iinplicatioii ~~ouldmake it entirely inconsistent with the
cxprcssly voluntary category (c) and would meati that every
State responsible for the admiiiistratiori of any territory iti aiiy
category referred to in Article 77 (includiiig interalia rioii-sclf-
governitlg territories), is bound to siibmit a trusteeship agreement.
Such a concluçioi~cannot be acccptcd.
31. The view that there is no lcgnl obligation ro place former
rnaiidated territories under trustccship is finally confirmed by thc
proceedings at San Francisco. 'Flic delegate for Egypt at Saii
Francisco yroposed that the word "all" be iilserted after "(a)''
in Article 77 (at that time paragraph B 3 of the draft chaptcr
on trusteeship). Rad the proliosal bcen adopted, category (a)
of Articlc 77 would rlow have rcad : "al1 territories now held under
~nandate". "Objection was takcii to the yroposed ameildrneiit
on the groiind thatit would have the effect of creating a compulsory
systein, and thus of legislating beyond the compctcnce of thc
prescrit Conference,. ..Ko Yowcr 11omholding a mandate sliould
be espected to contiiiuc to accept responsibility under a new
systein, if ithad rio çhare in deciding iipon the revised ter~ns of STATE>IE?;T US103 OF SOUTH :lI:RICA 8I
its trust" (Uded Nations Conjerenceort I.nteriintioi~nlOrgnniz-
ation, Volume X, page 469). The Egyptian proposal \\;asconse-
quently defeated.
32. For the ahovc reasons, the Govcrnment of the Union of
South Africa müintain that they are under 110lepl obligation
to place the territory of South-West Africs under trusteeship.
33. Thc third ancl last particular cluestion i:
"HCISthe Union of Soz~tk Africa the cotnpetence to modi/y
the iitternabionnsfatzisof the Terribry of Sofitlz-Talisifricaor,
i.ithe evefttof a negafive re$ly, wllere does comfieteizcerest lo
determi?ieand rnodijy theinternatioizal statztof the Serrifory?"
In expressing their vie.rvs on this question, the Governrneiit
of the Union nf South Africa wish to state at the outset that they
have not at any time, acting alone, modified the international
status of South-West Africa. It is ccrtain, howcver, that thestatus
of that territory has nlready been modified as a resiilt of the disso-
lution of the Leagiie of Nations.
34. The word "status" in the Zriglish language, as defined
by the Osford Dictionary, means, in its legal sençe, a person's
relation to others as fixed by law. Whereas .in the past, therefore,
the intemational status of South-\Vest Africa coiild not be dcter-
rni~icd withoiit considering ils, as me11 as the Union of South
Africa's, relation to the League of Nations, the yresent statas
of the territory has chsnged to the extent that it bears no relation-
ship to that organization at all.
33. Becausc, as ha5 heen pointed out, the Ui~ited Nations
i-ieither succcccled to, nor assumecl, the functions of the League
in relation to the mandates system, the Unitcd Nations itself
cannot claim to replace the League in the latter's past relationçhip
towards the Territory and the Union of South Africa. 'Che powr
which the League, acting together \cith a manclatory power, had
therefore,
to modifp the status of a mandated territory, has,
not passed to the United Nations.
36. The Principal Allied and issociated Powerç which, at no
stage silice the allocation of the mandates, took any active part
in the amendmcnt of mandate texts, or inthc altcration of frontiers,
and who must, in ariy event, be regarcled as fzulcti o@icio,have no
rights in respect of former mandated territories and have no power,
thus, to rnoclify the statils of such territories.
37. It is clear, iurthermore, that thosc signatories of the Treaty
of VersailIes which ratified it, have no right to modify the status,
or to sanction any fresh disposition, of the Territory of South-
\T'est Africa without thc consent of thc Union of South AfricaSZ STATESIEST UNION OF SOUTH AFRICA
nrhich also ratificd the treatp. Finallg, theisno obligation oii the
Union of South Africa to place the territory under trusteeship.
38. Nevertheless, the international status of South-\Vest Africa
has uiidergone a change, for it no longer has the status of a
mandated territory. As has been pointed out, that change \vas
not brought about by any unilateral act of the Government of
the Union ofSoiith Africa, but in consequence of the dissolution
of the Leaguc. Ever since the allocation of the mandates, the
mandates system was governed by -4rticle 22 of the Covenant
and by the terms of the individual mandates. The latter having
ceased to exist, it is necessary to determine the effccts of the
dissolution of the League on Artide 22, for in such determinatioii
\vil1 lie the answer to the question whether the Union of South
Africa is compctent or iiot to modify the internatioilal status
of South-West Africa.
39. The Covcriant of the League of Nations is an integral part
of the Treaty of Versailles, comprising Articles I to 26 thereof,
and incliiding, thcreforc, Article 22. Although an integral part
of the treaty, it differed from the rest of it in two important
respects. I?irstly, there were more signatories, either by virtuc
of original signature, later accession or admission, to the Covenant
than to the cntire treaty, and secondly, there was a procedure
of amendment not applicable to the rest of the treatp. The power
to amend, coiitained in Article 26, could be exercisedhy unanirnous
vote in the Council and by a majority of the fiIcmbers of the
League whose representatives composed the Assembly. As al1
the States which had ratified the treaty were not meinbers of
the Coiincil, itwas possible to amend the Coveiiant without the
consent of al thosc States. For the rest of the treaty, howcver,
includiiig Articles 118 aiid 119, no amendment could, or can,
be effected without thc consent of al1the signatories who ratified it.
The Covenant was, therefore, a document of a type different from
the rest ofthe treaty, although forming part of it. As the statutc of
the great majority of States, designed to promote international
CO-operation arid to achievc international peace and security, its
existence as a legal document was inseparable from that of tiic
League of Nations which it established.
40. When, therefore, the League of Nations at its final scssiori
dissolved itself, its dissolution had the effect of removing from thc
Treaty of Vcrsaillcs that part which contained the Coveiiant. If
that were not so, the absurd position \vould obtain that those of the
signatories to the whole treatp, who have acceptcd the Charter of
the United Nations, nevcrtheless still accept, as legally valid, the
terms of the Covenant.
41. Admittedly, the power to amend does not, in general, iieces-
sarily include the power to repeal. But in dissolving the League, the STATEMIZST UNIO': OF SOUTH AFRICA 83
Assemblg purportcd to act iiiterms of Article 3, paragraph 3, of the
Covenant, and not in terrns of .Article 26. It came togcther as an
assembly of sorereignly cqual States and, dealing with a matter
"within the sphere of action of the League or affecting the peace of
the tvorld", unanimously clecidcd,iriits Kesolution of 18 April,1946,
that "the League of Nations shall cesse ta exist except for the sole
purpose of the liquidation of its affairs".
42. The act of dissolutiori has never been qiicstioned, and
although a number of States clid not participate in that act, their
consent thereto cannot otherwise than be necessa~ilyimplied. It is
juridically inconceivable, thcrefore, that any State coulcl, at this
stage, claim either thc application or the fulfilmeiit of any specific
article of the Coveiiant, including Article 22.
43.There isconscqucntly no interiiational legai document pre-
sently in force, limiting the administrative pomers of the Union of
South Africa with respect to the Territory of South-Ii'cst Africa,
or enjoining itto contiriuc itstreatment of thetcrritory as a separate
iriternational cntity. 'l'lieGovcrnment of the Union of South Africa
mairitain, thecefore, that thcy aloric have the competence to modify
the international statiis of the territory.
44. If itshould be licld, howcver, that Article 22 of the Covenant
stiIl has legal validity, it is submitted that it obviously carinot be
legally valid to the estent of rcviving the League or the mandate
or the Maiidatcs Commission. That being so, the re~nainder of
Article 22, in so far as it could apply to South-West Africa uncler the
circumstances, would do ~iomore than reiteratc what is, in fact, the
policy of the Governinent of thé Uiiion of Soutli Africa towards the
Territory of South-\$'est Africa. Nor tvould it do les than aIlow the
Union of South Africa to administer the territory as an integral
portion of its own tcrritory which, infact, it is not doing, escept to
ü limited extent. In so far as it m. be held to be valid, therefore,
Article 22 could not operatc as a limitation upon the relationship
between the Union of South Africa and the Territory of South-West
Africa. In particular, it inlposes no obligation on the Union of
South Africa to rcfrai~i froin modifying the international status of
that territory.
4j. As the Government of the Union of Soiith Africa hold the
view that they alone arc competent to rnodify the international
status of South-West Africa, and as the cornpetence to rnodify
irnplies the competence to determjiie the status of the territory, the
latter part of thc question under consideration in their su1)mission
falls away.
46. The Governnient of the Union of South Africa would close
this statement by espressing their view that the Territory ofSouth-
IVest Africa falls, at present, under no known category in inter- STATEMENT UNIOS OF SOUTH AFRIC.4
84
ilational la\\..It was taken by conquest by the Union of South :\frics
duririg tlie 1g14-lg1S \Var alid suhsecluently ~ilacedunder mandatc
\Ifhichhaç now lapsed. It isnot a colony, or an indepcndeiit State or
part of the territory of the Urrionof South Africa. Its statiis in inter-
national law is s?&;eneris,anclit is being administered in accordailce
with 3 system which is suigelteris, but which is neverthclcss iiot
inconsistent ~4th the objectives of the Charter oftheUnited Xatioiiç,
It is the considcrerl view of the Governmeiit of the U~iion of South
Africa that therc is no iriternatioilal legal limitation upon their com-
petence iil respect of the territor); and that thcir iiiternxtional
obligations, arisirig froni tlie status of the territorp, i~rto lic deter-
mined accordingly .3. WKI'ïTEN STATEMENT OF 'THE UNITED STATES OF
ARIERICA ON THE QUESTIONS SUBhlITTEU TO THE
INTERNATIONAL COURT OF JUSTICE BY THE UNITED
NATIOKS GENERAL ASSEhIB1,Y IN ITS
RESOLUTION 338 [IV), DATE» DECEMBER 6tk, 1949
The Gerieral Asse~nbly of the United Xations, in Resolution 338
(IV), dated December 6, 1949, decided to submit certain kgal
questions concerning the Territory of South-West Africa to the
International Court of Justice, \trith:L request for an advisory
opinion.. In that resolution the General Assembly proposeci
first a general question concerning the status in international law
of the Territory of South-West Africa and the international rights
and obligations of the Union of South Africa with respect to that
Tcrritory. The General Assembly n.e~it oii in tliesame resolu tiori
to detail. certain syecific aspects of the general question, on which
in particiilar the Assembly sought an advisorg opinion from the
Inter~iatioiial Court of Justice. Resolution 338 (IV) rcads as
f0ll0~~r:.ç
" 7:hcGetzeral Ass~mbby,
Xcctrllir~gits previoiiliesolutions 65 (1) ofrq Decembcr, 1946,
141 (II) of T November, 1947, aila227 (III) of 26 November, 1g48,
coiicerning the Territory of South-West Africa,
Consirlering that it is desirable tliatthe General Assernbly,
for its ftrrther consideration of the qiiestion, shoiitd obtain an
ativisory opinion oiiits legal aspects,
I. Decides to submit tlie followirig cluestions to tlie Inter-
national COI IF ^f Justice witlia reqiiest foran aclvisory opinion
wliiclishall be transniitted to the General Assembly before its
Fifth ICegular Session, if possible:
'IVhat is the international status of tlie Territory of South-
Ives: Africa t~iiclwhat are tlic iiitcriiational obligatioi~s of the
Union of Soirth Africa arising tlierefrom, in particular:
(ci)Does tlie Union of South Africa coritinue to have iiiter-
national obligations undcr the Maildate for South-West il fric:^
and, if so, what are tkose obligations ?
(h) Are the provisions of Chapter XII of the Charter applicable
and, if soin what manner, to theTerritory of South-\\lest Africa?
(c)Hm the Union of South Africa the competence to modify
the internationai status of the Territory of S~uth-\\~est Africa,
or, in the event of a negativc reply, wherc does competence rest
to determine and modify the international statils of the Territory 7'86 \!'RITTEK STbTEMEST OF THE U.S.A.
2. Reqrrcsls the Secretary-General to transmit the present
rcsolution to the Iiiternational Coiirt of Jiistice, iii accorda~ice
with Article 65 of the Statute of the Coirrt, accompanied by al1
documents likeiy to throw light upon the qiiestion.
The Secretary-General shall incliicle among tliese docuinents
the test of Article 22 of the Covenant of the Lcague of Xations ;
the test of the Mandate for Gerrnnn Soutli-\jrcst Africa, confirmed
by the Council of the League on 17 Ilecemher, 1920 ; relevant
dociiinentation concerning the objectives and tlic futictions of
the mandates system ;the test of the Iiesolution adopted by tlie
Lcaguc of Nations on the qiiestion of maiidates on 18April, 1946 ;
the text of Articles 77 and 80 of tlie Charter and data on the
discussion of these articles in the San I~rrinciscoConfcrence and
the Gcneral Assembly ;the report of the 1-oitrtli Cornmittee and
the officia1rccorcis, includirig tlie anneses, of ttie consideration
of the question of South-IVest Africa at tlic 170urtli Session of
the Geriernl Assembly."
?'lie Govcr~iment of the United States dcsircs to acldress.itçc1f in
this written statement to four issues which, in this Government's
opiiliori, arethe legal issues pri~icipally raised by the c~uestionswhich
tlic Gcneral Asscmbly has subrnitted to the Court. Tlie four
issues are : (1) \Vhether, and if so ho\v, the obligations of thc Man-
date for South-\T'est Africa continue to bind the Union of South
Africa ;(II) \irhether, and if so hou., the provisions of Chaptcr XII
of thc United Nations Charter are applicable to the Territory of
South-\t'est Africa ;(III) l17hether, and if so how, the provisions
of Chapter XI of the Charter are applicable to Soiith-\Vest i'ifrica ;
and (TV) How the Mandate for South-IfTest Africa, if it subsists,
may he modifiecl or terniinated. The present written statement
sets forth the views of the Gover~lrnent of thc Uriitecl States on
these issues.
'The obligations of the Mandate for South-Wcst Africa continue
to bind the Union of South Africa at the present time. This
proposition seems fairly well established with respect to the sub-
stantive obligations laid down in the mandate instrument, although
somc difliculties on the procedural side arc obvious in view of the
dissoIution of the League of Nations.
A. Source of the Union's aitthority in Sozttlt-Wesl Africn
The Union of South Africa has derivcd itsauthority iri the Terri-
tory of South-\ITest Africa from the treaties and other international
ag<cerneilts of the general settlernent follo\viiig the First \fTorld
\Var. \$'KITTE' STATE3IEST OF THE U.S..4.
8 7
r. The Treafy O/ VersniCles
The authority of Ehe.Union of South Africa in the Territory
of South-IVest hfrica stems from the Trcaty of Versailles. Art-
icles IIS and 119 of the Treaty of Versailles j~rovidc :
"Arliclc 118.-In territory outsicle lier Buropcati frontiers as
fixed by the prcscnt 'Treaty, Germany rcriounces al1 rights, titles
and privilèges whatever in or over territory whicli belongcd to
lier or to hcr nllics, and al1 rights, titlesand privileges whatever
their origin which she held as against tlie Allied and Associated
Powers.
Germany Iiercby undertakes to recognize and to conform to
tlie measures which may be taken no\v or in tlicfuture by the
Principal Ailied and Associated l'owers, in agreement wiiere
necessary with third Powers, in order to cary the nbove stipula-
tion into effect.
In pnrticular Germany declares her acceptance of the foilowing
articles relating to certain special subjects.
Article 119.-Gcrmany renounceç in favour of the Principal
Allied anrl Associated Powers l al1 lier rightsand titles over her
overseas possessions."
Article 22 of the Covenant of thc Leaguc of Nations, embo-
died in the Trcsty of Versailles, provides. in part:
"To those colonies and territories which as a consequwce of
the late war have ceascd to be under the sovereignty of the States
which formcrly governed them and which are inhabited by peoples
not yet able to stand by themçelves under the strenuous con-
ditions of the modern world, there should be applied the principle
that the ~vcll-bcing and development of siicli peoples forrn a
sacred trust of civilization and tbat çecuritics for the performance
of this trust sliould be enibodied in this Covcnant.
Ttie best iiictliod of giving practical effcct to this principle is
that the tutclage of suc11pcoples shoiild be entrustcd to advanced
nations who tiy reason of their reçources, tlieir esy>crience or
their geographical position can best unclertake tliis responsibility,
and who are willing to accept it, and that this tutelagc should
be esercised by them as maridatories on belialfof the Leaçiie.
The character of the mandate must cliffer according to the
stage of the developme~it of the people, tlie geagrapliical situation
of the territory. its economic conditions and othcr similar cir-
cümstances.
Therc are territories,such as South-West Africa and certain
of the South Pacific Islands, whicli, owing to tlie sparseness of
their poputation, or their small size, or tlieir renioteness +from
the centres of civiiization, or their geograpl~ical contiguity to
the territory of the mandatory, and otlier circurn~tances~ can
-
1 These Poii.ers were statcin the Preamble of the Trcaty to be theUnited
Statesof Americs, France. the British Empire, Italyand Japan.88 i~'RITT13S ST.4TEXlEST OF THE lj.S.:\.
be best admii-iistercduriderthe laivsof the mandatory as integral
portions of its territory, subject to the safeguards nl)ovementioned
in the interests of tlie iiidigcnous population.
In every case of iiinridnte,the mandatory slinll rciicler to the
Couricilan annual rcport irircference to tlie tcrritorcommitted
to itscharge.
lhe degree of authority, control, or administration to be
esercised hy tlieinaridatory shall,if not previously ngrced upon
by the Xlembers of the 1-eague, be esplicitly defineclin eacii case
by the Council.
A permanent coinmission sliall heconstituted to receivc and
esaniine the annual reports of the mandatories ancl to advise the
Couiicilon al1mntters relntiiig tthe observniice of thernandateç."
2. Work ofthe Pri?zcipal Allied and Associated Powers on nlloca-
tioizs and mandate i?zstn~me~zts
Ilrior to signature of tlicSreaty of Versailles, while South-West
Africa \vas occupied by armcd forces of the Unioii of South Africa,
thc Priiicipal Allied and Associated Powers includi~ig the United
States, acting through the Supreme War Council, on'biay 5, 1919,
decided upo~i the follo\ving allocation of mandate : "German
Sotrth-West Africa. Thc mandate shall be helcl by the Union
of South Africa." See V, ForeigpaRelations o/ the United States
(Paris Yeace Conference rgrg), 506-joS. In this manner the
Principal Allied and Associated Powers anticipated the authority
they n-ould have undcr Article r~g of the Tresty of Versailles
\vhcn it came into effect, and took the first step toward making
the Union of South Africa the mandatory Power for South-\Vcst
Airica. Before the Union couid be confirmed in its mandate,
it remained for the Trcaty to enter into force ai-id thc terms of
mandate to be fixed pursuarit to the eighth paragraph of Article 22
of the League Covenant.
On June 27, 1919, the Principal Allied and Associated Powers,
through a meeting of the Couiicil of Four at which Japan \vas also
represented, considered drafts of the mandate instruments prepared
by Lord Milner and circulated by Xr. Lloyd George. The Council
of Four agreed to set up s com~nission consistiiig of one rcpresen-
tative of each of the i:ve Powers "to consider the draftiilg of rnan-
dates" and for relatcd ~iurposes. See VI, Foreigtz Relations of
the United States (Paris Peacc Conference ~g~g), 723-729. On the
fnllowing day, June 2S, 1919, the Sreaty of Versailles \vas signed.
On Decernber 24, 1919 he Heads of Delegations of the Princi-
pal Allied and Associated Powers considered the drafts drawn up
hy the Commission on Mandates ivhich they hüd established six
months earlier. Approving the "A" and "B" drafts in principle,
they referred aU to a draftiiig cornmittee, noting, however, the
iieed to discuss the "C " drafts further with Japan, ivhich insiçted
on the insertion of an "open-door" clause. See LX, Foreign
Kellriions oj the United States (Paris Peace Conference rg~g), \\IRITTES STATEJIEST OF THE U.S.A. S9
637-64s. A littlc over two neeks later-January IO, 19zo-the
League of Nations came irlto being and Article 22 of the Covenant
hecame effective.
3. Action by the League Council on mandates
On August 5,1920, the Council of the League of Nations, meeting
at San Sebastian, heard and unanimously adoyted a report sub-
mitted by the representative of Relgium, MT.Hymans, entitled
"The appeal of the Couilcil to the Principal Aliied and Asçociated
Po\vers to define the mandates to be conferred under Article 22
of the Covenant". League of .Nations Council P.V. zo/zg/xq
(Sth sess., San Sebastiaii, Julv 31-August 5, 19201,39-43, 63,176-
191 ;League of Nations OficîaE Jol~rnal No. 6 (September, 1920),
313, 3x7, 334-3jr. Among the measures which the report found
necessary to "ensure the observance of Article 22 and to apply
the mandatory system" was the following :
"(c) The mandatory Powers choçen must he invested with.
the authority and the necessary powers for admiiiistering territories
by means of an instrument which will legally bind them." League
of Xations Council P.V. zo/~g/14 (Sth sess., San Sebastian, July 31-
AU~US~ j, I~SO), 179.
Cantinuing to review steps taken, the report Found as to the
decision of the Principal Allied and dssociated Powers of Rlay j.
rgrg (as supplemented by a decision of August 7, 1919):
"Tliiç agreement has not been espressecl in a form implying a
legaI obligation, aithough the territories in question are actuaily
being ad~ninistered by the mandatory Powers to whom it was
inteildecl to entrust tliem." Ibid.
The report thciî went on to explain tlie iieccssity for agreement
by both the Principal Allied and Associsted Powers aiid the Couiicil
in completiiig the legal investiture of the mandatory with the right
to adrninister the mandate *.
2 The report by JIr. Hyinads rcad, in part:
"1.-9llocaiion of ihemndaies and legal fill e( 6hc tnandafories
"There is one point on uphichthere seems triodivergenc of opinion, namely.
that the right to nllocate the niandates-thistoSay. to appoint the mandatory
I'orvers and to [letcrminc the tcrritorieswhich thcy shatl cxcrcise authority-
betongs to the Principat hllietf and Associated Poivers. A22iof the Covenant
makes no provision rcgarding the authoritwhich shall appoint tlie mandatori;s
but ArticleI19of the Trcaty of \'ersailles transfers thc sovarcignty ovcr the former
German overseas pcisscssions tu tlie Principal Allicd nntl Associated Powers, and
Article 118 exprcssly stipulatcthat mcasures slialbc taken by the Principal
Allied and rlssociatctl I'owein,agreement, where neccssary,withthird Powers.
in ordcr to carry iiito cffect the full consequofcthe provision by which Cer-
many rcnouriceç hcr rights outsidc Europe. Thesctwo articles of the Treatyf
Versailles can obi,ioiisly servc as guidesthe intcrpretatjonof the Covenant,
since they are strictly contemporaryhave been drair-n up by the same authors,go WRITTEX ST.4TEAIEST OF THE U.Ç.A.
After adoptitig Mr. Hyrnsns' report, the League Council passed
the followirig resolutions :
"1. The Council clecides to rcquest the Principal Powers to
be so good as to (a) name the Powers to wliom they have decided
and since the Covcnant forms part of the Trcaty of Versailles. The Allied Powers
have adopted the same interpretation of Article 22 of the Covenant by inserting
articles in the Trcaty of Peace of Saint-Germain dated September IO. 1919, with
Austria, and in the tlraft trcsty with Turkey, which stipulatc cxpressly that the
right to appoint mnndatory Polvers shall bclong to the Principal Allied Powers.
Thcre can be nu qiicstion, rnoreovcr, as to the intentions of the authors of the
Colrenan t iirith regarc! to this question.
"It is not enougli, however, that the rnandatory Poivers should bc appointed;
it is important that they should also possess a legal tifle-a merc rnatter of forrn,
perhaps, but one ivhiçh should be settlcd, and the consideration of which will help
towards a clear understanding of the conception of mandates.
"It must nat be forgotten that. although the mandatory Polvcr is appointed
by the Principal Powers, it wilt govern as a mandatory and in thc name of the
Lcague of Nations.
"It logically follows that the legal titlc hclrl by the inandatory I'iiwcr rnust be a
double one : one confcrred by the Principal Powers, and the ottier conferred by the
Lcague of Nations. The procedure should, in fact, be the fotlowing :-
"1. The Principal Allied and Associatcd Powcrs confer a mandate on oneof their
number or on a thirti Power.
"2. The Principal I'owers officially notify the Council of the League of xations
that a certain Powcr has been appointed mnndatory for such a certain defined
terri tory.
"3. The Council of the League of Kations tnkcs officia1cognizancc of the appoint-
ment of thc mandatory I'ower. and informs the latter that it [thc Council] considers
it as invested with the mandate, and at the sniiic time notifies iuf tlic terms of the
mandate. after ascertaining ivhether thcy arc in accordance witli the provisions
of the Covenant." Id., at 181.
The report contained the fotlotving comment concerning the relntionship of
responsibility as betivccn the League and the mandatory :
"1II.- The entent O/ the League's right O/ conirol
"The practical and ~rositive question sppcars to me to be the folloivitig : What
will bc the respc>nsiùility of the mantiatory Poivcr bcfore the Lcagiic of Sations,
or in other words, in what direction will thc Lesgue's right of control bc cxercised :
1s the Council to content itself with ascertaining that the mandatory Powcr has
remained within the limits of the poivcrs which were conferrecl i~pon it. or is it to
ascertain also whethcr tht: rnandatory Power has made a good use of these porvers,
and whether its administration has conformcd to the intercsts of the nativc popu-
lation 7
"lt appears to rnc that the \vider intcrprctation should be adoptcd. Paragraphs
r and 2 of Article 22 have indicated the spirit which should inspire those who are
cntrusted with administering peoples not yct capable of governing themselves.
and have determincd thnt this tutelage shoultl Lieexercised by thc St:itcs in ques-
tion as mandatories and in the namc of thc Lcague. The annual report stipulated
for in Article 7 shoulcl certainly include a statement as to the whole moral and
material situation of thc pcoplcs under the mandate. Tt is clear. thcrcforc. that
the Council also shoultl examine the question of the rvhole administration. In this
mattcr the Council ivill obviously have to display cxtreme prudence, so that the
exercise of its rights of control should not provoke any justifiabfc complaints, and
thus increase the difficulties of the task undertaken by the mandatory Poivcr."
Id.. at 187. IVKITTES STATEMEST OF THE U.S.A. 9I
to aliocate the inandates proviclcd for in Article 22 ;(b) to inform
it as to tlic frontiers of the territories to corne under theçe
rnaiiclates;(G) to cornmunicate ta it tlze terms and the coiiditions
of the maiidatcs that they propose sliould be adopted by the
Council frotri [sic] following the prescriptions of Article 22.
II. 'flic Couricil will take cognizance of the mandatory Powcr
appointed and will examine the tiraft rnandates cornrnunicated
to it, in ordcr to ascertain that they conform to the prescriptions
of Article 22 of the Covena~it.
III. The Council will notify to each Sower appointed that it
is investcd with the mandate, and will, at the same tirne, com-
municate to it the termç and conditions.
IIr. The Council instruct~ tlie Sccretary-Generat, following the
recommendations set forth in this report, to prepare a clraft
scherne for tlie organization of the Commission of Control provicled
for by Article 22, para. Y." Id., at 191.
At ü meeting of the Council of the Lcngiie at Briissels, October 28,
1920, a further report by Xlr. Hyma~ls, eiititled "blandates", \\?as
read and unanirnouçly adopted. 1,eague of Nations Council
P.V. 20j29/16 (10th sess., 1920)~ 21-27, jg, 189-197 ; League of
Nations Ogicial Jozinznt Xo. S (~gzo), zS, 30-33 &Ir. Hymans'
report noted that agreement had still not been reached on the
ierms of the mandates and stated unequi~ocall~ the power aricl
duty of the Council to interirene :
"l3eyotid doubt, it isiri every wny clesirable that the Principal
Powers should he able to arrive nt :L coniplete understanding
ânclto siibrnit agreements to tlicLeagile. Failing thisvery desirable
agreement, fiowever, tlie Coveriant provides for the intervention
of coni~olnorlof administrationcto bemiescrcised bygtliernandatories.
The Coiincil, whosc duty is to ensure the carrying out of the
Coveiiarit, will, without doubt, liavc to inform the ,~ssembly as
to the prcsent position \vit11regnrd to this matter. \iiesincerely
liope, thercfore, tliat before the end ofthe:Assembly the Principal
the termswilof the smandates inwliichinthey urish to submitmentto the
Council. Tlie latter would certairily be disposed to rescrve its
ntpoGenevn, so as to allow the 1)owers ndequale tinie for tlieeting
purpose."
Ry lctter of October 27, 1920, this view was commui~icatct~
by the League Council to the Pri~iciyal Allied Powers. The entire
matter \vas also fully reported by the Council to the League Assein-
bly. Sce II, I-engzteof Nations Ofzcial Records, hssembly (1st
sess., 1920, Sixth Cornmittee), 371d sqq.,Annes 17 b. 011Decern-
ber I, 1920, agreement still not having been rcached, the letter of
October 27 ivas follo~vedup by the follon,ing telegram : g2 iYRITTISS ST.4TE3IEST OF THE U.S.A.
"In the name of the Council of League of Katioiis 1 have the
lionour to refer to letters \ilhich Council addresscd to you on the
subject of mandates on August 5th and Octoher 27tIi, 1920 Sto$
In order to givc to Principal Allied Poivers tlie riecessnry time
to complete their ncgotiations regarding ternis and conditions of
the mandates whicti ttiey rlecide to propose shoulcl I>c adopted
by the Council thc Council had arrariged not to present this report
to the Assenibly oii this subject until the last days of the meeting
Stop This Council hns received no draft mandate up to tlie present
and in viem of the strong public feeling on the subject it ventures
to urge the estreme importance of a quick settlement Stop Ansious
as it is to see tlie mandates drafted by previous agreement betweeri
the Principal Allied Powvers the Council cannot indefinitely
~~ostponethe fulfilrnent of the duties whicli wilt fat1 to itif such
agreement is not reached Stop It is to be ariticipated that the
.4sscrnbly wi!i remind the Council of the clause iii the Coveriant
which declares that the degree of authority control or adrninis-
tratiori to be escrcised by the tnandatory stinll il not previously
ngreed upon be deterrniiied by the Coilncil SloP The Council
thereforc most earncstly begs lhat any draft iti:~ndntes upon
wliich agreement may have been reached by tlie Yriricipal Allied
l'owers should be communicated to it at a sufficiently early date
to enable the Council to give nll necessary iriformation ro the
:lssemhly before .the end of the preserit iileeting Stop HYXASS
President of the Assernbly." League of Sations Council P.V.
zolzgl17 (11th sess., rgzo), gz.
The British Governinent on Decembcr 14, 1920, submittcd a
.draft mandate instriimerit to the League Council. This ulas
rcferred to the Legal and Mandates Sectioti uf the Secretariat.
0ii Decernbcr 17, 1920, thc Council of the Lcague at the 14th
meeting of the 11th Session dccided, subject to certain amcnd-
rnents, to accept tlie British draft mandate for the Territory of
South-\trest Africa. League of Kations Council P.V. zo/ag/r/
(11th sesa., 1920),36, 37. The instrument so approvcd became the
mandate instrument for South-West Africs 3.
4. Speciab fositiorr o/ tzvo of the Principal Allied uad Associated
Powers in regard to fhe tnandates
It maq: be relevaiit to note at this junctiirc that the position
of lapa11 and the Unitcd States differed somewhat from that of
the other Principal Allicd and Associated Powers with respec: to
the mandates. In the case of f apari that cliffcrericc was slight.
lt is rcflected in a reservritioii eiitered by Japan on Decertiber 17,
1920 (~vhen the Leaguc Couiicil approved the mandate for South-
West Africa). As will be seen from the test of the reservation 4,
The textof the instrumentis givebelow at pages IOG,123.
Thc reservation madc by Japan reads:
"Declnralionby the Japa~zeseGouevnrnentrelattng to '11Ia1tdntes
"From the fundamental spirit of the Leaguof Sations and as the qucstion of
intcrpretatioof the Lovcnaiit,I-iis Imperia1 JapanescJIajcsty'sGoirernrncut WRITTEN STATERIEXT OF THE U.S.A. 93
it in no way impaired Japan's recognition of, and agreement to,
the mandates as finally givcn hy the Council of the League of
Nations.
The United States did not ratify the Treaty of Versailles.
How-ever, it acquiesced in the establishment of the mandate spstem,
including the approval of mandate instruments. Article 1 of the
separate treaty which the United States subsequcntly concludecl
with Germany reads :
"Gerrnany undertakes to accord to the United States, and tlic
United States- shall have and enjoy, al1 the rights, yrivileges,
indeninities, reparations or aclvantages specified in the aforeçaid
Joint Kesolution of the Congress of the United States of July 2,
1921, including al1 the rights and advantages stipulaied for tlie
benefit of the United States in the Treaty of Versailles which
the United States shall fully enjoy notwithstanding the fact that
such treaty ha not been ratified by the United States." Article I
of the Treaty of Berlin, signcd August 25, 1921, ratifications
exchangcd November Ir, 1921.
So fat- as the United States is concerned, thcrefore, its failurc
to ratify the Treaty of Versailles should not be considered to
invalidate or weaken the dispositions made i11the creatioii and
operation of the mandate system.
5. Characfev O/ the union.'^ aztthority inSoatk-West Africn
It has nosv been seen that the Union of South Africa acquired
its authority with respect to South-West Africa from the following
series of actç which, takcn together, brought the mandate into
being.: the Treaty of Versailles, thc allocation of mandate by the
Principal Allied and Associated Powcrs, and tlie approval of terms
of mandate by the Council of the League of Nations. Authoritp
was bestowed on the .Union to exercise pawers of tlitelage over
South-West Africa on behalf of the League. No authority othcr
than that of the Mandate u7asconferred on the Union ofSouth Africa
with respect to the Territory of South-West Africa. The character
of the Union's authority as mandatory Power is clearly indicated
in the report (quoted in footnote 2 above) which the League
Council approved when it met at San Sebastian.
have a tirm conviction in the justice of the claim they have hitherto made for the
inclusionof aclause conccrning the assurance of equal opportiifor trade and
commerce in 'C' mandates.But from thc spirit of conciliatiancl CO-operation
and their reluctance to see the qiiestion udscttlcd any longer, they have decided to
should not be considered as an acquiesccncc on the part of Wis Imperia1 Japanese
hlajesty's Governmentin the subrnission of Japanese subjectsadiscriminatory
and disadvantageous treatmentinthe mandated territori;snor have theythereby
discarded theirclaim that therights and interests enjoyed by Japanese subjects
in these territories in the past should be fully respId.,at roq.
994 \VRITTEN STATEJIEXT OF THE U.S.A.
B. The Mandate remnins in jorce as an interizalionalobligation
The Union of South Africa has continued since the Ve.rsailles
settlernent and approval of the Mandate by the League of Bations
in 1920 to administer the mandated Territory of South-West
Africa. Xothing has happenecl in the intervening ÿears to dis-
charge the Union Government from the legal obligations it under-
took pursuant to the Treaty of Versailles and the terms of its
Mandate. These obligations have not been terminated pursuaiit
to provisions of the Mandate, by the outbreak of the Second World
\Var, or by the dissolution of the League of Nations and the
establishment of the United Kations. The memberç of the world
community, severally and through the Leaguc of Kations and
the United Nations, have clearly evidenced their belief in the
continuing legal force of the mandatory's ohligations, and their
intention that these obligations should not lapse. The Union
of South Africa evidenced coticurrence in such belief and intention
by action and hy word until 1948. And South Africa, since 1948,
has not by action or by word rcnounced the rights conferred on
it as mandatory, In rgq8 some espressions by Union Government
representatives indicated belief that the Mandate had expired,
but in 1949 still other Union statements were made which cast
doubt on the previous expressions.
I. The Ma?,date has not expired accordingto itsterms
(a) Thc Mandate has riot been terminated under the provisions
of Article 7 of the Mandate
Article 7 of the Mandate provides :"The co~lsentof the Council
of the Leaguc of Nations is required for sny modification of the
terms of thc present Mandate." The League of Nations Council
never gave its consent to a modification of the Mandate resulting
in its termination, nor has the United Nations done ço5.
(b) Independence has not been grantea by the mandatory
The question of possible ways of modifying the international
status of South-West Africa consistently ~vith the terms of the
Mandate is discusscd in Part IVbclow (pages 127etsqq.). Assuming,
however, that one method of modification or termination is by
giving independence to the territory, it is clear that this has riot
been donc. Thc letter which the deputy perinanent represent-
ative of the Union of South Africa to the United Nations, on
July II, 1949,addresscd to the Secretary-General, and the accorn-
panyirig text of the S~uth-\\~est Africa Affairs Amendment Act
of 1949 makeabundantly clear the continued status of the Territory
as a dependent area of the Union of South Africa. U.X. Doc. Algzg
(3~1~ 131 1949).
1,8C,2eandalv,C, below (page106-111,135-137).n to the illaiidate is discussed in WRITTES STATEBIIZS'T OF THE U.S.A. 95
(c) South-West Africa haç not been incorporated in any
other country
It has been suggested that South Africa can incorporate South-
West Africa because this was the future planned for the Territory
at the Paris Peace Conference. Sce U.K Oftcial Records, General
Assembly (3rd sess., 1st part, Fourth Committee, rgqg), 294
(statement by representative of Union of South Africa). But
cf. id., ai 313-314 (statement by representative of Uruguay).
Termination of the Mandate by incorporation was foresecn by
Yresident \Vilson, but only on the basis that it should not be
anncxation and that it be basecl on the wishes of the people of
South-IVest Africa after their cievelopment had reached the stage
which would "qualify them to express a wish as to their ultimate
relations....The fundamental idea would be that the world was
acting as truçtee through a mandatory, and would be in charge of
the whole administration until the day when the true wishes of
the inhabitants would be ascertained." See III, Foreign Rela-
tions of the United Stntes (Paris Peace Conference, 191g), 740. It
seems clear that the guaranty of impartiality, in detcrinining when
unificationmight be proper, was to bc found and waç i~itentionally
made to reside in the considercd opinion of the world community.
As will be brought out below (pages 102,129-I~o), the Union of
South Africa requested approvnl of incorporation by the General
Assembly of the United Nations in 1946, and the Geiieral Assembly
in Resolution 65 (1) of Dccember 14, 1946, declined to accede to
sirch incorporation. Unilateral action by the Union of South
Africa to effect incorporation ~~ouldbe contrary to the Mandate,
and appears not in fact to have been proclaimcd by the Union
Government . See U,N Opcial fiecords, General Assembly (4th
sess., Fourth Cornmittee, 1949), 2x3-2x5, z39-240 (statements by
representative of Union of South Africa).
2. The Mandate was not terminated by the Second World War
(a) General principles of intcrnational law
It secms unnecessary to dwell at length on the (luestion of the
effect of the SecondWorlclWar upon this mandate. Itisgenerally
accepted that treaties to whicli belligerents alone are parties are
not necessarily abrogated hy war. Itis even clearer that a multi-
partite agreement of such general interest to the community of
nations as a League of Nations Mandate could not be abrogated,
ipso facto, by the outbreak of \var. The hTorthAtlantic Fislzeries
Case, Hague Court Rcports (ed. Scott, 1916)~141, 159. Accord :
Clark v. Allen, 331 U.S., 503 (1947 ;)Techt v. Hughes, 229 N.Y.,
222 (1920); see also, Resolzrtionof Institzttof International Law
o?tEflect O/ W~Y on Treaties, Christiania, 1912, Oxford University
Press (ed. Scott, 1916), 173-174 ; V, Wackworth, Digest of Inter-
natiorta2 Law, sec. 513 ; II, Oppenheim, Inter?zutional" Law (6th
cd., ~gqq), sec. 99. g6 WRITTEN STATEMEKT OF THE U.S.rl.
(b) Subsequent action by the parties
In San Francisco, lvhile drafting the United Nations Charter,
in Geneva, when dissolving the League, and in the United Nations
itself, both the mandatory Powerç and the other Members of the
League and the United Nations have premised their actions on
the continuing effectiveness of the mandates. The San Francisco
Conference drafted and approved Articles 77,79 and 80 of the Char-
ter, which set out rules applicable to "territories now held under
mandateJJ, or "territories held under mandate by a hlernber of the
United Nations". Article 80, among other things, was designed
expressly to preserve the rights of mandatories and of.the peoples
of mandated territories. The League's final resolution regarding
mandates expressly sanctioned the continuing validity of the man-
datesa.
3. DissoEut ifothe Leagz~e and establishment of the Unifed
Natiot tis~zotendthe Mandade
(a) Effect ofa mandatory's withdrawal from the League
That the obligation of a mandatory under Article 22 and the
mandate instrument are not dependent on continuance of the
membership of such mandatory in the League of Nations has been
demonstrated in the case of Japan. On March 27, 1935,.Article22
as part of the Covenant defining obligations of membership ceased
to bind Japan ; but Article22, as incorporated by reference in the
mandate for the former German possessions in the North Pacific
Ocean, continued to have and receive binding legal effect. The
League asserted and Japan recognized the continuing jurisdiction
of the Permanent Mandates Commission, as an agent of the Lcague
Council, to receive and consider Japan's annual reports under
paragraph 7 of Article 22 of the Covenant and Article 6 of the
mandate instrument. These positions were taken notwithstand-
ing any existing theoretical uncertainties as to the location of
"sovereignty", and noturithstanding the very practical difference
that upon Jayan's withdrawal the participation of Japan as a
Member of the Council in reviewing reports and in designating the
members of the Commission automatically terminated. SeeLeague
of Nations OficiaE Journal, Permanent Mandates Commission
(28th sess.,1935)1 ~25,183-184.
The case of Japan difiers from the case of the Union of South
Africa. In the latter the Union of South Africa has not with-
drawn, but the Council of the League has been dissolved as the
instrument for supervising the carrying out of the obligatio~is .
of the mandate instr,ument and Article 22 of the Covenant ;
this dissolution was effected by the Union and the other remaining
A more extended djscussion of this question is containcd3,belowB,
(pages96-99). WRI'ITES STATEJIEST OF THE U.S.A. 97
Members of the League. The Union remains a Riember of the
United Natiorls, ivhicli it, together with the other remaining
hlembers of the League and other States, has generally entrusted
with functions formerly exercised by the League. It cannot be
contendecl that the Union Governn~cnt, in concert with the other
governments referred to, has released the manclaiory from the
obligations of the Mandate.
(b) The making of the United Nations Charter
The Charter of the United Nations was drafted at San Francisco,
April zj-June 25, Xgqj, and came ii~to force October 24, 1945.
The League of Nations was dissolved by a Keçolution of the League
Assembly of April 18, 1946, folloiving meetings at Geneva com-
menced on April S, 1946. The Union of South Africa, of course.
ylayed an active part itiboth tasks.
The interition of the Union Government, the intention of the
other mandatory Powers, the intention of al1 governments
concerned and of record, with the exception of one 7,whose subse-
quent acquiescence iti the resolutions relating to the Territory
of South-West Africa shows a change in its position, was not to
permit the adoption of the United Nations Charter or the dissolu-
tion of the Lcague to impair rights and obligations under the
mandates.
The provisions of Articles 77 (1) (a), 79 and 80 of the Charter
of the United Nations makc it clear that the Charter does not
termiliate anq7mandate but rather contemplates the continuing
existence of the inandates until other arrangements are agreed
irpon. Article So reads :
,,
I. Except as may be agreed upon in individual trusteeship
agreements, madc unclcr Articles 77, 79 and 81, placing each
territory under the trusteeship system, and until such agreements
have heen concludecl, nothing in this chapter shall be construed
in or of itself to alter in any nianner the rights whatsoever of
anv States or any peoples or the tcrms of existing international
instruments to which Members of the United Nations may
respectively be parties.
2. Paragraph I of this article shall riot be interpreted as giving
grounds for delay or postponernent of the negatiation and con-
clusion of agreements ior piacing mandatecl xncl other territories
under the trusteeship system as provided for in Article 77."
Article 77 (1) (a) enurnerates as one of the categories subject
to the application of Chapter XII "territories now held under
mandate". Again Article 79 rccluires approval of trusteeship
7 This wasEgypt. Scc Lea ueof Xations Oficial JozirnAssembly (~1st sess.,
rg46),Special Suppl.?;o.194, 58-59; U.N. Oficial fiecovdGeneral Assembly
(1stsess.2nd part, plenary,1g4G),13-7; same (2ndscss.plenary,Vol. 1), 650-
65: ; same(3rdsess.,1st part. plenary, rg592 ;same (2nd scsç.Fourth Com-
mittee,1g47), 51.98 WRITTEN STATEMENT OF THE U.S.A.
agreements by a mandatory Power "in the case of territories
held under mandate by a hlember of the United Nations".
Likewise the history of the framing of the Charter shows an
intention to conserve and not to end mandates. At the fourth
meeting of Committee 1114of the United Nations Conference on
International Organization at San Francisco, on May 14,1945,
"The delegate from the Union of South Africa, supylementing
his remarks at the third meeting, stated that the Committee
should bear in mind, in drawing up general principles, that the
terms of existing mandates could not be altered without the
consent of the mandatory Power." See IO, U.N.C.I.O. Doc. 439.
At the same meeting the representative of the United States
"pointed out that his Government did not seek to change the
relations existing between a mandatory and a rnandated territory
without the former's consent". See id., at 440. At the ninth
meeting, as at other times, the representative of Egypt made
clear his concern that the trusteeship provisions of the Charter
should not alter the rights of the peoples of a mandated territory.
See id., at 477. The Committee provisionally approved a text
after recording the following statement by the United States
delegate :
"The delegate for the United States stated that paragraph B 5
was intended as a conservatory or safeguarding clause. He was
willing and desirous tliat the minutes of this Comrnittee show
thst it is intended to mean that al1 rights, whatever they may
be, remain exactly the sanie asthey exist-that they are neither
increased nor diminished by the adoption of this Charter. Any
change is left as a matter for subsequent agreements. The clause
should neither add nor detract, but safeguard al1 existing rights,
whatever they rnay be.
The Chairman suggested that this statenient should be made
a matter of record." See id.,at 486.
The final report of the Committee to Commission II contained
the following explanation of the mstter :
"Alaintenance of existingïights'Conservatoty Clause'(Section B,
paragraph 5)
The Committee recommends that specific provision be made
to the effect that, escept as rnay be agreed upon in individual
trusteeship agreements and until such agreements have been
concluded, nothing in the chapter on dependent territories is to
be interpreted 'asaltering the rights of any States or any peoples
or the terms of existing international instruments to which hlcmber
States respectively rnay be parties. The Committee, also, recom-
mends that this provision for the safeguarding of sucli rights
and international instriiments shall not be interpreted as giving
grounds for delay or postponement in the negotiation and con-
clusion of agreements placing territories under the trusteeship
system. WRITTES STATEIIEST OF THE U.S.A. 99
Some delegates proposed that changes he made in this con-
of inhabitantsofaeach territory and not to tiie rights of mandatory
Powers and other States and peoples. Other delegateç felt that
there was no reaçon to cut off çome rights ancl preserve others.
They held that al1 rights without distinction sliould be treated
equally.
The delegate for the United States emphasizcd the fact that
paragraph 5 neither increased nor diminished the rights of any
States or any peoples with respect to any territories and that
any change in such rights would remain a matter for subsequent
agreements.
In the discussion of paragraph 5, it was suggested, with reference
to niandated territories, that the paragraph should inciude a
specific reference to paragraph 4 of Article 22 of the Covenant
of the League of Kations. Objections to this suggestion were
raisedon the groun~lsthat it would bc inaclvisahle10refer, speci-
fically, to any one international instrument to which al1 the
United Nations were not parties. It was stated that the phrase
'existing internntionr~l instruments'was yreferable.
The Cornmittee accepted the intcrpretation that among the
'rights whatsocver of any States or any peoples', mentioned in
the proposed amendment, there are includecl any rights set fortli
in paragraph 1 of Article 22 of the Covenant of the League of
Kations." Id., 610-611.
(c) London session of United Xatioiis General Assembly and
final session of League of Nations Assembly
At the first part of the First Session of the General AssembIy,
the Fourth Committee considered same of the problems arising
in the institution of the internatiorial trusteeship systern of the
Gnited Nations. The entire discussion at the cleventh and twelfth
meetings of the Committee \vas predicated on the continued exist-
ence of the mandates until nehv arra~igernents should be agreed
upon, such as the placing of a mandated tcrritory under trusteeship.
See U.N. Oficial Records, General Assernhly (1st sess., 1st part,
Fourth Cornmittcc, 1946), 6 (statements by rcpresentritives of
Nexv Zealand and Union of South Africa) ; id., at12 (statements
by representatives of the Ketherlands and France) ; id., at 13
(statement by representative of Australia).
Following this discussion in the Fourth Committcc, the Gencral
Assembly adopted liesolution XI (1)on February 9, 1946. That
resolution referred in its preamble to "Members of the United
Nations which are now administering tcrritorics held under man-
date", and in two operative paragraphs stated :
"3. Welcomes ttic declarations, matlc by certairi States admi-
nistering territories now held under mai~tlate,of an intention to
negotiate trustceship agreements in respect of some of those
territorie...IO0 U'RITTEN STATEJIEIST Of:THE U.S.A.
4. Invites the States administering territories now held under
niandate to undertake practical steps...."
The viem that the mandates continued in force after the diçsolu-
tion of the League uras clearly expressed by representatives of the
mandatory Pow-ers at the Twenty-First Session of the League of
Nations Assembly, held at Geneva, April8-18,1946. The represent-
atives of the United Kingdom and Francemadestatements ackno~v-
ledging the continuance of their obligations as mandatories. See
League of Nations O@ciaE Jo~ir72~1 1,ssembly (~1st sess.,plenary,
1936), 28 et sqy. The representative of Belgium specifically recog-
nized that Article 80 of the United Kations Charter, by preserving
rights, likewise preserved the correlative duties of mandatory
Powers. See id., at 43. The representative ofNew Zealand, recal-
ling the statements of Prime hfinister Fraser to the United Nations
General Assembly, said :
"New Zealand does not consider that the dissolution of the
1-eague of Estions and, as a consequence, of the Permanent
Mandates Commission will have tlie effect of dirninisliing lier
obligatioiis to the inhabitants of Western Samoa, or of increasing
her rights in theterritory. U~ltil the conclusion of our trusteeship
agreement for Western Samoa, therefore, the territory will continue
to be administered by New Zealand, in accordance with the terms
of the Mandate, for the promotio~i of the well-being and advance-
ment of the inhabitants."
,4nd the representative of Australia
"After the diçsolution of the League of Xatioiis aiid tlie con-
sequent liquidation of the Permanent Mandates Commission, it
will be impossible to continue the mandates systern in its entirety.
Notwithstanding this, the Government of Australia does not
regard the dissolution of the League as Iessening the obligations
imposed upon it for the protection and advancement of the in-
habitants of the mandated territories, which it regards as having
still full force and effect. Accordinglyuntil the coming into force
of appropriate trusteeship agreements under Cliapter XII of
the Charter, the Government of Australia xill continue to admi-
riister the present mandated territories,in accordance with the
provisions of the mandates, for the protection and advancement:
of the inhabitants. In making plans for the dissolution of the
League, the Assembly will 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 responçible. So far as the
Australian territoriesare coiicerned, there iç full assurance. In
due course these territories will be hrought under the trilsteeshiy
system of the United Kations ; iintil then, the ground is covered
not only by the pledge which the Governnient of Australia has
given to tliis Assembly to-day but also by the explicit international
obligations laid down in Chapter XI of the Charter, to which C
have referred. Tliere wilbe no gap, no interregnum, to be provided
for." See id., at 47. WRITTEN STATEJIEST OF THE U.S.A. 101
Probably the rnost esplicit statement of the coiitinuity of the
obligations of a mandatory Power following dissoIution of the
Leagtie of Natioris was that of the reprcsentative of the Union of
South Africa :
"Since thc last Lcague meeting, new circumstances have arisen
obliging the mandatory Powers to take into review the existing
arrangemeiits for the administration of their mandates. As was
f'ullyexplairied at the recent United Nations Genernl Assembly
in London, the Union Government have deemed it incumbent
upon them to consult the peopies of South-IVcst Alrica, European
and non-European alike, regarding the form wliich their oLvn
future government should take. On the basis of those consulta-
tions, and having regard to the unirlue circumstanceç which 50
signally differentiate South-West Africa-a territory contiguous
.with the Union-from al1 other mandates, it is the intention of
the Union Government, at the forthcoming session of the United ,
Nations Generiil Assembly in New York, to forrnuIate its case
for according South-West Africa a status uiidcr which it would
be internationally rccognized aç an integral part of the Union.
-4s the Assembly will know, it is already administered under the
terms of thc Mandate as an integral p:trt of the Uiiion. In the
meantinie, the Union will continue to üdrninister the territory
scrupulouçly in accordance with the obligations of the hiandate,
for the advancenicnt and promotion of the interests of the inha-
bitantç, as she lias done during the past six years wlien meetings
of the 3Ianrlrites Comrnisrion could not be Iield.
The disappearance of those organs of the 1,eague concerned
with the superi~isioii of mandates, primarily the ùlandntes Com-
mission ancl tfie League Council, will necessarily preclude com-
plete cornpliance with the letter of the hlandate. The Union
Government will nevertheless regard the dissolution of the Leagiie
as in no way climinishing its obligations rincler the Mandate,
which it will continue to discharge witli the full and proper
appreciation of its responsibilities untiluch time as other arrange-
ments are agreed upo~i concerning the future status of the
territory."See id., at 32-33.
Before adjoiirnmen t, the League Assernbly on April IS, 1946,
adopted the following resolution :
"The Assembiy,
Recalling that Article 22 of the Covenatit applies to certain
territoriesplnced under mandate the principie that the well-
being and deveiopnient of peoplcs not yet able to stand alone
in the strenuous conditions of the modern world form a sacred
trust of civilizatioii,
r. Expresses its satisfaction with the manner in which the
organs of the 1,engue have ~ierformed the fiinctions entrustcd
to thern witl-i respect to the mandates system and in particular
pays tribute to the work accomplished by the Permanent J"an-
dates Conimission ;IO2 1VHITTES STATEMEXT OF TH13 U.S.A.
2. Recalls the role of the League in assisting Iraq to progresç
from its status under an 'A' Mandate to a condition of complete
of Syria, the Lebanon and Transjordan, whiche niandated status
last session of the Asçembly, become independent members ofince the
the ~vorldcomniunity ;
3. Recognizes that, on the termination of tlic Lcague's existence,
its furictions with respect to the Mandated territories will corne
to an end, but notes that Chapters XI, XII and XII1 of the
Charter of the United Nations embody principles corresponding
to ttiose declared in Article 22 of the Covenant of the League ;
4. Takes note of the espressed intention of the Members of
the League now adrninistering territories under mandate to
continue to administer tl-iem for the well-bcing ancl development
of the peoples concerned in accordance with the obligations con-
tained in tlie respective mandates, until ottier arrangements have
been agreed between the United Nations and the respective
mandatory Powers," See id., at 55.
The oiily dissent was expressed by Egypt ; its view was "that
inandates have terminated with thc dissolution of the League
of Nations". However, the opinion was expressly related to the
case of Palestine, an "A" Mandate. See id., at 59.
The report of the Assernbly's Committee had stated before
this resolutioii \vas adopted :
"Following upon a number of staternerits in plenary session
of the Assembly with regard to the future of the territories nolv
held iinder mandate, this subject \vas but briefly discussed by
the First Cornmittee. Attention was drawn by the delegate of
China to the fact that, although the Charter of the United Nations
-in particular by tlie establishment of an international trustee-
ship system-embodied principles corresponding to those of the
mandate system, it made no provision for assumption by the
United Nations of the League's functions under that system as
such. The continued application to the mandated territories of
the yrinciples laid down in the Covenant of the League was a
inatter 011which the Assembly would wish to be rissurecl. The
First Committee tool; note of the fact that all the Members oi
the Leagiie now ad~ninistering mandated territories had expressed
tlieir intention to continue, notwithstanding the dissolution of
the League, to administer these territories for the weil-being and
deveIopment of the peoples concerned in accordance with their
obligatioiis under the respective inandates, until other arrangements
were ngreed upon with the United Nations." See id.,at 2j1.
(rl) Sessions of the General Assembly 1946-1949
011 Octobcr g, 1946, the Union of South Africa placed on the
provisioiial agenda of the General Assembly an item entitled
"Statemciit by the Union of South Africa on the outcome of their
consultations with the peoples of South-West Africa as to the
future statils of the mandated territory and i~nplementation to IVRITTES STATEJIEST OF THE U.S.A. IO3
be given to the wishes thus expressed", thuç carrying out its earlier
cornmitment to present its case concerning South-West Africa
to the United Nations, In a letter datcd October 17, 1946, and
addressed to the Secretary-Gencral for circulation to the other
Members of the United Nations, the Government of the Union
acknowledged the continuing status of South-West Africa as a
mandate.
The language of the letter of October r7 and of the lengthy
memorandum which accompanied it is repetitively eloqucnt of
the major prernise of the Union Govcrnment that the mandate
relationship, with its attendant rights and obligations, was still
iri farce. Sce U.N. Oflcial Records, General Assembly (1st sess.,
2nd part, Fourth Committee, Part 1, 19461, 199-235. Wlien the
Fourth Committee took up the South-West Africa agenda item,
Field J.larsha1Smuts, representi~ig South Africa, made it clear thst
the Union of South Africa had not nctcd to alter thc status of
the mandated territory without co~isriltation with its inhabitants
and "the competent international urgans", and quoted with'
Union
approval the statement of Egeland at Geneva that the
woulcl "continue to administer the territory scrupulously in accor-
dance with the obligations of the mandate". See U.N. O@cW1
Records, General Açsembly (1st sess., 2nd part, Fourth Committee,
Part I,1946),335, 239-240.
The general tenor of discussion in the General Assembly from
1946-1948 was that the mandate for South-West Africa continucd
in existence. See U.N. Oficial Records G,eneral Asçembly (1st
sess., 2nd part, Fourth Committcc, Sub-Committee 2, 1946).
48 (statement by rcpresentative of India) ;same (2nd sess., Fourth
Committee, x947), 50 (statement by representative of United
States) ; id., at 47 (statement by representative of Denmark) ;
id.,at 55 (statement by representative of PiIe?iic;)id.,at6 (statc-
ment by representatir~e of China) ; same (and sess., pleaary, 1947).
581-584 (statement by representativc of Australia) ; id., at 597
(statement by representative of India) ; same (3rd sess., 1st part,
Fourth Committee, rgqS), 312-313 (statement by representative
of Uruguay) ;id., at3x5 (statement by reliresentative of Pakistan);
-id., at318-319 (statement by representative of Brazil) ; id., at
325-326(statcment hy representative of Belgium) ; id., at 349
(statement by rcpresentative of Deriniark) ; id. ,t 350-351 (state-
ment by represe~itative of Unitcd States). A minoritp of the
members of the Assembly took the position that the Mandate hacl
already expired ;most of these premised their conclusion by con-
tending that tlie trusteeship syçtem had already in fact replaced
the mandate system since the placing of mandates under trustec-
ship \vas comyulsory. See U.N. Oficiu R ecords,General Assembly
(1st sess., 2nd part, Fourth Cornmittee, Sub-Cornmittee z, 19461,
48-49 (U.S.S.R.) ; same (and sesç., Foiirth Coinmittee, 1947)~
8 (Guatemala) ;id., atx4, 60 (Uruguay) ;id., at14, 64 (Colombia) ;IO4 \%'RITTES STATELIEST OF THE U.S.A.
id., at 5j (Cuba) ; same (3rd sess., 1st part, Fourth Cornmittee,
1946), 365 (Costa Rica) B.
South Africa at the sessions of the General Assembly in 1946-
1947by no means embraced the minority view but firmly supported
the vie\\- of the rnajority. See U.N. OficinE Records, General
Assembly (1st sess,, 2nd part, plcnary, ~gqS), 1326 ; same (2nd
sess., Fourth Cornmittee, 1947). 3-4, 135 (communication to
United Nations from Union Government) ;id. a,t193 ;same (2nd
sess., plenary, 1947)~632-634.
Conclusive of the officia1 views of the United Nations and of
the majority of the mernbers of the comrnunity of nations are
the resolutions passed in 1946, 1947 and 1948 by the General
Assembly. By Resolution SI (1) of February g, 1946, the General
Assembly welcomed "The declnrations made by certain States
administering tcrritories nolv held under mandate of an intention
to negotiate ....and invited "the States administering territories
now held under mandate" to implernent Article 79 of the Charter.
This resolution mas unaiiimously adopted. See U.N. O@cinE Records,
General Assembly (1st sess.,1st part, plenary, 1946),76.On Decem-
ber 14,194 h,e General Assembly in Resolution 6j (1)again referred
to South-\ITest Africa as ''no\\?held under mandate" and "mandated
territory". Resolution 141 (II) of November I, 1947, not only
maintained the recominendatioiis of Resolutiori 65 (1), but itself
carefully distinguishcd betnlee~i "al1 other States administering
territories previously held undcr mandate" which had placed such
territories under trusteeship or had offered them independence,
and the Union of South Africn which l~ad informed the United
Nations that it \vould "maintûiii the slatusquo" and "continue to
administer the territory in tlie spirit of the existing mandate".
Also unequivocal is the language of Resolution 227 (III)of Novem-
ber 26, 1948, which refers to "the mandated Territory of
South-West Africa" and "the esisting Mandate", and which
inaintains the recornmendatioiis of the previous resolutions.
Recent deveioprnents with respect to the Union of South Africa's
administration of South-West Africa and the expressions of Union
represcntatives indicating partial or total termination of the
Mandate, although perhaps foreshado\ved in 1947, first dearly
appear in 1948. Rcad beside the record of contemyorary events
and statements, such belated com~nents are iiot persuasive as
to the intentions and understanding of the Union and other
States when the Leaguc was dissolved and the United Nations
establislied. They are, moreover, inconsistent with continued
assertion by the Union of authority over the mandated territory,
since tcrminatio~i of the manclatc would havc ended the Unioii's
authority in the Territory.
8 But cfU.N. OficialR~cords, General Assembly (2nd sess., plenary, 1947).
Gog (Netherland;)same Crnd sess., Fourth Cornmi19+7),IO (Iraq). ~\'RIïTE':STATEJIEST OF THE U.S.A. IOj
On Noveinber g, 1948, R'Ir.Louw, the represeiitative of South
Africa in theFourth Committee, referred tothe fact that an agree-
ment reachecl on October 21, 1948. between the Union Government
and the political parties of S0uth-14~estAfrica "provided for a
closes association aiid integration of South-West Africa &th the
'Union of South Africa alortg the lincs erivisagcd in the previous
mandate, sincc esyired". See U.N. Ogicial Records, Gcneral
Assernbly (3rd sess., 1st part, Fourth Committce, ~gqS),293. This
\vas the firçt assertion by South Africa in the United Nations that
the Mandate \vas no longer in force.
The meaniiig and effcct of this assertion is obscured by certain
other statements made by the South-.srfrican representative to the
Fourth Committee at the same .tirne. For esample, >Ir. Louw
maintained that there had been no change of position by the Union
Government with respect to South-West Africa ;only a year pre-
viously the Union had nsserted the continui~lg statlis of South-
iVeçt Africa as a niandated territory. hlr. Louw reaffirmed his
Government's firm intention to admiiiister the Territory "in the
spirit of the mandate". See id., at 310. Later on in Fourth
Committee discussion, the represeiitative of South Africa objected
to a proposed paragraph in a draft resolution because it "was
contrarp to the provisions of the Charter, inaçrnuch as it disregarded
rights possesçed by the Union of South Africa undcr the XIandate
aiid the Charter". See id., at 368. .The reprcsentative of South
-Africa at the plenary sessi011of the Paris meeting of the Assembly
qu0ted.a cable just received from hiç Prime illinister \\hich stated :
"Thc South African Government is escrcisiiig n right lvhich has
never been disputed to administer the Territory as ail integrsl part
of the Union." See U.N. Ogîcial Records, Gciieral Assembly (3rd
sess., 1st part, plenary, 1gq8), 587.
011 July II, 1949, Tvlr5. R. Jordaan, deputy permanent repre-
sentative of the Union of South Africa to the Unitccl Nations, by
letter to the Secretary-General inforrned the latter that the Union
Governmerit would subinit no further reports to the United Nations
respecting S~uth-\!~est Africa, and transmitted a copy of the South-
1Vest Africa Affairs Amendment Act (Ko. 23) of 1949. He said in
closing :
"In particular, it will bcnoted from the summary that under
the new form of association, which is entirely consonant with
the spiritof the Mandate, no greater powers are devolved upon
the Union Government in respect of South-\Vest Africa than
were accorded under the terms of tfieoriginal Jlandntc, but on
the otl-ier Iiand certain powerpreviouslyeserciscd by tlic Vnion
Governnlent are now to be exercised by the Legislature of South-
West Africa, wliich thus esercises a considerably greater measure
of self-government than is enjoyed by a province of the Union."
(U.X. Doc. AJgzg,July 13, 1949.)i06 \VRITTES STATBMEST OF THE u.s.~~.
When the General Assembly met at its Fourth Session in 1949,
the representative of South-West Africa appeared again to recognize
the continued esistence of the Mandate, and asserted that the
Union's rights stemmed from the Mandate. See U.N. Ogiciaf
Recouds, Gencral Assemhly (4th sess., Fourth Cornmittee, 1g4g),
213-239.
C. Descriptiolz of the Uîiiols'sobligntî'olts.~cxderthe ilfri~idate
The substantive obligations of the Union of Soutli Africa with
respect to the Territory of South-\\'est Africa are set forth in the
mandate instrument :
" Article I. The territory over which a mandate is co~iferred
upon His Britannic Majesty for and on belialf of the Government
of the Union of South Africa (hereinafter calIed the Mandatory)
comprises the territory which for~nerly constitutcd the German
Protectorate of South-West Africa.
Article 2.The Mandatory shall have full power of administration
and legislation over the territory subjcct 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 mny reqiiire.
The IiIandatory 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.
Article 3. Ttie Llandatory shall see that the slave trade is
prohibited, and that no forced labour is permittecl, except for
essential public works and services, and then only for adequate
remuneration.
The supply of intoxicating spirits and beverages to the natives
shall be prohibited.
Ar6icle4. The rnilitary trainingof the natives, otherwise than
for purposes of interna1 police and the local defence of the territory,
sliall be prohibited. Furthermore, no military or iiaval bases
shall be established or fortifications erected in the territory.
Article 5. Subject to the provisions of any local law for the
maintenance of piiblic order and public morals, the hiandatory
shall ensure in the territory freedom of consciencc and the free
esercise of al1 forrns of worship, aiid shall allow al1.niissionaries,
nationais of any Strite hlember of the League ofNations, to enter
into, travel and reside in the territory for the purpose of prose-
cuting their calling."
2. Other aspects oj the Alnndafe
(a) 'The problems raised by Article 7 of the maiiclate instru-
ment (rnodificatioii, disputes) are discussed in Part IV below
(pages 127 d sqq.) IVRITTEN ST.4TE?IIENT OF THE U.S.A. Io?
(b) Reporting
~rticle 6 of the South-\L'est Africs Mandate reads :
"The hlandatory shall make to the Council of the League of
Nations an annual report to the satisfaction of the Council, con-
tainingfull information withregard to the Territory,and indicating
the measures taken to carry out the obligations assumed under
Articles2, 3, 4 and 5."
With the 1,eague of Nations no longer in existence, itis obvious
that s mandatory Po~ver cannot submit reports to the League
Council. It is necessary to consider whethcr some substitute arran-
gement is available, so that technical difficulties shall not frustrate
fulfilment of the Mandate objective statcd in these words by
Presideiit Wilson :
"The administration would be so mucli inthe view of the world
that unfait processes could not be successfully attempted."
The reporting function has always been considcred an esseiitial
clernciit in the mandate system, serving by n7ay of assurance to the
international community that the "sacred trust" over dependent
areas adminiçtered by mandatory Po\vers is being faithfully
esecuted. Indeed, the reporting function was regarded as so impor-
tant-and as being required by Article 22 of the League Covenant
quite apart from the requirements of individual mandate ilistru-
~nents-that the League Council causcd reports on mandated
territories to be submitted ancl cxamitied even before mandate
instruments had been approved for thc territories in question.
It \vas made clear in the League Council that thc Council urould
intervene and fix the Mandate terms (pursuant to Article 22,
paragraph 8, of the Covenant) if too mrich timc elapscd before
these should be agreed to with the mandatories-designate. The
Council permitted interim administration by thesc Z'o~+~cr osnly
on coiiciition of their furnishing reports. Sec Lcague of Nations
Council, P.V. eo/zg/r6 (10th sess., ~gzo), 25-26 ;Leagtie of Nations
Oficial JOI~YIEU~, Assernbly (2nd scss.,plenary, 1921), 345, 347-
348 ; I,eague of Nations Ofici~E Joirnzal, Permanent Mandates
Commission (1st sess., I~SI), 8, 2s ; League of Xations 08cial
Joîtrnal, Council (14th sess., end part, I~ZI), Annex 272 (pages 3-
4), Arincs 266.
155th the dissolution of theLeague, it would be natural to expect
that United Nations machinery might be suhstituted for League
machinery in the examination of reports on mandates not yet
converted into trust terntories. The language of the Charter gives
somc indication on this point by stating (iiArticle 80) that nothing
in the trusteeship chapter shall bc construcd "to alter in any
mariner the rjghts whatsoever of any States or any peoples or the
terms of cxisting international instruments to which Members of
the United Nations may respectively be parties", Thuç it \vould108 XVRITTEX STATEhIENT OF THE U.S.A.
seem, in view of the importance of reporting under the mandate
system, that this function is preserved by Article 80 of the Charter
-"the conservatory clause". The United Nations ~vould be the
logical and only representative of the international community to
receive mandate reports.
Prime Miiiister Fraser's remarks before Commission II of thc
united Nations Conference on International Organization at San
Fiaiicisco arc illuminating in this regard :
"The work imrnediately ahead is how those rrrandates that
were previously superviçed by the Mandates Commission of the
1-eague of Nations can now be supervised by the Trustecship
Council with every maridatory authority pledging itself in the
first instance as the test of sincerity demands, whatever may
Iiappen to tlie territory afterwards, to ackiiowledge the autfiority
and the sripervision of this Trusteeship Council that Iiaç been
lielped towarcl its formation this evening." U.N.C.I.O. Docs. 1144
(junc 21, 1945) ;1208 (June 27, 1945).
There \vas no dissent from this statement, and the report of
Cornmittee 1114 was thereupon unanimously approved by the
Commissioii.
At the first part of its First Session, the United Nations Gencral
Assembly on Fehruary 12, 1946, adopted Resolution XIV-I (1),
entitled "Traiisfer of certain functions, activities and asçets of the
League of Nations.-Fuiictions and powers belonging to the League
of Nations uiider intcrnatioiial agreemeiits." The resolution
provides, in part :
"tinder various treaties and international coiiventioris, agree-
ments and other instruments, the League of Nations and its
organs esercise, or ma' be requested to exerciçe, numerous func-
tions or powers for the continuance of which, after the diçsolution
of the League, it is, or rnay be, desirable that the United Nations
sliould provide.
Certain 3lembers of the United Nations, which are parties to
some of these instruments and are filembers of the League of
Nations, have informed the Generat Assembly that, at the forth-
coming scssion of tlie Assembly of the League, tlicy intend to
move a resolution whereby the AIembers of the League would,
so für as this is iiecessary, assentand give effect to thc stcps
coriteniplated ùelow.
Thcrefore :
I. The General Assembiy reserves the right to decide, after
due examination, not to assume any particular function or power,
and to determine which organ of the United Nations or which
specialized agency brouglit into relationship with the United
Nations sliould exercise each yarticular function or power assumed.
2. The General .4ssembly records that those Members of the
United Nations which are parties to the instruments referred
to above assent by this resolution to the steps contemplated WRITTEN STATEAIEXT OF THE U.S.A. IOg
below and express their resolve to use their good officesto secure
the CO-operationof .the otkier parties to the instriinients so far
as this may be necessary.
3. The General Açsembly declares that the Uriited h'ations
is williiig in principleand subject to the provisions of this reso-
lution and of the Charter oi the United Nations, to assume the
ethe League of Nations, and adopts the folloiving deciçions, setto
forth in A, B, and C below.
C. Functions and powers under treaties, international con-
ventions, agreerneiits and other instruments having a political
character.
The General Assembly will itself examine, or will submit to
the appropriate organ of the United Nations, any request from
the parties that the United Xations should açsiime the exercise
of functions or powers entrusted to the League of Nations by
treaties, international conventions, agreements and ottier instru-
ments linving a political character."
The background of this resolution, in the United Nations Prepa-
ratory Commission, in itsconstitilent committees, and in the ad
ltoc League of Nations Committee of the General Assembly (first
session, first part), discloses thatthere was little discussion of the
mandates problem in preparing Resolution XIV-1 (1) for adop-
tion by the General Assembly. It appears from the history of
the resolution as well as from the wording of Part Cthat it was not
intended automatically to transfer, to the United Nations, League
of Nations functions with respect to mandates. It was contem-
plated that the windiiig-upof the mandate systern would be accom-
plished pursuant to the trusteeship chapter of the Charter. But,
to the extent that this \vas not done and that functions with
respect to mandates remained outstanding, it is submitted that
Resolution XIV-1 (1) constitutes a general provision under the
authority of which the General Asscmbly may consider and decide
to assume certain League of Nations functions under i~lstruments
having a political character, including mandate functions if these
-contrary to cxpectation-should remain to be attended to.
The resolution providcs that the General Assernbly shall consider
the question of assuming such League of Nations functions on
"any request from the parties". So far as reporting under the
South-West Africa Mandate is concerncd, it tvould seem that the
Union of South Africa has taken the necessary steps to place the
matter before the General Assembly, and that the Assembly has
provided for aççumption of the League of Nations function iti man-
date reporting. The Union Government submitted to the United
Nations a report on South-West Africa for 1946. The General
Assenibly, in Resolutions 141 (II)and 227 (III), made specific provi- 1IO \\'RITTES ST:\TEJIEST OF THE U.S.A.
sion for esamination by the Trusteeship Council of reports on
South-West -4frica.
In this connexion the attitude of the Uni011Government on
re~orting after the League's demise seems significant. In 1947
the Uiiion Government was of the opinion that it "should continue
to render reports to the United Nations Organization as it had
done heretofore under the hIandateU. See U.N. Oficial Records,
General Assembly (2nd scss., Fourth Committee, 1c)17), 134 (resolu-
tion adopted by Parliament of Union of South Africa, quoted in
lettcr of Juljr 23, 1947 rom Union Government to United Nations
Secretary-General). On Septemher 12, 1947, the Union Govern-
nient fonvarded another letter to the Secretary-General, containing
its report for 1946 on South-West Africa, and statir-ig that this
report was in terms of the Union Governmeilt's letter of 23 July,
At the
1947. See U.N. Doc. Aj334/Add. I (September 22, 1947).
samc session of the General Assembly, the representative of South
Africa unequivocally "assured the Committee tliat the Government
of the Union had given its word and would, therefore, submit
annually a report on South-West Africa". See U.N. Oficial
Records,General Assembly (2nd sess., Fourth Cornmittee, 1g47), 16.
At the Third Session of the General Assembly, in 1948, RIr.Louw,
rcpresenting the Government of the Union of South Africa, made
refercnce to "the distinct understanding that the Unitcd Nations
had no supervisory jurisdiction in the Territory", and to the sub-
mission of the report in 1947 as "for purposes of information and
as a gcsture" and "on a voluntary basis" and not "as an admissioii.
of nccountability for the administration of South-\Vat Africa" ;.
he claimed that the Truçtecship Cou~icil could not "determine.
wliether the Union of South Africa is adequately discharging its.
responsibilities under the terms of the Mandate", and said that the
League did not "make the United Nations its legatee in respect
of the mandated territories" B. See U.N. O$cinE.Records,General.
Assembly (3rd sess., 1st part, Fourth Committee, 194S), zS7-289,
n in this connexion. it should bc obçrrvcd that the first officia1 communication
trithe United Sations ofthc vicw that reportingisstrictly s voluntarmatter
ivith the Union of South Africa woul(1appear to be finthc lctter of its deputy
pcrrnancnt representativeof May 31. 1945,forwarding atlditionalinformation.
rctlucstcd by thc Trusieeship Council. In that letter the Union Govcrnmcnt:stated
"The Union Government inforwarding these replies desire to reitcratc that the
transmissiotto the United Nations ofinformation on South-\Vest Africa, in the.
form of anannual reportor any otherform.is on a iroluntary basis and is for pur-
posesot information only. Thcy have on several occasions maitclear that they
l-iew of the wide-spreainterestin the administrationof the l'erritorand ins, but in
accordancc with normal democraticpractice. they are willing and anxiouç to make
available to thearld such facis and figures as are readily at their disposai. and
which can be collated and CO-ordinated without placing excessive burdcnson
staff reçources to the dctrimcnt of urgent tasks of administratU.S. Oficiat
Recouds, Ti175 (lune 3,1948). ii. !\'RITTES STATEMEST 01: 'TI.IEU.S.A. III
It is evideiit that these statementsof 1948were not in accord
with earlier statemcnts made by the Government of the Union
or with the gencral course of conduct it had been following from
1946 up to that time in regard to South-West Africa.
lt is concluded, on the basis of Article 80 of the Charter, on the
I~açisof General Assernbly Resolution XIV-1 (1) of February 12,
1946, on the basis of the Union's conduct in pledging itself to submit
reports and in reporting, and on the basis of the Assembly's subse-
quent action, that the United Nations has assumed the exercise
of the League of Nations function in regard to reporting on the
mandated Territory of South-West Africn. Tt is believed, there-
fore, that the Union of 'South Africa coiltinues to be obligated,
under the Mandate, to submit reports on its administration of
the Territory, submitting these to the United Nations for considera-
tion by the organ ~vhichthe General Assembly designates for this
~>ucpose.
II. APPLICABILIT 01:THE PROVISIOXS OF CHAPTER XII OF THE
UNITED NATIONSCHARTE K0 THE TERRITOR OF SOUTH-
WEST AFRICA
The Gencral Assembly, in one of the particular inquiries which
it has submitted to the Court, has asked : "(b) Are the provisions
of Chapter XII of the Charter applicable and, if so, in what manner,
to the Territory of S~uth-I!~est Afnca ?" This particular inquiry
raises, first, the issue whether South-Ji'est Africa, as one of the
mandated territories, cornes \vithiri the gencral purview of Chap-
ter XII. It is coricluded that Chapter XII does provide for the
placing of rnandated territories under the international trusteeship
system of the United Nations, but that the placing of mandated
territoriesunder trusteeship is not compulsory.
A. The provisions of CIzapterXII O/ the Charterare a$PEicabletu
Soztfh-West -4frica
Itis evident from a reading of ChapteXII in the United Nations
Charter, from a consideration of the history of its provisions,
and from the circumstances and situation which the Charter's
provisions were intended to meet, that Chapter XII is applicable
to mandaied territories and, among them, to South-West Africa. .
Thc mandate system, which was established following the First
IVorld \Var, was still in existence at the enof the Second World
\Var, when the United Nations Charter was being framed. Under
the Charter, a new international o~ganization \vas to be c~eated,
and the League of Hations wouldgo out of existence. Chapter XII
of the Charter {sasdesigned for the purposofsetting up an interna-
tional trusteeshipsystem under the autliority of the United Nations.
This trusteeship system was by iio mearis limited in its intendcd
scope to the mandated tcrritories, but it was clcarly conternplatedII2 IVRIMEX STATEBIEKT OF THE U.S.A.
that existing mandates not yet ready for independence ~vould be
converted into trust territories under the United Nations interna-
tional trusteeship system. Organs of the League of Xations had
played an important role in the operation of the mandate system.
Since the League was to terminate, ohviously new machinery Ras
required to take over the functions of the League organs. And,
indeed, there were reasons for reexamining some substantive
aspects of the concept of international trusteeship, so that revi-
sions of the mandate systern might be made in the course of
converting mandated territories into trust territories.
I. The Cltarter $trovisio?a:s Articles77, 79, 80 (2)
That the provisions of Chapter XII are applicable to rnandated
territories,including South-West Africa, is made evident first of
all in the language of the Charter itself. Article 77 of the Charter
provides :
"1. The trusteeship system shall apply to such territories in
the following categories as may be ylaced thereunder by means
of trusteeship agreements :
(a) territories now held under mandate ;
(6) tcrritosies which may be detached irom enemy States
as a result of the Second World War ; and
. (c) territories voluntarily placed under the system by States
responsibke for their administration.
2. It will he a matter for subsequent agreement asto which
territoriesin the foregoing categories willbe brought under the
trusteeship system and upon what terms."
Sub-paragraph I (a) of this article refers directly to "territories
now held under mandate" as included within the general scope of
the interiiational trusteeship system to be set up pursuant to
Chapter XII.
Article 79 provides :
"The terms of trusteeship for each territory to be placed under
the trusteeship system, including any alteration or amendment,
shall be agreed upon by the States directly concerned, including
themandatory Foiver in the case of territor hels under mandate
by a Member of the United Waiions, and shall. be approved as
provided for in Articles €13and Sj."
Here again the language of the Charter makes quite clear that
mandated territories are covered by the trusteeship chapter.
Article 80 contains what has been referred to as the "conser-
vatory" clause :
"Except as may be agreed upori in individual trusteeship
agreements, made under Articles 77, 79, and SI, placing each
territory under the trusteeship system, and until such agreements
have been concluded, nothing in this chapter shall be construed WRITTES STATE3IEST OF THE U.S.A. 1x3
in or of itself to altein any manner the rights whatsoever of
any States or any peoples or the terms of existing international
instruments to which Membersof the United Xations may respect-
ivelyhe parties.
2. Paragraph I of this article shall not be interpreted as giving
grounds for delay or postponemerit of the negotiation and con-
clusion of agreements for placing mandated and ather territories
iinder the trusteeship system as provided for in Article 77."
Paragraph z of this article refers directly to mandated territories
as being the subject of the negotiation and conclusion of agree-
ments for placing them under the international truçteeship system ,
of the United Nations.
Thcse provisions of the Charter leavc no doubt that the
provisions of Chapter XII are applicable to the Territory of South-
West Africa as one of the mandated territories.
2. Hislory of CIzapterXII at the San Francisco Conference
Since the terms of the Charter are in themselves so clear, it is
scarcely necessary to refer to the proceedings at the San Francisco
Conferencc in order to gain a definite understanding of the scope
of Chapter XII so far as its applicability to mandated territories
is concerned. Accordingly, no extended discussion of the San
Francisco Conference will be undertaken at this point and only
a few illustrative instances will be cited.
Throughout the proceedings of Committce II14 at San Francisco,
thcrc was a complete understanding that the provisions wkich
later became Chepter XII of the Charter woulcl be applicable to
mandates with a view to converting these iiitotrust territories.
This is indicated in the statements of a number of representatives
onthecornmittee. See,e.g., U.N.C.I.O.Docs. 241 (May~r, 1945)~
I ; 2G0 (May 12, 19451, 2 ; 310(May rg, 1945) 2~;448 (May 13,
1945) 2);512 (Jlay 23, 194.5)~1; 552 (hfay24, 19451,3; 877 (June 9,
19451 31.
The report of the Rapporteur of Committee II14 to Commis-
sion 11 at San Francisco contained the following statement :
"The Committee recommends that the trusteeship system
shall be applicable to such territories in certain specifiedcategories
categories arelnc(a)thterritoriesriowstheldipunderememandatee...."
U.N.C.I.O. Doc. 1115 (June 20, 1g45)4 ,.
At the third meeting of Commission II, on June 20, 1945, when
that commission took up the report of Committee 1114,the Presi-
dent of thc commission, Field Marshal Smuts, said in his opening
statement thst the portion of the Charter which was to become
Chapter XII "dealls to some extent with the old field already
covered in the Covenant of the League of Nations, aiid the provision
thcre is this : That with regard to certain types of dependent II? IVRITTES STATEJIEXT OF THE U.S.A.
territories, old mandate territories, territories iiewly conquered
and takeii from esisting Potvers, and also colonies where the
governirig Power is prepared voluntarily to place them under
tr1isteeshil-i-al1 these various types of territories will fa11under
the trusteeship system, which will impose stricter conditions than
those prescribed in Section A" [Section ,A s~bsec~uentlybecamc
Chapter XI of the Charter]. See U.N.C.I.O. Docs. 1144 (June 21,
1945) ; 120s (June 27, 1945).
Before Ieaving this consideration of the history of Chapter XII
at San Francisco, it should be noted that the delegation of the
Union of South Africa circulated among the other delegations and
sought to introduce iiiCornmittee III4 a statemcnt which represen-
tatives of the Union Government have subsequently referred to
as a "reservation". This statement argued in favour of incorpora-
tion of South-West Africa in the Union '* and exyressed the Union
--
IOThe text of the statemcnt was as follows :
"(a) When the disposal of enemy territory iinder the Treaty of Versailles was
undw consideratio~i, tlouht was expressed as to the suitabilityof the mandatory
form of administration for the territorywhich formerly cvnstitutcd the German
Protectorate of South-\Vest Africu.
"(b) Neverthcless, on 17 Dccember, 1920, by agrccrncnt hetween the Principal
, Allied and Associatetl Powers and in accordance with Article22, Part 1 (Covenant
of the Leaguti of Sations) of the Treaty, a mandate (comnionly referred to as a.C
Mandate) was conferred upon the Government of the Union of South Africa to
administer the said Territory.
"(c) Under the mandate the Union of South Africa \vas granted full poiver of
administration and legislation over the Territory as an integral portion of the
Union of South Africa, with authority to apply the laws of the Union to it.
"(d) For twenty-five years, the Union of South Africa has governed and admin-
istered the Territory asan integral part of its own territory andhas promoted to
the utmost the material and moral aell-being ancl the social progress of the inhab-
itants.
"It has applied many of its laws to the Territory and has faithfully performed
its obligationsunder the mandate.
"(e) The Territory is ina unique positioti wlien cornpared miili other territories
undcr the same form of mandate.
"(f) It iç gcograpliically and strategicala part of the Union of South Africa,
and in World War 1a rebellion in the Union \vas fornented from it, and an attack
launched against the Union.
"(g) It is in large measure economicatly depcnttent upon the Union, whose
railways serve it and from which itdraws the great bulk of its supplies.
"(h) Its depenclcnt native peoples spring from the same ethnological stem as the
great mass of the native peoples of the Union.
"(i) Two thirds of the European population are of Union origin and arc Union
nationals,and the remaining one third are enemy nationats.
"(j) Tlie Territory has its own Iegislative Assembly grantcd to it by the Union
Parliament. and this Assembty has submitted a rcqucst for incorporation of the
Territory as part of the Union.
"(k) The Union has introduced a progressive policy of nntivc administration.
including a system of local government through native councits giving the natives
a voice in the management of thcir own affairs; and urider Union administratioti
native reservcs have reached a high state of economic cie\,ctoptnent. WRITTEK STATEAIEET OF THE U.S.'A. II5
~overnment's intention to raise the matter at a subsequent peace
conference. The South-African represcntative, after having
circulated copies of this statement 011 May 7, 1945, read it in the
Cornmittee on May 12, 1945. The records of the Conference
show that "the Chairman ruled that references to specific territories
were only in order when used for illustrative purposeS. The task
of the Committee was to discuss principles and machinery, not ~
individual territorial issues." U.N.C.I.O. Doc. 260 (May 13,
1945) 2-
At the Second Session of the General Asçemlily, the represeii-
tativc of the Union of South Africa made the follon~ingstatement
concerning the South-African "rescrvation" in a plenafy meeting :
"....It is onlp in respect of this territory that 3.specific rcser-
vation lias been niarle. This was done at Sari Francisco before
the Charter was signed and also at the First Session of the General
Assembly in London. Tt hm beeri said that a11kinrls of people
might have niade reservations, but the reservation was in fact
made and that fact was known to al1 parties. It is truethat this
reservatinn does not appear against the signature'of the Charter
on behalf of the Governmcnt of the Union of South Africa. The
reason for this is a very simple one. It was not necessary to make
this reservation in thnt way because the Charter quite clearly
does not impose any obligation to deal with the territory only
by submitting a trusteeship agreement and i~i no other way.
My Government, nevertheless, thought it expedient, in order to
avoid al1 future misunderstanding, to makc their position iii
regard to this territory quite clear. That was done in Hie only
way in wliich it could properly and appropriately be clone,namely,
by meaiis of an official statement handed in at San Francisco
as a conference document.
It is true that when this document uras subsequently read hy
the South-ilfrican represcntative before tlic coinmittee dealing
with the truçteeship provisions of the Charter, it was ruled out
by tlie Chairrnan of that committee, but only iii so far as it could
be s:iid to he introduced for the expression of ail opinion or for
action by that committee in relation to the future of the territor?,
and not in so far as it served merely as an illustration of the
"(I) In vicw of contiguityand similaritin compositiori of the nativpeoples
of South-1lr\lest Africa, the native policy followed in South-\!'est Africa must always
be aligneù with that of the Union, thrce fiofthepopulation of ivhicisnative.
"(nt) There is no prospect of the Territory cver existanseparate State. and
the ultimate objective of the inandatory principlcis thereforeimpossible of
achievemen t.
"(n) The dclegationofthe Union of South Africa thcreforc claiinç that the man-
date shoultl be terminateand that thc Territory should be incorporatcas part
of the Union of South Af~ica.
"!O) As territorial questionarc howclver reserved for handling at thelatrr
Peace Conference. where the Union of South -4fricintends to raise this matter,
it is here only mcntionefor the information of the Confcrence in connexion ivith
the mandates qucstion,"Sec U.S. OficialRecords,General Assembly (1st sess.,
2nd part, Fourth Committee, Part 1. 1946),zoo (hnnex 13).116 IVRITTEN STATE3IEST OF THE U.S.A.
difficultiesof administering 'C' It was ruled out, to
the extent 1 have just described, on the ground that itdealt
with the future of a particular territory, whilst the cornmittee
was concerned not with particular territories but with the general
principles of the trusteeship systeni. But this cannot aIter the
indisputable fact that this statement was handed into the Secret-
ariat as a conference document, and that it was circulatedas
such and brought to the notice of the representatives of the other
States." See U.N. -A/P.V.105 (2nd sess., plenary, 1947),1s7-190.
It is not believed that the statement ciiculated by the South
African delegation at San Francisco and the subsequent references
made to it by representatives of the Union Government in any
way affect the general conclusion that the provisions of ChapteXII
of the Charter are applicable to the mandated Territory of South-
West Africa. Neither in its content nor in the manner in ~vhich
the "reservation" was presented does the statement of May 7,
1945, derogate from the general applicahiIity of Chapter XII to
mandates, inclurling the Territory of South-West Africa. The
effect of the "reservation" \vas simply to give notice that the
Union of South Africa woutd later raise in a competent forum the
question of the future of South-West Africa, with a view to incor-
poration of that Territory in the Union.
3. Final sess,ionof flzeLeagzceof Nations Assembly
It was clearly the i~nderstanding of the mandatory Powers,
when they met at the last session of the League Assembly, that
the yrovisions of Chapter XII of the United Nations Charter
mere applicable to mandates. The Acting Secretary-General of
the League of Natiot~s included the following statement in his
"Report on the work of the League during the IVar" submitted
to League blembers just before the final sessioii : "ils to the
methods by which the mandates system can be replaced by the
trusteeship system outlined in the Charter, it is expected that
govcrnrner-its wiIl make proposals during the League Assembly
meeting." See Leaguc of Nations Document A.6.1946 (Intro-
duction). 111statements made before the League AçsembIy at
its last session, representatives of the British, Chinese, French,
New Zealand, Belgian and Australian Governments al1 indicated
their understanding that the provisions of Chapter XII of the
Charter were applicable to mandated territoriesand that the
Charter co~itemplated the conversion of mandates into trust
territories.
4. Early sessions of the United Natiolzs Geneval Assembly
The Geileral Assembly, at the first part of its First Session,
adopted on February g, 1946, Resolution XI (1), which contained
the following preainbulatory and operative paragraphç : WRITTEN STATEJIENT OF THE U.S.A. II7
"With a view to expediting the conclusion of ttiese agreements
and the establishment of the Trusteeship Council, the Preparatory
Commission recommendecl tliat tlie General Asçembly should cal1
on those Members of the United Nations which are now adminis-
tering territories held undcr mandate to undertake practical steps,
in concert with the other States directly concerned, for the im-
plementation of Article 79 of the Charter.
Without waiting for the recommendation of the Preparatory
Conimission to be considered by the General .4ssembly, the AIern-
bers of the United Nations administering territories held under
mandate took the initiative in making declaratioiis in regard to
thcse territories.
With respect to Chapters XII and XII1 O/ the Charter, the
General Assembly :
(3) iVelcomes the declnrations, made by certain States admin-
istering territoriesnow hetd under mandate, of an intention to
negotiate trusteeship agreements in respect of some of these
territorie....
(4) Invites the States administering territories noïv held under
mandate to undertake practical steps, in concert with the other
States directly conccrned, for the imylementntiori of Article 5.9
of tfie Charter (which provides for the coi~cIusion of agreements
on the terms of trusteeship for each territory to be placed under
the trusteeship system), in order to 'submit these agreements for
approval, preferably not later than during the second part of the
First Session of the General Assembly."
Tlie terms of this resolution show a clear understanding on the
part of the Ge~ieral Assembly that the provisions of Chapter XII
werc applicable to mandatcd territories.
At the second part of its First Session, the General Assembly
on December 14, 1946, adopted Resolution 65 (11,which contained
the following provisions :
" TlzeGeneral AssentbIy....
Recalling that the Charter of the United Sations provides in
Articles 77 and 79 tliat the trusteeship system shall apply to
territories now under mandate as may be subsecluentiy agreed ;
Relerring to the Resolution of the General Assembly of 9 Febru-
ary, 1946, inviting the placjng of mandated territoriesunder
trusteeship....
Therefore, the Ge/aevaEAssembly ....
Recomnset~dstliat the rnandated Territory of South-\\'est Africa
be placed under the international trusteeship system and invites
the Government of the Union of South Africa to propose for the
consideration of the General Assembly a trusteeship agreement
for the aforesaid Territnry."118 \VRIïTES ST.STEJIEST OF THE U.S.A.
These provisions of the General AssembIy'ç Resolution of Decem-
ber 14, 1946, iiidicate a clenr understanding that the provisions
of Chapter of the Charter are applicable to mandated terri-
tories and, i11particular, to the Territory of South-IVest Africa.
-4t its Second Session, the General Assembly adopted on Novem-
ber 1, 1947, Kesolution 141 (II), which provided in part as follows :
" Wlzeveas,in its Resolutio~idated g February, 1946, the General
Assembly invited al1 States administering territories then under
mandate to siibmit trusteeship agreements for approval ;
IVlaereas,iiits Kesolution dated 14nece~nber, 1946,the General
-4ssemblyrccommended, for reasons given therein, that the mari-
chted Territory of South-\\'est Africa be placedunder the inter-
national trusteeship system and invited the Government of the
Uniori of South Africa to propose, for the consideration of the
General Assernbly, a tmsteesliip agreement for the aforesaid
Territory ;
Wkereas the Government of the Uniori of South Africa has not
carried out the aforesaid recommendations of the United Nations ;
pi.eviously held under mandate haveStates placed tliese territories
under the trusteeship system or offered thcm independence....
The Gerzera1Assembly, thereiore ...
Firrnly mairitnizzsits recommendation that South-IVest Africa
be ptaced under the trusteeship systcm ;
Urgcs the Government of the Union of South Africa to propose
for the consideration of the General Assembly a trusteeship
agreement for the Territos. of South-1frest Africa and expresses
the hope tliat the Union Government may find it possible to do so
in time to enable the General AssemMy to consider the agreement
at its Third Session ...."
Thus, again in this resolution, the General Assemblj~ indicated
its linderstanding of the applicability of Chaptcr XII to rnandated
territorics, including South-West Africa.
The above rcsolution, as recomrncnded to the Gcneral Assembly
by the Fo~ir.{hCornmittee, contained an additional paragraph of
preamble which read as follows :
"IVhercas i: is the clear intention of Chapter XII of the Charter
of the United Nations that al1 territoriespreviously held under
mandate shall, until granted self-government or independence,
be brought under the international trusteeship system."
This additional paragraph was dropped from the resolution during
the consideration by the Plenary Session of the Assembly. See
U.N. A/P.V. Iûj (2nd sess., plenary, 1947) ,52. Deletion of the
paragraph was proposed by the reprcsentative of Denmark. He
stated that in the Fourth Committee a number of delegations
had expressed their apprehension that this paragraph irnplied IVRITTES STATElIEST 01: TH15 U.S.A. II9
the existence of a legal obligation oii the mandatory Powers to
submit to the General hssembly a trusteeship agreement for nli
mandated territories except those which had been granteci self-
governrnent or independence. The reprcsentative of Denmark
expresscd his fcsr that the resolution as a whole might not obtain
a two-thirds rnajority ifthe paragraph in question wera retained.
At early sessions of the General Assc~nbly, a number of dele-
gatioi~s made statements indicatiiig their clear understanding
that the provisions of Chapter XI1 of the Charter are applicable
to mandated territories. Some deIegations made explicit state-
ments to the effect that conversion of mandates into trust territories
\vas the normal course co~itemplatcd by the Charter. For example,
the officia1 records of the General Assembly give the folloiving
account of a staternent made by the rcpresentative of the Netlier-
lands at the first part of the First Session :
"Aithough Article 77 of tlieChnrtcr dicl notmake tlie transfer
of territorieunder mandate to the trusteeship system absotiitely
obligatory, the sense of Chapter-XII and .of the discussions in
San Francisco clearly indicated that the normal course was for
such territories to corne undcr the trusteeship system. The only
possible exception to thiswould be a situation wherein a triistee-
ship agreement failedof consummation. This, liowever, clidnot
depend upon the arbitrary -111,of tlie ~nandatory I'ower." U.X.
Oficial Records, General Assémbly (1st sess., 1st part, Fourth
Cornmittee, 19461,Ir.
Similar statcments were made in the following year by the repre-
sentatives of France and Iraq. See U.N. OficiaE Records, Gcneral
Assembly (2nd sess., Fourth Cornmittee, 1g47), 12 ; U.N. A1P.V.
Ioj (2nd sesç., plenary, 1947)~ 127-130.
The principal issue concerning the manner in which the provi-
sions of Chapter XII of the Charter are to be applied to mandated
territories is whether placing of mandates under trusteeship is
compulsory or not. In other words, did the Milembersof the
* United Nations administering mandated territories uridertake
in the Charter unconditionally to place the mandated territories
under the international trusteeship system of the United Nations ?
It seems clear that the placing of inandated territories tinder
trusteeship is not made compulsory ky Chapter XII. The States
administering mandated territories are not required to accept
whatever terms of trristeeship might be agreed upon by the appro-
priate United Nations organ, ilor are they required to submit
terrns of trusteeship for mandated territories to a United Nations
organ, thus giving the United Nations the power to approve such
terrns and place mandated territories under trusteeship.120 WRITTEX STATEMENT OF THE U.S.A.
I. Provisions of the Charter
Article 77 provides in paragraph r that : "The trusteeship
system shall apply to such territories in the follovving categories
as may be pIaced thereunder by means of trusteeship agreements."
Paragraph z of the same article provides : "It wilI be a matter
for subsequent agreement as to which territorieç in the foregoing
categories will be brought under the trusteeship system and uyon
what terms." These provisions indicate that a mandatory Power
is not obligated to place a mandsted territory under the inter-
national trusteeship system, and that it is not rcquired to submit
a trusteeship agreement for the approval of the appropriate United
Nations organ. In defining the categories of territories nlhich
may be placed under trusteeship, Article 77 reads as follows :
"(a) territories now held under mandate ;
(b) territories which may be detached from enemy States as
a result of the Second Worlcl War ; and
(c)territories voluntarily placed under the system by States
responsible for their administration."
It will be noted that the ~vordr'voluntarily" is used in Article 77
only with respect to category (c) and is not used with respect to
categories (a) and (b). From this it rnight be argued that the .
placing of territories under trusteeship is compulsory with respect
to territories in categories (a) and (b), and is optional only with
respect to territories in category (c). However, this interpretation
baçed on the appearance of the word "voluntarily" in (c) alone
is not sustained by a coi~sideration of the provisions of Article 77
as a whole. The provisions of paragraph 2 of Article 77 are ~iot
limited in their operation to territories in category (c) but apply
tvith respect to territorieç in al1 three categories. Likewise the
word "rnay" in Article 77 (1) applies to a11 three.
Quite apart from the question whether the Charter makes
the conversion of mandates into trust territories compulsory aiid
requires the mandatory Pomers at least to submit draft trusteeship
agreements for the consideration of the United Xations, the
Charter establishes that the agreement of the maiidatory Potver
is necessary to any terms of trusteeship which may be proposed .
for a mandated territory. Thus, Article 79 provides :
"The terms oftriisteesliip feach territory to beplacet!under the
trusteeship system, incliidingany alteration or amendment, shall be
clatory Power in the case of territories held under mandate byman-a
Member of the United Nations, and shaii be approvet-lasprovided
for in Articles83 and 85."
2, History of the Cltnrter provisions
If the provisions of Chapter XII left any doubt as to the non-
compulsory character of the placing of mandated territories under WRITTEN STATEMEXT OF THE U.S.A. 121
trusteeship, those doubts are dis~ielled by an examination of the
history of Chapter XII at San Früncisco. At the forirth meeting of
Committee 1114,the United States representative "pointed out that
this Government did iiot seek to change the relations existing be-
tween a mandatorp and a mandatcd territory withoiit the for-
mer's consent, and it supported tlie principle of voluntacy submis-
sion of territories to the system". See U.K.C.I.0. Doc. 310 (May Ij,
1945 1)2.
At the eighth meeting of Committee Iljq, the representative of
Egypt proposcd an amendment to the proposal which later became
Article 77. This amendment would have resulted in Article 77
reading as follows :
"The trusteeship s-stem shallapply to :
(a) al1 territories now lield under mandate;
(fi )rritories which may be detached from eneniy States as a
resuIt of the Second Iliorld !Var;
(c)territories voluntarily ~ilaced under the system by States
responsible for their administration." See U.N.C.I.O. Doc. 512
(May 23, ~gci),1.
Objection was taken to the proposed amendment on the ground
that it would have the effect of creating a compulsory system. The
amendment was defeated. See id., at 2.
At the iiinth meeting of Committec II/4,the United States pro-
posed inclusion iiithe provision, which later became Article 79, of
the phrase "including the mandatory Power in the case of territories
hcld under mandate by one of the United Nations....". This amend-
ment, making clear that the agreement of the mandatory Power
\vas requisite to placing a mandated territory under trusteeship,
was adopted unanimously by the Committee. See U.N.C.I.O. Doc.
552 (31ay 24, 19451, 2.
Subsequently, the representative of Egypt proposed in Corn-
mittee 1114that provisions embodying the following principles be
included in the chapter on trusteeship :
"That in al1trust territories, within its cornpetence, the General
ship, and decIare the territory to be fit for full independence,either
at the instance of the administering authority, or on the recom-
mendation of any Member of the Assembly.
That whenever there is any violationof the terms of the trustee-
administering Power has ceased tosterbe aahlembery,of theeUnited
Nations, orhas been suspended from membership, the Organization
shall take the necessary steps for the transfer of tlie territory
under trustceship to another atlministering authority ...."
Against this proposal, it was urgcd "that a provision for the ter-
mination or transfer of a trusteeship without the consent of the122 \VRITTES STATE3IENT OF THE U.S.A.
trustee Potver \vould be contrary tothe voluntary basis upon which
the trusteeship proposals had been built". See U.N.C.I.O. Doc. 1018
(June 76, ~gqj), 5.The representative of Egypt subsequently with-
drew his proposal.
.The report of the Rapporteur of Committee 1114 to Commis-
sion 11and the report of the Rapporteur of CommissionXIto the ple-
nary sessionofthe San Francisco Conference did not consider specific-
ally the (luestion whether the placing of mandated territories under
the trustecship system was to be compulsory or optional. These
reports, which in part paraphrased the laiiguage of the provisions
which were to become Chapter XII, containecl no statements to
indicate that the conversion of mandaies to trust territories iras
to be compulsory. See U.N.C.I.O. Docs. 1115 (Jline 20, 1945) ~ ;
1210 (June 27, 1945).
3. G'cjiernl Assembly disczissiotls 1946-1948
During the first threc sessions of the Gciieral Assembly, in dis-
cussions on the question of South-Wcst Africa, there occurred a
considerablc amourit of debate on the issue whcthcr the placing of
South-West Africn as a mandated territory uncler the trusteeship
system was comliulsory or not. The debate on this question was
most extended driring the Second Session of tlie Assernblp, in 1947.
Uuring the first three sessions, reyresentatives of approximately
half of the Jlembcrs of the United Nations espressed views on the
issue. From thesc discussions, it appeared that approximately an
equal number of Member governrnents took positions on each side of
this issue. Repreçeiitatives of the following Governments main-
tained that maildatory Powers were under a legal obligation to place
mandated territories under trusteeship : India ", China 12,
U.S.S.R. 13, B yelorussia 14, Poland 16, Philippines le, Guatemala 17,
" Sec U.X. Oflicial Records. General Assembly (1st sess., 1st part,Fourth
Committcc, 1946). 27; sarnc (2nd sess., Fourth Committee, 1947), 4.
12 See U.X. Oficinl Rccouds, General Assembly (1st sess.. 2nd part, Fourth
Committee, Sub-Cornmittee 2, 1946).5r ; same (and sess.. Fourth Committee,
1947). 6; same (3rd sess., Fourth Committee. 1948).296, 299.
la See U.S. Official Records. General Assembly (1st sess.. 2nd part,Fourth
Cornmittee, Sub-Cornmittee 2. 1946), 55; same (2nd sess.. Fourth Committec,
1947). 9; U.S. A1D.V. 105 (2nd sess., plenary, 1957). :6U.S. Official Records,
General rlssembly (3rd sess, Fourth Committee. igqS), 338. 348.
14 See U.S. Oficinl Records. General Assembly (1st stss.2nd part, Fourth
Committc?e, 1946)~ 107; same (2nd sess., Fourth Committee, 1957). 64.
15 See U.S. OfIlcial Reco~ds, Ceneral Xsscmbly (2ndsess., Fourth Committee,
1947). 6 ;U.S. ri1P.V.105 (2nd sess., plenary, rg+7)ioG ;U.N. Ofjicial Records.
General Asscmbly (3rd sess., FourthComrnittcc, 1948)~330.
le SCC U.N. OficialRecords, General Assembly (2nd sess.Fourth Committee,
'94719 7.
l7See U.N. Oficiirl Recouds.General Assemtily (2nd sess., Fourth Committec,
19471,8, 63. WRITTES STATEAIEST OF THE U.S.A. I23
Uruguay le, Colombia 19, Syria eO, Waiti "', and Brazil
Representatives of a number of ather countries exprcssed the
vieur that the Charter did not impose a legal obligation upon man-
datory Powcrs to place mandatcd territories under the trusteeship
system of the United Nations : Unitcd ICingdorn 23,Netherlands 2-',
United States 25, Cuba 26, Australia e7, Union of South Africa 28,
Denmark 29, France 30, Greece Sew Zealand 32, Uelgium ",
Canada 35 Bolivia =, and Iraq 3'.
It was arguccl iii favour of the existence of a legal obligation that
in the absence of such an obligation no mandatory Powers might
place mandated territories under the trusteeship system, and that
in consequencc the Trusteeship Couiicilcould not be formed and the
trusteeship system could therefore not be placed in fidl operation.
la See U.N. Oflicini Records, General ilssernbly (2nd sess., Fourth Cornmittee,
1947). 14 ;U.N. A1P.V. 105 (and sess., plenary. rg47), 102.
l9 See U.N. Oficial Records, General Assembly (2nd ses., Fourth Committee,
1947)v 14.
See U.X. Oficial Records, General Assembly (2nd sess., FourtliCornmittee,
1947). 94 ;U.N. A/P.V. 105 (2ndsess., plenary, 1047). 111.
21 Sec U.N. A1Y.V. 105 (2nd sess., plenary, 1947). 76.
'2See U.N. Oficinl Records, Gcncral Assernbly (3rd sess.. Fourth Committee,
1948)o 319.
z3 See U.N. Ofictul Records, General Assembly (1st sess..1st part, Fourth Corn-
mittee, rgq6), IO ; same (rst sess., 2nd part. Fourth Cornmittee, rgqG), roo ; same
(2nd scss., Fourth Committcc, rg47), 14 ; same (3rd sess., Fourth Cornmittee,
1948)~ 29s.
24See U.S. Oficial Records, Generat AssembIy (1st sess., 1st part, Ftrurth Com-
mittee, 1946). 1i ;same (2nd sess., Fourth Committee, 1947)~8, $2 ; U.N. t\/P.V.
105(2nd sess., plcnary, 1947), 62-65.
25Sce U.X. Ofliciril Records, Genernl Asscrnbly .(rst sess., 2nd part. Fourth
Committee, .Sub-Committee 2, 1g4G), 49 :same (2nd sess,. Fourth Cornmittee,
1947). 5. 50.
See U.N. Oficial Records. Gcneral Assembly (1st sess.,2nd part. Fourth
Cornmittee, Sub-Committee 2, 1946). gr.
'7See U.S. Official Records, Gcneral .Assembly (1st sess., 2nd part, Fourih
Committee, Sub-Committee 2, 1946), 62 ;same (2nd sess., Fourth Committee,
1947). 58 ; U.X. A/P.V. 104 (2ndsess., plcnary, 1947), 76-
See U.N. O#icial Records, General Asscmbly (1st sess.,2nd part. Fourth
Cornmittee, 1946)~ 52 ; same (1st sess., ancl part, Fourth Committee, rg4G), 239 ;
same (2nd sess., l'ourth Comrnittee, 1947). 4, 15 ; U.N. rl1P.V. 105 (~rid sess.,
plenary, 1947), 17G ; U.N. A/P.S7. r64 (3rd scss., plenary, 1948). -7.
2D See U.B. Ofiicinl Records, General Asscmbly (2nd sesa., Fourth Cornmittee,
19471, 8, 47.
See U.X. Officia1 Records, General AsseinbIy (2nd sesç., Fourth Committee,
'947). 1'. 53.
See U.X. Oficial Records, Geiieral Assembly (2nd sess., Fourth Cornmittee,
19471, 14 ; same (3rd scss., Fourth Committee, 1948). 320.
see U.K. OfjiCid Nccords, General Assembly (2nd sesS., Fourth Committee,
1947). 17.
35 Sec U.K. Oficial Records, General Asscmbly (and sesç., Fourth Committee,
I947), I7 ; snme (3rd sess.,Fourth Committcc. r948), 325.
a4 Sce U.N. Oficial Records, Gcneral ~isscmbly (2nd sess., Fourth Committee,
1947). 56.
35 See U.N. Oflicial Records, General ilssernbly (2ndsess., Fourth Committee,
1ri473. 61.
a* See U.X. A/P.V. 105 (and sess.. plenary, 1947)~ 131.124 WRITTEN STATEMENT OF THE U.S.A
On the other hand, it u7asargued that the Charter could not be
thought to rcquirc that al1 territories detached from enemy States
as a rcsult of the Second World War mztstbe placed under tnistee-
ship-a result which ~vouldseem to be unavoidable if the placing of
mandated territories under trustceship mere compulsory. These
debates during the first three sessions of the General Assembly
disclosed a division of opinioii on thc issue urhether trusteeship was
comyiilsory for the rnandated territories. No definite conclusio~i\vas
reached. However, it has already been observed that at the Second
Session a paragraph of preamble was deleted from a proposed resolu-
tion on the South-West Africa question on the ground thatit seemed
to many Members to imply that there was a legai obligation under
the Charter to place mandatcd territories uiider the international
trusteeship system of the United Nations.
111. APPLICABXL OIFYTHE PROVISIOXS OF CHAPTER OF THE
UNITED x.4~10~~ CHARTE TO SOUTH-WEST AFRICA
A. By Tenson of the contittziiitg existence of the mandnle, Soztth-West
Afvica is a non-self-governing territory withilz the meaning oj
Chafiter XI
I. Nntztreof themandate
Article22 of the Covenaiit of the League referred to certain
territories formerly under German sovereignty-including South-
West Africa-as territories "inhabited bypeoples not yet able to
stand by thernselves under the strenuous conditions of the modern
world". In pursuance of this provision, South-West Africa was
placedunder the tutelage of the Union of South Africa, within the
mandate system. Indeed the Territory was made a class C Mandate
(see the sixth paragraph of Article zz), since its stage of develop-
ment toward self-government or independence was considered not
far advanced. There is nothing to siiggest that this status has altered
so radically in thirty years that South-West Africa no longer
requires tutelage.Indeed, the Union Government's proposa1 for
incorporation of the Territory (discussed in 1,B, above) clearIy
shows that in the mandatory's judgment South-\l'est Africa is not
yet able to stand by itself.
2. United Nations Chartev
(a) Tcrms of Article 73
The scope of application of ChapterXI is set forth in Artic73
of the Charter, which reads :
"Rlembersof the United Nations which have or assume respon-
çibilities for the administration of territories whose peoples have
not yet attained afullnleasure of self-government recognize the
priiicipthat theinterests of the inhabitaofthese territoriare iVRITTE?; STATI43tEFT OF THE U.S.A. 125
paramount, and accept as :L sacred trust the obligation to promote
to the utrnost, ivithin the systeni of interiiational peace and security
estahlislicdby the present Charter, the well-being of the inhabitants
of thesc territories, and, to this end :
(a) to erisure, with due respect for the culture of the peoples con-
cerned, their political,economic, social, and educational advance-
ment, their juçt trentment, and their protection against abuses ;
(O) to develop self-government. to take due account of the polit-
icalaspirations of the pcoples, and to assist them in the progressive
developmeiit of thcir frec political institutions, according to the
particular circumstrinces of encli territory and its pcoples and their
varyiiig stages of advancement ;
(c) to further international peace and security ;
(d) to promote constructive measures of development, to encou-
rage research, and ta CO-operateivith one r~nother and, when anci
where appropriate, with specialized international bodies with a
view to tlic practical achievement of the social, economic, and
scicntificpurposes set forth in tliis articlancl;
(el to transmit regularly to the Secretary-General for information
purposes, subject to such limitation as çecurity and constitutional
consideratioris may require, statistical and otlier information of a
technical nature relating to cconomic, social, and educational con-
ditions in the territories for which theyare respectively responsible
other thati those territories to which Chapters XII and XII1 apply."
Since South-West Africa is a mandated territory whose people
cannot stand by thernselvcs and whose administration has thereforc
beeii allocatcd to a mandatory which continues to administer thc
mandate, the mandated tetritory would secm to be, ipso facto, a
territory "\ïrhose peoples have not yet attained a fi111measurc of
self-government".
(b) Terms of Article 77
~rtile 77,discussed in dctail iiiPart II above, provides thst the
trusteeship system is applicable, ider alia, to "territories now held
under mandatc". Territories rcferred to in Chnpter XII werc
intended to fa11also within the scope of Chapter XI, as is demori-
strated by the careful exception in Article 73 (e) to the obligation
to transmit information thercuiider \vhere Chapters XII and XII1
"apply", in ordcr to avoid duplication of reporting.
(c) History of Chapter XI
At San Francisco, in 1945, while participating in the work of
drafting the Charter, Field Marshal Smuts, President of Commis-
sion II, made it clear thai Chapter XI was intended to apply to
mandates :
" A [designation of proposa1 ~vhichbecame chapter XI] applies
the trustee principle to al1dependent territories, whether they are
mandates, whether thev are territories taken fromdefeated countries,
or whether they are esisting colonies of Poir.ers.The whole field of
dependent peoples living in dependent territories is now covered."
III26 WRITTES STATEJIEXT OF THE u.s..~.
Similarly, the report of the Rapporteiir of Committee 1114,which
drafted Chapter XI at San Francisco, recomrnended that the pro-
posal, which later became Chapter XI, be a declaration by States
Members of the United Nations responsible for the administration
of territories whose peoples have not yet attained a full measure of
sclf-government. The report flatly stated :"This declaration would
be applicable to al1 such territories." SeeIO, U.N.C.I.O. Docs. 608.
(d) Subsequent General Assembly discussio~is
Field AIarshal Smuts told the Fourth Cornmittee in 1946that the
Union of South Africa"would, in accordance with Article 73, para-
graph (e), of the Charter, transmit regularly to the Secretary-
General" information on South-West Africa. See U.K. Oficial
Records,General Assemblÿ (1st sess., 2nd part, Fourth Cornmittee,
Part 1, 1946), 101-102.
Dr. Evatt, of Australia, addressing the General Asscmbly on
Kovember I, 1947, said :
"....We have put into the Charter a spccial chapter dealing with
rion-self-governingterritories, 'Thiswas in orclerto meet the position
under the trusteeship system-aed tterritory like South-West Africa.
\Vhen one looks at Chapter X1 and, more pacticularly, at the
declarations contained in it regarding non-self-governing territories,
one willsec thatnon-self-governingterritories are very analogous to
tliose included under the trusteeship system itself. Therefore, there
isno gap in theCharter of the United Nations. If the Union of South
Africa does notbring its territory under tlie trusteeship system, it is
still, in my viewa non-self-governing territory. The Union Goverri-
ment will have to give, voluntarily, reportsfor tlieiiiformation of
the Secretary-General. Tlie Secretary-General can do as he chooses
with this information."See U.N. Oficial Records, General Assembly
(2nd sess., plenary, Vol. 1, 1947)587-588.
B. Obligation to report u,ader Article73 (e)
As noted above, if South-West Africa were placed undei trustec-
ship, the obligation to report under Article 73 (e) would no loriger
apply. It should be further noted that a litcral reading of Art-
icle 73(e)might lead to the conclusion that because Chapter XII is
applicable to any mandate or to any non-self-governing territory
(Article77 (1) (a),(b) and (c))they would al1be territories to which
Chapters XII and XII1 "apply". Such a constniction makes i.io1-i-
çense of the reporting provision, and the final sentence of Article 73
(e)is to be given its natural construction that when such territories
have bceii brought under trusteeship so that the reporting provisions
of Chapter XI1 "apply" so as to reqztirereports, duplicating reports
under Chapter XI are iiot necessary.
Spccific provision is not made respecting duplication of reports 011
manclates. It woufd seern. however, that tliere is nothi~ig in the WRITTES STATEAlEXT OF THE U.S.A. I27
provisions of the Charter to prevent acceptance by the General
Assernbly of reportssuch as a mandatory is requircd to make under
its mandate in satisfactioii of the requirements of Article 73 (e),
providecl only that the Asscmhly is satisfied that the report meets
the minimum substaiitive standard set by Article 73 (e).This
position is consistent Lvith the intention of Chapter XI respecting
reports u~iclerthe trusteeship system of Chapters XII and XIII. It
is alço consistent with the precedent established by the General
Assembly's Resolution Iqr (II), dated November I, 19.47 r,ferring
the report for 1946 on South-West Africa to the Trusteeship Coun-
cil, and with the fact that the General Assernbly didnot requestthe
Union Government to report scparately and additionally for the
purposes of Articlc 73 (e).
IV. COMPETESCE TO >101i11:'H'E ISTERX.4TIOSAL STATUS OF THE
TERHITOR YF SOUTH-\VESA TFRICA
In the question submitted tothe Court by the General Assembly,
the following particular inquiry ismade :
"(c)Has the Union of South Africa the competence to modify
the international statusof the Territory of South-IVest Africa,
or,in the event of a negative reply, where does competence rest
todetermine and modify the international status of the tenitor?"
Zn Part 1of the present statement, the view is expressed that the
mandate for South-IlTest Africa continues in force at the present
time. In Part III above, the vietv is expressed that, w-hilethe man-
date continues, South-West Africa reniains a non-self-governing
territory within the meanirig of Chapter XI of the Charter. In view
of these conclusions, it is suhmitted that the question of competence
to inodify the internatio~ial status of the Territory of South-West
Africa is csseniially a question of competence to modify the
mrtnclate.
The provisions of Chapter XII in the Charter make quite clear
that mandated territories, including South-West Africa, can be
placed under the interiiational trusteeship system of the United
Nations. This is probably the clearest way in which the mandate
may be modified. In vietr.of the discussion contained in Part II
above, it is not believed necessary to present further discussion here
or1this point.
13. 7'IzeUnioti.oj Sozitlt A/ricdoes ?lofhave com$elence tinilaterally
fa~nadify the iifatzdafe
In part (c)of the General Assembly's question, it is asked specifi-
cally whether the Union of South Africa has "the competence to
inodify the internatio/al status of the Territory of South-WestI28 WRITTES STATEMEST OF THE U.S.A.
Africa". Presurnably the qiiestion is uhether the Union may effect
siich modification unilaterally. [t is the view of the Government of
the United States that the Uniori is ~iotcompete~it to briiig about
modifications unilaterally.
I. Terjns of the Maizdafe
Article 7 of the Maildate for South-West Africa provides, in part :
"The consent of the Couricilof the Lcague of Nations is requireil for
Anymodification of the terms of the present Mandate." It was thus
made clear, when the League Couilcilapprovcd the terms of Mandate
in 1920, that any modification of those terms would require the
Council's consent. Termination of the Mandate altogether may be
regarded as the extreme form which modification might take. During
the life of the League, the consent of the Council would obviously
have been required for any modification in the Mandate's terms and
for ending the Mandate entirdy. Sirice the League of Xations is rio
longer in existence, it is evident that the Lcague Council's conscrit
could not be obtained for a modification or termination of the
Mandate for South-\\?est Alrica. It must thcn be asked (a) whether
the rnaridatory Power has acquired full freedom of modification or
tcrmination on the League's demise, or (6)whether modification and
termination have no\v become impossible. In the view of the United
States, neither of these consequences follo~vs.As has been pointecl
out in 1, C, 2, above, and as this statcment will attempt to show in
IV, C, below, the United Nations is capable under certain circum-
stances of assuming thc cxcrcise of important functions of the
Ideagile of Nations in relation to the mandate system.
2. Locatio?~ of sovereig~ltyover Solith-West Africa
It might be argued with much persuasiveness that the Union of
South Africa had the competcnce to modify the &[andate for South-
\l'est Africa if the Uiiion heId sovercignty over the latter territory.
It aypears to be established, ho~vever,that the Union does not have
sovereignty over South-IiTest Africa 37.This \vas the position taken
by the Permanent Mandates Commission of the League of Nations,
adopted by the League Council, and later accepted by the Govern-
ment of the Union of South Africa. See League of Nations Ogicial
JozlniaE, Council (44th sess., 1927)~ 426 (report of the Permanent
Rlandates Commission) ; samc (56th sess., 1g2g), 1467-1468, 1472
(report of the Commission) ;same (60th sess., 19301,1303(report of
the Commission).
It is interestiiig to note that Prime Minister Fraser, of New
Scaland, made the following statcment before Commission II at the
San Francisco Confercnce, when the Commission \vas considering
57 Whatever the authority enjoyed by a manclatory Power for purpoofinter-
na1administration ofthe rnandated territory. the mcasurc of this authis not
tory. Cf. Rexv. Chvistian[1924]S,. Afr. L.R.Iari(App. Div.).ard tothe terri- \YHlTYEX STATEllEST OP THE U.S.A. 129
the report of the Trustecship Cornmittee, of which >Ir. Fraser had
been Chairman :
"Rut whatever difficulties there are, tlic rule that we will be
guided by-1 know 1 speak for rny own coiintry, but I fecl 1
syeak also for every country in a similar positioii-is that we
have accepted a mandate as risaci-ed trust, riotas part of'our
sovereign territory. 'The mandate does not bclong to my country
or aIiy other couritry. lt is lield in trust Corthe world."
3Ir. Fraser \vas the last speaker before tlic Commission on the
report of Committee 1114 ; iolloirliiig his statcrncnthe President of
the Commission, Field Jlarshal Smuts, of the Union of South Africa,
declared that the Corninittee's report was adopted urianimously.
U.N.C.[.O. DOCS. II44 (Jurie 21, 1945) ;1208 (JUIIC 27, 1945).
Early in 1946, some of the mandatory Z'owers made declarations
of an intention to iiegotjate trusteeship agreements for some of the
mandatcd territorics. Thc Union of Soiith Africa diclnot make such
a cieclaration, and its reprèsentative was clucstioricd in this regard
at the first part of the First Session of the Unitcd Nations Geiiera.1
Asçembly. ln responsc, the represeritative of the Union of South .
Africa spokc as follo~vs :
"Referring to the test of Article 77, hc said that uncler the
Clialter tlic trarisfer of the mandates regime to the trusteeshiy
systern !vasnot obligatory. According to ~iaragrapli I of Article 50,
no rights woiilrl be nltercd until individual trusteediip agreements
were conclu[lecl. It kvas wrong to assume tliat yaragraph 2 of
this article invalidated paragraph r. Tlie position of the Union
of Sonth Africn was in conformity witll tliis legnl interpretation.
He explninecl the special relationship betweeri the Union ancl
the territory uiiclcr its mandate, referririg to the advanccd stage
of self-govcrnmcnt ei~joyecl by Soiitli-\Vest Africn, and com-
mentirlg on thc rcsolution of the Legislaturc of South-\l'est hfrica
calling for rimnlgamation with the Union. 'I'liere wouid be no
attempt to draw up an agreement until tlic frcely exprcssed will
of both the Europeaii and native populations Iind beeii ascertained.
iVhen that liacl been done, the decision of the Uriion would be
submitted to the General Assen~bly for judgmeiit." See U.N.
Oficinl Kecorils.Gerieral Assembly (1st sess,, 1st part, Fourth
Committee, r946), IO.
The represeiilativc of New Zealand stated tliat hc
"was grntified tliat n great deat of arnbiguity liad been removed
by hlr. Nicliolls' rcmarkç. He askecl wlictltcr lie was rigllt iii
understnnrlinç tlixt, aftcr ascertainiiig tlie wilof tliinative and
Europcan popul:itions, the Uriioii of Soutli i'ifi'ica would lay the
whole matter before the General Assen~bly.
&Ir. Niciiolls (Union of South i'ifrica) replictl tliat liis Govern-
ment \vas tnking steps to ascertain the wishes of the populations 130 WRITTEN STATEMENT OF THE U.S.A.
of the territory under mandate. It would thcn reach a decision,
and submit the decision to the General Assembly." See id., at II.
The Assembly of the League of Nations held its last session at
Geneva in April, 1946.Various delegates included comments onthe
mandates question in their main speeches before the Assembly. The
repfesentative of the .Union of South ilfricadevoted the greater
part of his speech to this question. In it he said :
"It is the intention of the Union Government, at the forth-
coming session of the United Nations General Assembly in New
York, to formulate its case for according South-West Africa a
status under which it would be internationallp recognized as an
integral part of the Union. As the Assembly will know, it is
already administered under the terms of the Mandate as an
integral part of the Union. In the meantime, the Union will con-
tinue to administer the Territory scrupulously in accordance with
the obligations of the Mandate, for the advancement and promo-
tion of the interests of the inhabitants, as she has done during
. the yast six years when meetings of the Mandates Commission
could not be held.
The disappearance of those organs of the League concerned
with the supervision of mandates, primarily the Mandates Com-
mission and the teague Council, will necessarily preclude complete
compliance with the letter of the Mandate. The Union Government
will, nevertheless, regard the dissolution of the League as in no
way diminishing their obligations under the Mandate, which
they will contiiiue to discharge with the full and propér appre-
ciation of their responsibilities until such time as other arran-
gements are agreed upon concerning the future status of the
Territory." See League of Nations Oflcial Joztrnal, Assembly
(zrst sess., plenary, 1946) ,2-33.
At tliis closing session of the Assembly, the foIlowing resolution
'was adopted on the subject of mandates:
"The Assembly,
Recalling that Article 22 of the Covenant applies to certain
territoriesplaced under mandate the principle that the wcll-
being and development of peoples not yet able to stand alone
in the strenuous conditions of the modern world forrn a sacred
trust of civiIization:
I. Expresses its satisfaction with the manner in urhich 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 Com-
mission ;
2. Recalls the role of the League in assisting Iraq to progress
from its status under an 'A' Mandate to a condition of complete
independence, welcomes the 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 ; IVRITTES ,STrlTEJlEST OF THE U.S.A. I3I
existence, its functions with respect to the mandated territoriese's
wiil corne to an end, but notes that Chapters XI, XII and XII1
of the Charter of the United Nations embody principles correspond-
ing to tliose declaredin Article 22 of the Covenant of the League ;
4. Takes note of the expressecl intentions of the Members of
the 1-eague now administering territories under mandate to
continue to administer them for the well-being and development
of tlie people5 concerned in accordance with the obligations
contained in the respective mandates, rintil other arrangements
have been agreed between the United Nations and the respective
mandatory Powers." See id.,at 278.
At the second part of the First Session of the United Nations
General Asscmbly, the Union of South Africa transmitted to the
Assembly a "Statement on the outcorne of their consultations
with the peoples of South-$l'est Africa as to the future status of
the mandated tcrritory and implementation to be given to the
wishes thus expressed". See 1J.N. OficiaE Records, General
Assembly (1st sess.,2nd part, Fourth Comrnittee, Part'I, 19461,
199 (Annex 13).In the discussion of this agenda item in the
Fourth Committee, Field hlarshal Smiits, representing the Union
of South Africa, proposed the formal incorporation of the Territory
of South-West Africa ivith the Union. After report bp a sub-
cornmittee, there was further debate in the Fourth Committee,
which recommended a resoIution to the plenary session. The
resolution adopted by the GeneraI Assembly read as foIlaws :
"The GerievalAssenibby,
Nuciiig considererl the state~nents of the delegatiori of tlie
Union of South Africa regarding the question of incorporating
the mandated Territory of South-\tTest Africa in tlie Union ;
Notiizg with satisfactio~.hat the Union of South Africa, by
prese~tirig this matter to the United Nations, recognizes the
future status of territorienownihelclunder mandatehe ;atter of the
RecalEingthat the Charter of the United Nations provides in
Articles 77 and 79 that the trusteesliip system shall apply to
territories now under mandate as may be subsequently agreed ;
Re/er~ing to the Resokution of the General Assembly of
9 February, 1946, inviting the placing of mandated territories
uridcr trusteeship;
Desiring that agreement hetweeii the United Nations and the
Uiiion of South Africa maj7 hereafter be reached regarding the
future status of the mandated Territory of South-\STestAfrica ;
Assitred 6y the Delegatiori of the Union of South Africa that,
tonadminister the Territory as heretofore in the spirit of the
yrinciples laicl down in the hIandate ;132 IVRITTES STATEJIEST OP THE U.S.A.
Co~rsideriwg that the African inhabitants of Soiitli-\\'est Africa
Iiave ~iot yet secured political autonomy or reacliccl a stage of
political developrnerit eiiabling them to cxpress a considered
qi~estioii as ir-icorjiorritionof ttieir territo;yiicli riilimportant
Therelaye, the Gertev~rAl sseml>Ey,
1s linable fo accecle to the incorporation of the 'l'erritory of
South-iIrest tSfrica in the Union of South Africa ; arlrl
Recommeilds ttint the rnandrtted territory of South-\\:est Africa
be placed under the internatioiial trusteeship systern alid invites
the Goveriiment of the Unioii of South Africa to propose for the
consideration of tlie Cciicrai Assembly a trusteesliip agreement
for the aforesaid territory." Resolutioii 65 (1).
A ycar later, at the Secoiid Session of the General i'isscmbly,
the representative of the Union of South Africa made the follot~~iiig
statements conceriling liis Government's resyonsc to the General
Assembly resolution just quoted :
"Mr. Lawrence (Union of Soutli Africa) recalled ttiat tlie Cencral
Assernbly had found itself unable to accede to his Government's
request for incorporation of South-\!'est Africa iii tlic Union of
South Africa aiid iiad recornmended that a trusteeship agreement
should .be subrnitted. His Government was not proceeding ïvith
its proposal to incorporatc South-\t'est Africa iii tlie Union. To
this degree it was complying with the resolutioii of the General
Assembly ....Although the General Assembly find iiot thought
to take into accoiirit the wislies of the inhabitanis, the Govern-
ment of the Union of South Africa, in dcfcrei~ce to the wishes
of tiie General Assernbly, dici ~iot propose to proceccl with incor-
poration." See U.N. Oficial Records, General Assern bly (2nd sess.,
Fourth Cornmittee, 19471, 3-4.
Following discussions in the Fourth Cornmittee, the General
Assembly at its Second Scssion adopted a resolutio~i oii South-
West Africa which read, in part, as follo\vs :
"51ilzereasthe Governrnent of the Unioii of Soiitli Africa in a
letter of 23 July, 1947, informed tfie United Bations that .it has
decided not to proceed with the incorporatiori of South-1irest
Africa in the Union, but to mairitain the stalzlsqito and to continue
to administer the territory iri the spirit of tlic cxisting mandate,
and that tlie Uriion Govcriirnent has undertriken to subinit reports
on its administratioii for tlie information of thc United N at'ons :
" The General Assembly, therefore,
" Takes mte of tlie clecisioii of tlie Goveriirrieiit of tlie Union
of South Africa riot to proceeci \vith the incorporatior-i of South-
\Vest Africa ...."Kcsolution 141 (II).
'The record thus discloses that as the League of Nations werit
out of esistence its Asseml~ly, including the Uriion of South Africa,
looked forward to subsequent agreement betwceii the mandatory IVRIî'TES STr\TEJIEST OF THE U.S.A. I33
Powcrç and the United Xations conccrning the future of the
~nandated territories. In accordancc with this understanding,
the U~iioiiof South Africa made a proposa1 to the United Nations
Ceneral Assembly, later in 1946, for the incorporation of South-
\Vat Africa into the Union. The General Asseinbly did not
ngree to this proposai. The Governmerit of the Unioii refrained
from going ahead to implerne~it it in tlic abscnce of approval by
thc Gctieral AssembIp. From this record cmcrges persuasive
cvidcncc of n commoii understanding that it wns necessary for the
rn:~nd:itory Power to reach agreement with tlie United Nations
l-ieforc modification or termination of thc South-\Vest Africa hlari-
dntc coiilcl bc cffccted.
Before lenviiig the question of cornpetence bp the Union of
South Africa unilaterally to ~nodifythc South-\\'est Africa Mandate,
it may be useful to considcr the case of certain other mandates,
in which fundamental changes have beeii brought about through
their attaininent of independence, Article 22 of the Covenant of
the League of Kations in the Treaty of \7ersailles looked formard
to ultimatc independence for the msndated territories. For
soinc of these terri tories it envisagcd early inclepende~ice. For
csamplc, the fourth paragraph of Article 22 provideç :
"Certain conimunities formerly belonging to the 'l'urkishEmpire
have reacticd a stage of development wlicte tlicir existence as
inclependent nations can be provisionnlly recognizccl subject to
the renderiiig of administrative :itlvicc aiicl assistance bp a
inniic1:ltoryuntil suchtime as they :ire ahlc to starirl alone. The
wisliesof these communities rniist bc a principal consideration
in tlic selcction of the mandatory."
This paragraph referred to territorics which siibsecluently became
class A hIandatcs. South-\l'est Africü bccnrnc n class C Mandate.
This type of territory was referred to as follo\vs iii thc sisth para-
graph of Article 22 of the League Covcnar-it :
"'I'hereare territories, such as South-\\:est Africa and certain
of thc South Pacific Islands, whjcli, owing to the sparseness of
tlieir population, or thcir small size, or their remotenesç from
tlic centers of civilization, or their geogi-aphical contiguity to
the territory of the mandatory, and other circumstances, can
bc best administered under the laws of tltc maridatory as integral
portions of its territory, subject to the safeguanbovc mentioned
iii the iritcrests othe indigenous popiilation."
Indej-ienc~encenevertheless remained a possible evcntual goal for
thcsc territories which becamc class C Rlaiidates. With respect
to South-West Africa, discussions iri the Geiieral Asseinbly of the
Ijrlitcd Natioiis have indicated that a numl-icr of coiintries have
rcgarded indeyendence as a possible solutioii to the future of134 WRITTES STATEMEST OF THE U.S.A.
Soutli-West Africa. See U.X. Oficial Records, General Assembly
(1st sess., 2nd part, Fourth Committee, Sub-Cornmittee 2, 1946),
49 (statement by representative of United States) ; same (1st sess.,
2nd part, Fourt h Committee, 19461, 89 (statcrnen t by represent-
ative of U.S.S.K.} ; id., at 105 (statement by representative of
Poland) ; id., at 112 (statement by rcpresentative of Syria) ;
same (3rd scss.,1st part, Fourth Cornmittee. 1948), 320(statement
by represcntativc of Bra~il).
The class A Mandates-Iraq, Syria and Lebanon, Transjordan
(now the Washemite Kingdom of the lordan), and Palestine-
have undergone fundamental changes leading to independence.
In the case of Iraq, the termination of the mandate and the creation
of the Kingdom of Iraq aç a separate State were accomplished
with the consent of the appropriate League organs and the adrnis-
sion of Iraq to membership in the Leagiie of Nations. Syria and
Lebanon and Transjordan were granted independence by their
respective mandatories shortly before the end of the League's
existence, at a time when the League was not in active operation.
Nevertheless, the League Assembly in its Resolution of April 18,
1946, weIcomed "the termination of the mandated status of Syria,
the Lebanon, and Transjordan, which have, since the last session
of the Assembly, bccome independcnt members of the world
community ....". Syria and Lebanon had already become hlembers
of the United Nations 38.
In ApriI 1947 the mandatory for Palestine requested the calling
ofa special session of the General Assembly to consider the question
of the future governmen t of Palestine and make recornmendations
concerning it. A special session was held, and a United Nations
Special Cornmittee on Palestine \vas appoiiited by the Assenibly.
This Committee reported to the second regular session of the
Assembly iiithe faIl of 1947, and on the basis of its report the
General Assembly adopted Resolution xog [Il) containing recom-
mendations concerning the future of Palestine. The resolution
recommended the establishment of a Jewish State, an Arab State,
and an internationalized city.of Jerusalem. On hIay 15, 194s. the
State of Isracl came into existence. Subsequeiitly, it was admitted
to membership in the United Nations. Negotiations are still
in progress concerning the definitive arrangements to be made
with respect to jerusalem and the portions of Palestine outside
of IsraeIi territory.
In al1 of these cases there has been more thaii unilateral action
on the part of the mandatory Poiver ~IIterminating the mandate
through the achievernent of independence hy the mandated terri-
tories. In the case of Iraq, the consent of the League Council n-as
gitreii.In the cases of Syna and Lebanon arrd Transjordan, the
88The applicatioof Transjordanfor admission to mernbership in the United
Sations,fotlowing its rejectbynthe Security Council. was endorsby thc
Gencral .4ssemiily. Scc HesolutrIj(II),197(III) and296 (IV). WRITTES STXTEJIEST OF THE U.S.A. I35
League Assembly gave its approval, the League Council not being
in operation at that timc. Again in the case of Palestine, the man-
datory did not act alone, and the termination of the mandate
occurred pursuant to a resolution of the United Natioris General
Assembly 39.
It is submitted, therefore, that the Union of South Africa is not
competent alone ta modify the Mandate for South-West Africa,
whether through the grantirig of independence or other~vise. It is
beliclled that modifications of the mandate, including termination,
require the approval of the appropriate representative body of the
international community.
C. The Mandate forSottth-WestAfrim may bemodzfied by agreenze~zt
beiweew the vznwdatory Power ajtd the Uizited Aralions Geiieral
A ssenibly
As has been shown earlier in this statement, the Union of Soutli
Africa assiimed authority and administration in the Territory of
South-West Africa pursuant ta the Treaty of Versailles, the alloca-
tion made by the Principal Allied and A~sciated Po\vei's,and the
mandate terms approved by the Council of the League of Nations.
Thus the Unioii became atrustee, and e'rercised its powers in South-
West Africa on behalf of the large portion of the international com-
munity which were parties to the Sreaty of Versailles and Members
of the League of h'ations. It has been seen that under the mandate
system modifications of the mandate required the assent of the
international community, to be given through the Council of the
League. In the vietir of the Gol~ernrnent of the United States, the
termination of the League of Nations did not end the intcrest of the
international community in the mandate for South-West Africa
and did not ieave that community without meanç of assertiiig its
interest.
I, General Assembly Kesolz~tion of Febr~~ary 12, 1946
The League of Nations had not yet been brought to ciiend urhen
the General .4ssembly of thc Utiited Nations met for ttie first time
in London in 1946. In anticipation of the demise of the Lcague, the
General Assembly adopted a resolution at the first part of its First
Session making provision for the transfer or possible transfer of
certain functions and activities of the League of Nations. This reso-
lution \vas adopted on thc report of an ad hoc League of Xations
Cornmittee of tlie Asscmbly, appointed to consider the problems
\%?hich\vould arise througli termination of the League. Resolution
SIv-I (1), adopted hy the General Assembly on Fcbruary 12,
1946, provides in part as follows :
"Under various treaties and internatio~ial conventions, agree-
ments and other instruments, the League of Nations and its
JiThe question of thc Generr~Assembly's authorityas a succcssorto the
League of Nationswll bc dealtwith in LirC, beioru.136 Ii'RITTES ÇT.4TE>IEST 01:THE U.S.A.
organç esercise, or may be rcquested to csercise, numerous
functions or powers for the continuance of \vliich, aftcr the disso-
lution of the League, it is, or may be, ctesirable that the United
Nations should provide.
Certain ;\lembers of the United Natioils, wliicfi are parties to
some of these instruments and arc Rlcmbcrs of tlic League of
Nations, liave informed the General Asscmbly tliat, at the forth-
co~niiig scssir>n of the Assembly of ttie 1-cngire, thcy intend to
Inove n reçolution wliereby tlic hlembcrs of t11c League would,
so far as tliis is necessary, assent ancl givc cffect to the steps
coritemplnted below.
Therefore :
x.~'AE Gcneral AssembLy reserves thc riglit to decide, after
due esamiiiation, not to assume any particular function or power,
and to determine which organ of the United Bations or which
specializecl agency brought into relationship with the United
Bations slioulrl esercise each particular fiir-ictionor power assumed.
2. T~IECEI&E~R A~ssernbly records thnt tliose Jlembers of the
Uriited Nritioiis wliich are parties to tlie instruments referrecl to
above assent by this resolution to the steps contcmplated below
and express their resolve to use ilieir goocl offices to secure the
co-operation of thc otlier parties to tlie instriirnents so far as this
inay be i-iecessary.
3. The General Assemtily dcclares thrit the Unitcd Kations is
willing in pririciple, and subject to the provisiotis of this resoliltion
ancl of thc Charter of the United Nations, to assume the exercise
of certain functions and powers previouçly eritrustcd to the League
of Xations, and adopts the following clecisions, set forth in A, B,
and C below.
...A .,. ... ,.. .. . a.. ....
C. I;unclioris.mrd powers 2i.nderIrealies, i~r&errz~itio~ czoa~l~.;enfio~zs,
agrcen~eiztsand olhev irrstrzjnzeiztshaving flolilical character
7'ke Ge~ierctlAssemhly will itseIf esainine, or will submit to
tfie appropriate organ of the United Natioiis, any recluest from
the partics thnt the United Nations çhoulcl rissume the esercise
of functions or powers entrusted to tlie League of Nations by
treaties, iiiternational conventions, agreements and other instru-
ments Iiavirig n political character."
It is beIicirecl that through this resolution the >lembers of the
United Xatioris and the Alembers of the Leaguc who are Jlembers
of the Ur-iiteclKations have agreed that orgalis of thc Uiiited Nations
migtit assume functioiis forinerly exerciçed by League organs under
certain iriternational agreerneiits, and further sgreed that the
General Asçernblp ~vould conçider requcsts from the parties for the
esercise of thcse functions of League orgaiis by organs of the United
Xations. It is believed that in this manner a means \vas provided
for the assumption of thcse League fiiiiciions, with rcspect to man-
dates, hy organç of the United Satioils. Thus, the power of the JVKITTES STATElIEST OF THE U.S.A. l37
Leagiic Coiincil to consent or withhold consent to inodificatioiis of
a rnaiidate could. upon request from the parties, be assumed by the
Unitcd Nations General Assembly or some other Unitecl Xaiions
organ to which the General .4sscrnbly might transfer responsibility.
2. teagite O! Ncrtior~sResollttion of Apvib 18,1946
Ln the Leagiie's final resolution on maiiciatcs (see p. 64 above),
which wns anticipated in Gcneral Açsernbly Rcsolution XIV-1 (1),
the 1,eaguc Asscmbly took note "of the csprcssed iiitentions of the
Mcinbers of the Leaguc now adn~inistering tcrritories under mandate
to continue to administer tkem for the lvell-bcirig and development
of the peoples concerried in accordancc with the obligations con-
tained in the respective mandates, uiitil other arrangements have
becn agrced upon between the United Xations and the respective
mandatory Powcrs". In thiç way, as pointed out earlicr, the League
Assembly looked fori~ard to agreement betweeii the mandatories
ancl the United Xations on the future of the inandates.
3. Proceedirzgsoj the UizifedNations GerteralAssenzbly1946-1948
Ticferencc haç been made earlier to the submission by the Union
of South Africa at the second part of the First Session, concerning
its proposal for incorporation of South-West Africa in the Union.
Keferencc has been made also to the rcsolution üdopted by the
General Assembly following a discussion of this subject, to the
respnnsc of the Union Government, aiid to discussions and resolu-
tions of later sessions of the General Assembly 40.Ztis believed that
thcsc cvents show that the General Assernbly, upon request from
South Africa and other parties, has assumed the cxcrcise of the
Leaguc of Nations function of consentirig or withholding consent
to the modification of the South-West Africa mandate, pursuant
to rcsolution XIV-1 (1) ofthe Assembly. In the view of the United
States, a mandate can be modified by agreement between the man-
datory Po\ver and the United Nations General Assernbly. It is sub-
mitted tliat this was the pattern follo\ved in thc case of the Palestine
mandate, and could be follo~iredin the casc of the South-\T'est Africa
mandate.
D. Ildodific~tion ojtlaentandnle wiilzouf the consent O/ the marzdatory
There remains the possibility that the appropriate organ repre-
scntir~g the international community might, in certain circum-
stances, be competent to rnoclify a mandate regardless of consent
by the rnandatory Power. Such circumstaiices might include (a)
--rcach by the mandatory of inandate obligations, and (b) events
40 Sec also thfolloivirsatemcnts made in sessions of thc General Assembly:
U.N. Oficic~l Records, General Asscmbl(1stscss.,2nd part. Fourth Cornmittee.
Sub-Coinmitteï 2,1946).51 (China); U.N. IZ/P.V.105 (2nd scss., plcnary, 1947).
26-31(India) ; id., st 57{Guatemala) ;U.N. OfFcial Recovds. Gcneral Assernbly
(3rd sess.,Fourth Cornmittee,1g48), zSg (Union of South Africa): id., at 317
{Uruguay).138 IVRIMES STATEJIEST OF THE U.S.A.
making Article 22 of the League Covenant and the mandate itself
no longer applicable to the situation of the mandated territorv.
Professor Wright, in his Mandates under theLeagzte of.iVatio?rs(1930)~
440-441 has stated :
"Whethcr the League can appoint a new mandatory in case
one of the present mandatories should cease to function has not
been determined. Nor fias it been decided whether the 1-eague
can dismiss a mandatory though bot11powers may be implied
from the Covenant assertion tliat the mandatories act 'on behalf
of the League', and members of the Permanent Mandates Com-
mission have assumed that they exist. Furthermore, it would
seem that the mandate of a given nation mould automatically
corne to an end in case the mandatory ceased to rneet the quali-
fications stated in the Coilenant and that the League avouldhe
the competent authority to recognize such a fact. Australia,
however, has declared that the League has no power to dismiss
a mandatory, and in reply to the question ofher representative
the Council's Rapporteur said the decision with regard to the
guarantee of loans in case of transfer of mandate carried no
implication in regard to the way in which that might take place.
Since the areas subject to mandate are defined in Article 22 of
the Covenant, it would seem that the League, whose cornpetence
is defined by the Covenant, could not withdraw a territory from
the status of mandated territory unless through recognition that
the conditions there defined no longer exist in the territory,"
There appears to have been no settled Iaw on these questions during
the life of the League of Nations. Had a dispute arisen it could have
been settled pursuant to paragraph z of Article 7 in the terms of
the Mandate for South-West Africa. That paragraph provided :
"The mandatory agrees that, if any dispute whatever should
arise between the mandatory and another hlernber of the League
of Nations relating to the interpretation or the application of
the provisions of the mandate, such dispute, if it cannot be settled
by negotiation, shall be submitted to the Permanent Court of
International Justice provided for by Article 14 of the Covenant
of the League of Nations."
Wh'ether, since the termination of the League of Xations, aiiy
League power unilaterally to modify a mandate has sunrived iii ni1
organ of the United Nations such as the General Assembly is simi-
larly unclear. The League Assembly Resolution of April 18,1946,
looked toward agreed arrangements between the mandatory Powers
and the United Nations concerning the future of mandates. l'hüt
resolution was adopted, of course, under circumstances in whicli the
mandatory Powers without exception had declared their intentions
to discharge the obligations of the mandates. An obviously different
situation is createdifa mandatory Powcr denounces or breachcs its
mandate. It may be cluestionable then whether the element of
consent on the part of the mandatory is relevant to action by the
appropriate international organ. WRITTEN STATEMENT OF THE U.S.A. I39
In the event of need, an authoritative determination on the above
points rnight be secured pursuant to Article 7 of the mandate
instrument taken in conjunction with Article 37 of the Statute of
the International Court of Justice. That article provides :
"Whenever a treaty or convention in forceprovidesfor reference
of a matter to a tribunal to 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."
If no organ of the United Nations were compctent, or able, to
niake new provision for a mandated territory where the mandatory
was breaching its obligations or the situation had so changed that
the purpose of the mandate was no longer being effectuated, there
might be a residuum of authority in the remaining Principal Allied
and Associated Yowers which could thcn be employed to make a
new disposition. See jl'right, op. cit. sz~pra,320, 502. The necessary
determination of facts and establishmeiit of rights might have to be
accomplished, in such circumstances, through a proceeding before
rtriappropriate international tribunal. 4. WRITTEN STATEMEXT OF THE GOVERNMENT
OF INDIA
On the termination of the First \ZTorldWar, the Principal
Allied and Associated Powers were confronted with the problem
of the future of ex-enemy territories. They had three alternatives:
(1) annexation, (2) direct international administratiori, and (3)
the placing of the territories under a mandate system. They
chose the third.
2. This decision was given effect to hy :
First, the Covenant ;
Second, the Peace Treaties (Versailles, June 28, 1919, Sèvres,
August, 1920, Lausanne, July 24, 1923),which cedcd the ex-enemy
territories to the Principal Allied and Associated Powers ;
Third, political decisions by the ,411iesregarding :
(a) which ex-enemy territories were to become mandates,
(b) the terms of the mandate ;
Fourth, confirmation, and definition of the terms if necessary,
of the mandates, by the League.
3. Vide Article 119 of the Treaty of Peace with Germany
signed at Versailles on June 28, xg~g, Germany renounced in
favour of the Principal Allied and Associated Powers al1 her
rights over German South Africa.
The Principal Allied and Associated Powers agreed that in
accordance with Article 22 of the Covenant, a mandate should
be conferred upon His Britannic Majesty to be exercised on his
behalf by the Government of the Union of South Africa to
administer South-West Africa and proposed that the mandate
should be in certain terms.
His Britannic Majesty for and on behalf of the Government
of the Union of South Africa agreed to accept the mandate and
undertook to exercise it on behalf of the League of Nations in
accordance with the terms of the mandate.
The Council of the League of Nations confirmed the mandate
and defined its terms on the 17th December, 1920.
4. In order to ascertain the international status of tlie Territory
of South-West Africa and the international obligations of the
Unioii of South Africa arising therefrom, it is essential first to
-consider what was the position mith respect to these matters
at the outbreak of the Second Ilrorld War and then to considcr
whether this position has been modified, and if so, to what extent
by the events that have occurred since.
5. An analysis of Article 22 of the Covenant and the Mandate
-forSouth-West Africa,which constitute basic documents, showsthat: WRlTfEN STATEMENT OF THE GOVERNhlENT OF INDIA 141
(a) Paragraph I of Article 22 of the Covenant laid down the
basic principle underlying the mandate system, the principle
being "that the weII-being and develo+ment"of "peopIes not yet
being able to stand by themselves under the strenuous conditions
of the modern world" form a "sacred trust of civilizationJJ,
and that "securities for the performance of this trust should
be embodied in this Covenant". In other words, the overall
purpose of setting up the mandate system was to "developJ' the
peoples, so that they may in due course be able fosfand by
themselves.
(6) Vide paragraph 2 of Article 22, this fundamental principle,
which \vas applicable to d the peoples of the territories to be
placed under the mandate system, was to be given practical
effect by entrustjng the tzrtelageof the peoples to advanced nations
wiling to accepi; the mandate. The relation of tutelage implies
fundamentally a relation of service and delcgation wholly in-
compatible with any rights of sovereignty in the mandatory.
The tutelage was to be "exercised by them as mandatories on
behaZfof the Leagzle". It has been suggested that the words "on
behalf of the League" imply or recognize a conferment of some
sovereignty on the League. It is respectfully submitted that
the suggestion is erroneous and will be critically examined later.
(c)The undcrlying conception of the trust for development
of peopies so that they would be "able to stand alone" was
mentioned again in paragraph 4 of Article 22.As the communities
formerly belonging to the Turkish Empire had reached a stage
of developrnent where their existence as independent nations
could be provisionally recognized, it was necessary only to provide
for the rendering of administrative advice and assistance hy
the rnandatory, in the selection of which tlie tvishes of these
commuriities were to he a principal consicteration.
(d) Paragraph 5 of Articlc 22 applied to peoples at such a
stage of development that the mandatory \vas made responsible
for the administration of the territory under certain specified
conditions.
(e)Paragraph 6 applied, infer dia, to South-West Africa which
could be "best ndministered under fheEaws of the mandatory as
integralportion of ilterritory, subject to the safeguards above men-
tioned in the interests of the indigenous population". The safe-
guards referred to were "freedom of conscience and religion,
subject only to maintenance of public ordcr and morals, the
prohibition of abuses such as slave trade, the arms traffic and
the liquor traffic, and the prevention of the cstablishrnent of
fortifications or military and naval bases and of military training
of natives for other than police purposes and the defence of
territory". Articles2-5 of the Mandate carried out the objectives
of this paragraph. It has been contended by the Union of South
Africa that, by virtue of this paragraph and Article 2 of alandate,
12142 WRITT'EN STATERIELIT OF THE GOVERNMENT OF INDIA
the Territory of South-?Vat Africa became an integral portion
of South' Africa. It is respectfully submitted that contention
is unsound because paragraph 6 speaks of administration and
not of governrnent as an integral portion.
(f) Paragraph 7 of Article 22 provided for an annual report
by the rnaiidatory to the Council "in reference to the territory
committed to its charge",and Article 6 of the Mandate incorporated
a similar provision. This provided the rneans by which the League
could supervise the carrying out of the mandate. The word
"charge" again emphasized the ternporary character of the
mandate and the eventual development of the peoples to a stage
where they woiild be able to stand alone.
(g) Paragraph 8 of Article 22 provided that the degree of
authority, control of administration to be exercised by the
mandatory, shall, if not previously agreed upon by the hlembers
of the League, be explicitly defined in each case by the Council.
In exercise of its po\vers under this paragraph, the Council con-
firmed and approved of the terms of the Mandate for Soulh-
West Africa proposed by the Principal Allied and Associated
Powers and accepted by the mandatory.
It is respectfully submitted that the mandate did not by virtue
of the confirmation of the League acquire an' additional validity
or force.
(h) Paragraph g of Article 22 provided for the constitution
of a Permanent Commission "to receive and examine the annual
reports of the mandatories and to advise the Council on al1
matters relating to the observance of the mandate".
A Permanent Commission was set up by a Resolution of the
Council of the League, ;dated December II, 1920, and till 1940
it continued to receive and examine reports frorn the Union of -
South Africa in reference to South-West Africa.
(i) Ttremains only to mention the first paragraph of Article 7
of the Mandate, which provided that "the consent of the Council
of League of Nations is required for any modifications of the
terms of the present Mandate". The proper interpretation of
this will be examined later.
6. At the eve of the outbreak of the Second World ]Var, South
Africa had been administering the territory under the mandate
and sending annaal reports to the Council of the League. The
territory was not in the ownership of South Africa, for :
(i) Germany had divcsted itself of al1 rights of ownership in
the territory. The Principal Allied and Associated Powers had
acquired al1 these rights.
(iiSouth Africa's rights were confined to what was granted
to it in the mandate. South Africa was yrecluded by the terms
of the mandate froni doing many things which an owner of territory
could do. It could not, for instance, give military training to WRITTEN STATEMEXT OF THE GOVERSMENT OF INDIA 143
the natives otherwise than for purposes of interna1 police and
the local defence of the territory. It could not rnodify the terms
of the mandate without the consent of the Council of the League.
It had neither dominium nor absolute freedom in its administration.
(iiiThe inhabitants did not acquire the nationality of the
mandatory. Oppenheim (Vol. 1, 7th ed., pp. 200-201) states the
position correctly thus :
"The effect of Article1x9 of the Treaty ofPeace with Germany
was to divest the inhabitants of South-West Africa of their former
German nationality and not to invest them automatically with
any new nationality. In April, 1923, the Council of the League
adopted certain resolutions with regard to the national status
of the inhabitants of 'B' and 'C'mandated areas, the substance
of which was that they had ridistinct status from that of the
mandatory's nationals and, while not disabled from obtaining
individual naturalization from the mandatory, did not auto-
matically become invested with its nationality. In the case of
the 'C' mandated area of South-West Africa, tlie mandatory,
with the consent of the Council of the League and with the assent
of the German Government, passed legislatiooffering collective
naturalization to al1 persons of German origin, subject to the
right of any of them to dedine the British nationality offered
to them."
(iv) A special provision was rcyuired for the purpose of incl.ztding
a mandated territory in the benefit of a general treaty signed
by the mandatory, while if the mandated territory had become
part of the territory of the mandatory a special provision would
have been necessary to exclude it from the operation of the
terntory.
(v) The administration of the territary was to be disinterested.
The mandate, according to the terms of Article 22 of the Covenant,
"was a system of 'tutelage' and tutelage implied 5 disinterested
activity. Further, it was stated, in the reply of the AlIied and
Associated Powers to the observations of the German delegation
on the condition of peace, that the Allied and Associated Powers
are of opinion that the colonies should not bear any portion of the
German debt nor remain under any obligation torefund to Germany
the expenses incurred by the Imperia1 administration of the Protec-
torate-in fact, they consider that it would be unjust to burden
the natives with a debt which appears to have heen incurred
in Germany's own interest and that it would be no les? unjust to
make this responsibility reçt upon the mandatory Powers, which,
in so far as they may be appointed trustees by the League of
Nations, will derive no benefit from such trusteeship." The man-
datory was obliged to use al1 the revenue and profits from the
property of the mandated territories for the benefit of the territories.
It could not hold any of the property of the mandated territory
in full dominium. 144 WRlTTEK STATEaIEXT OF THE CO\'ERSBIEFT OF IKDIA
In this connexion it is respectfully submitted that South
7.
Africa could not dispose of, or annex, the territory even with the
consent of the Council of the League. This point needs elaboration.
Reasons for this submission are as follows :
(a) Article 7 of the Mandate provided that "the, consent of
the Council of the League of Nations is required for any modi-
.fication of the terms of the preçent Mandate", This visualizcd
a modification and nqt an annihilation of the mandate, which
had been granted and accepted before the Council confirmed it.
The Council had confirmed the Mandate, not in exercise of the
powers conferred by paragraph S of Article 22 of the Covenant,
but by an implied request from the Principal Allied and Associated
Powers. By asking the Councii to confirm it, the Principal AIlied
and Associated Powers had not transferred to it the right to give
consent to the annihilation of the mandate.
(b) The words "the terms of the Mandate" only referred to the
articles of the Mandate, and the mandatory was not nominated by
any of the articles of the Mandate. ArticleI only specified the terri-
tory. Paragraph 2 of the preamble of the Mandate speaks of the
"formulation in the following terrns", and the terms were contained
in the articles which followed the preamble.
(c) Article7 of the Mandate has to be read in the light of para-
graph 8 of the Article 22, which provided for a definition by the
Council of the degree ofau thority,con trol.and administration to be
exercised by the mandatory at the stage of the creation of the
mandate if the terms had not already been agreed upon. Read in
this light, Article is a limitation of the powers of administration
which had been conferred on the mandatory, and it is only the
powers of administration which could be modified with the consent
of the Council.
8. Where did sovereignty in respect ofSouth-West Africa lieonthe
eve of the Second World War ?It has been seen that ,by Article I19
of the Treaty of Versailles, Germany renounced in favour of the
Principal Allied and Associated Powers al1her rights, titles over her
overseas possessions, which included South-West Africa, and that
South Africa got certain rights defined in the mandate to be exer-
cised under the supervision of the League.
Various views have been expressed on the above question. Fol-
lowing are among the numerous answers that have been given.
Sovereignty lay :
(i) in the mandatory ;
(ii) in the mandatory, acting with the consent of the Council of
League ;
(iii) in the Principal Allied and Associated Powers ; .
(iv) in the League ;
(v) in the inhabitants of the mandated area. WRITTES STATEMENT OF THE GOVERShlENT OF ISDIA 145
g. It seems dear that the mandatory did not acquire any higher
rights than contained in the mandate and Article 22 ofthe Covenant.
The rights conferred by these documents on South Africa are rights
of administration and much less than rights of sovereignty. This
aspect has already been examined in paragraph' 6 of this statement.
IO. Sovereignty did not lie in the mandatory acting with the
consent of the Council of the League of Nations, because, as stated
iii paragraph 6 of the statement, the League could not give a valid
consent to the annexation, cession or disposa1 of the rnandated
territory.
II. The League did not acquire any sovereign rights in the terri-
tory or ovci. the peoples of the territory. The provision that the
mandatory had to exercise tutelage on behnlf of the League only
means that the right of tutelage, which South Africa was entitled
to exercise, was to be exercised subject to the supervision of the
League. The League was functioning asan instrument of civilization,
whose sacred trust it had been declared to be in paragraph I of
Article 22. It was the exercise of the tutelage that u7as being
entrusted by the Principal Allied and Associated Powers to the
mandatory with the implied direction that it was the mandatory
lvhich was primarily responsible for the actud exercise of the rights,
while the function of the League was limited to the supervision of
this exercise of the right. But both were only performing the func-
tion of carrying out the tuteIage and nothing more. The League had
no authority to determine who the rnandatory should be. It had no
authority to change the mandatory and, as has been stated above,
it could not have been given a valid consent to a change in the
status of the mandated territory. In conclusion, it is respectfully
submitted that the League did n~t have any sovereign rights over
the territory.
12. '~his Ieaveç either the Principal Allied and Associated ~owers
or the peoples of the mandated territory as having the sovereignty.
Itis respectfully çubmitted that the Principal Allied and Associated
Powers did not retain any sovereignty in their hands for the follow-
ing reasons :
Theycreated a system by which peoples of themandatedterritory
could gradually grow to a fuller stature mith the assistance of the
mandatory. This was the underlying policy of the Powers and was
given expression to in Article 22 of the Covenant. The term "tutel-
age", the words "not yet able to stand by themselves" "until such
time as they are jble to stand alone", "development of such peoples
forms a sacred trust of civili~ation", "the rendering of adrninistra-
. tive advice and assistance", "administration of the territory", and
the words "can be best administered", al1 show that the above-
mentioned Powers created a systern by which, apart from the
gradua1 development of the peoples, no other act was necessary on
the part of anybady for thern to become independent. 13. In tvhat manner have subsequent events modified the posi-
tion outlined above ? In 1945 ,he United Nations (which did not
include al1the signatories to the Covenant of the League of Nations
nor even al1the "Principal Allied and Associated Powers") adopted
the Charter of the United Nations, Chapter XII of which deals
with the international trusteeship system. Article 75 of the Charter
provided for the establishment under the authority of the United
Nations of an international trusteeship systern for the administrs-
tion and supervision of such territories amay be placed thereunder
by subsequent individual agreements. The trusteeship system \vas
to be applied, inter alin, to "territories no\v held under mandate".
The Union of South Africa made a reservation during the discussions
on the Charter to give notice at the appropriate time of the termina-
tion of the mandate over South-\liesi Africa in the territory of the
Union ;but did not sign or ratify the Charter subject to this reserva-
tion. Its signature or ratification do not show any reservation.
14. Uuring the first parof the First Session of the United Nations
General Assembly in January-February, 1946, most of the
mandatories expressed their willingness to place territories held by
thern as mandated territories, under the international trusteeship
system, but the South-African delegate stated his Goveriiment's
intention of consulting the people of the Territory of South-West
Africa on the form which their future government should take.
The Assembly at the same session unanimously adopted a resolution,
inter alia, inviting "the States administering territorieheld under
mandate to undertake practical steps, in concert with other States
directly concerned, for the implementation of Article 79 of the
Charter (which provides for the conclusion of agreements on the
terms of the trusteeship for each territory to be placed under the
trusteeship system), inorder to subrnit these agreements for approval,
preferably not later than during the second part of the First Session
of the General Assembly".
15. At its final sessionin Geneva in 1945, the Assernbly of the
League of Nations adopted on 18 IV 46 a resolution, the operative
part of which reads :
"The Assembly ....
3. Recognizes -that, on the termination of the League's
existence, its function with respect to the rnandated territories
willcorne to an end, but notes that Chapters XI, XII and XII1
of the Charter of the United Nations embody principles corres-
ponding to those declared in Article 2'2of the Covenant of the
Lcague ;
4. Takes note of the espressed intentions of the Members of
the League now administering territoriesunder mandate to
continue ta administer them for the well-being and development
of the peoples concerned in accordance with the obligations
contained in the respective mandates, until other arrangements IVRIïTEh' STATEMENT OF THE GOIrERNJIEKT OF INDIA 147
have been agreed between the United Nations and the respective
mandatory Powers."
16.In the second part of the First Session of the United Nations
General Assembly, the'delegate of the Union of South Africa asked
the Assembly (in December, 1946 o approve of the incorporation
of South-West Africa in the territories of the Union of South Africa.
The Union delegate pleaded "physical contiguity" and "ethnological.
kinship" in favour of incorporation, adding that the ~Vishesof
indigenous inhabitants of South-West Africa had bcen ascertained
by South Africa iii a democratic manner and that they were in
favour of annexation by a preponderating majority. The Assembly,
however, rejected the proposa1 and by its Resolution of 19 XII 46
recornmended that the Territory of South-\l'est Africa be placed
under the international tmsteeship system, asking South Africa
to propose a trusteeship agreement therefor. The resolution also
noted South AfricaJs assursilce to continue to administer the
Territory in the spirit of the Mandate till an agreement on the
subject was reached. Tlie Union delegate promised to submit
reports on their administration of South-West Africa for the
information ofthe United Nations.
17.The matter came up for consideration at the Second Session
of the United Ilations Gcneral Assembly, 1947, The Assemby
reiterated its previous stand.
18. Since South Africa did not submit a draft agreement for
placing South-West Africa undcr the trusteeship system, as envi-
saged by the United Nations General Assembly resolution, the
question was again considered in the 3rd Session 1948 .he Union
delegate contended that South Africa was not accountable to the
United Nations for any action in respect of South-West Africa,
since, with the dissolutionofthe League of Nations, the mandate
had lapsed and the United Nations could not nutomatically become
the legatee of the 1,eagof Nations. He spolieofthe Uniondelegate's
reservation (mentioned in para13 above) and quoted from President
\Vilson's speech atthe Paris Conference,Igrg, to show that South-
West Africa was envisaged eventually to "find its destiny within
the future boundaries of the Union".
The General Assembly adopted a resolution maintaining its
previous resolution on the subject and expressing regret that the
recornmendations (for a draft agreement to place South-West
Africa under the trusteeship system) had not been carried out.
19. Again in 1949,South Africa not only failed to propose an
agreement, but also refused to submit reports on the administration
, of South-West Africa, alleging that the reports subrnitted had been
subjected to malicious and hostile criticism of the actions of the
Union of South Africa. Further, the Union of South Africa enacted
a measure called the South-West Africa Affairs Amendment Act. 1949, for "a closer association" of South-West Africa with the
Union.
20. In itç Fourth Sessionheld in r949, the United Nations General
Assembly adopted two resolutions on this question.
The first "reiterates in their entirety" the previous resolutions
and calls upon South Africa to submit reports on the administra-
tion of South-West rifrica;and
The second decides to subrnit the question to the International
Court of Justice for advisory opinion.
21. The following question arises in connexion with the conten-
tions of the Union of South Africa :
When the League of Nations ceased to exist, did the position as
existing on the eve of the Second World War change, and if so, in
what respects ? It is respectfully submitted that the only respect
in which the position has changed 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 iç that the mandatory iç not obliged to submit an
.annual report under Article 6 and that it cannot modify the termç
of the hlandate at al1because the procedure by which it could have
modified the terms of the hlandate has ceased to be applicable. One
of the "çecurities for the performance of the trust" which was
embodied in paragraph 7 of Article 22 of the Covenant by the sub-
mission of an annual report, and in the hlandate, has ceased to
esist ; but the obligation of South Africa to carry out the trust
remains in full force:It is in this light that the Resolution of the
Assembly of the League of Nations adopted on the 18th April, 1948,
should be rcad. The League of Nations could iiot confer its powers
under Article 22 of the Covenant and the hlandate to the United
Nations because they were in the nature of securities devised for
the performance of the trust, which securitieç would cease to exist
on the termination of the League's existence. Therefore, there is no
force in the contention that the termination ofthe League's existence
has in any manner modified the status of the territory of South-
West Africa and the international obligations of the Union of South
Africa arising therefrom. It is submitted that, with the exception
of the obligation to furnish annual reports to the Council, al1other
obligations remain intact.
22. The position mentioned in the foregoing paragraph was
accepted by the Prime"J1inister of South Africa in a speech macleon
the 15th Rlarch, 1946, in the Union House of Assembly, when refer-
ring to the suggested conclusion of an agreement placing South-
West Africa under the international trusteeship system. He stated
that "until such an agreement has been concluded the old position
holds, the slafztsqzroremains". WRITTEN STATEMENT OF THE GOVERNMENTOF IICDIA
149
23, It is respectfully submitted further that the Charter of the
United Nations ancl particularly Chapter XII impose on the Union
of South Africa an obligation in the nature of a legal duty to place
the mandated Territory of South-West Africa under the internatio-
nal trusteeship system.
24. Paragraph 2 of Article 80 of the Charter states that
paragraph I of this article shall not be interpreted as giving grounds
for delay or postponing of the negotiations and conclusion of
agreements for placing mandated and other territories under the
trusteeshipsystem as provided for in Article 77.The Prime Miniçter
of South Africa put the construction of paragraph 2 as follows :
"That was to prevent a situation where the mandatory says '1
do not want to make an agreement at.ail'.... Tomy mind the
position is quite simple. What sub-section 2 of Article 80 was
intended to prevent was that a mandatory should Say : the League
of Nations is dead ; 1 am in this position, 1 do not tvant to come
under U.N.O. atali and 1 do not want to come under the Trustee-
ship Council at all.That positio isprecktded. This is how 1 under-
stand it...."(Extract from the debates of the 15th hlarch, 1946,
'in the Union Assembly.) This, it is respectfully submitted, is the
correct interpretation of paragraph 2 of Article 80. It implied an
international obligation to negotiate and conclude agreements
for placing territories under the trusteeship syçtem and not to
stand outside the trusteeship systern. A subsequent individual
agreement is necessary for placing a territory held under mandate
under this system, but there is an obligation on the mandatory
'to negotiate and conclude an, agreement in this respect. Until
such agreement has been concluded, Article 80, paragraph r,
preserves the rights of the States or peoples and the terms,of the
existing instruments. The chapter thus proceeds on the funda-
mental basis that there are certain territories held under mandate.
In other words, the existence of the mandate and its.continuance
tilan agreement is concluded are recognized. South-West Africa
did not therefore become a res nnlEitts as contended by South
Africa. It issubmitted that the negotiation and conclusion of a
trusteeship agreement is one of the international obligations
tvhich South Africa must fulfil.
25, It has been contended that the Union. of South Africa
made a reservation during discussions on the draft of the Charter
to give notice at the appropriate time of the termination of the
mandate over South-West Africa and the incorporation of
South-West Africa in the territory of the Union. It is further
contended that by virtue of this the Union of South Africa is not
bound by any of the provisions of 'Chapter XII of the Charter in
so far as'they are repugnant to the reservation. It is respectfully
submitted that a reservation made during the discussions of a
multiIateral treaty does not affect the operation of the treatyunless reservation has also been made at the time of the signature
of the treaty and duly attached to the signature and recorded
in a firocès-verbalor protocol of signatures or unless reservation
is attached to the ratification. A reservation is the refusal of an
offer. But an offer is not made in the case of a multilatera1 treaty,
until the treaty is offered for signature. Therefore, a reservation
made previous to the making of an offer cannot have any legal
effect. The Union of South Africa, having not renewed its reserv-
ation at the time of signing the Charter or at the time of its ratifica-
tion under Article IIO of the Charter (ivhich, at any rate, does
not provide for a limited ratification), cannot derive any advantage
from the reservation made during the drafting of the Charter.
2G. The Union of South Africa, having agreed to submit reports
on their administration of South-West Afrjca for the information
of the United Nations, was incornpetent to withdraw this under-
taking and isobliged to continue supplying such reports.
27. The answer to the question relnting to the competence to
modify the international status of the TeArritoryof South-West
Africa follows from what has been stated above. In view of the
submissions that (a) the Mandate subsists and that the administra-
tion and the future development of the Territory must take place in
accordance with the Mandate in so far as it is applicable now,
(b) sovereignty rests with the peoples of theterntory, (c)that South
Africa isobliged to conclude a trusteeship agreement, South Africa
is not competent to modify the international statuç of thel'erritory.
No other authority except the peoples of the Territorp can have any
competence fo modify the status, and this modification must take
place in accordance with the provisions of Chapter XII of the
Charter.
28. It is, in conclusion, respectfully submitted that the Court
rnay be pleased to answer the questions referred to it in the follow-
ing manner i
(a) That the Territory of South Africa is a mandated territory
and the Union of South Africa has the international obligation to
carryout the provisions of the Mandate, excepting Article 6 and the
first portion of Article 7. In particular, the Union of South Africa
continues to have the following'international obligations in respect
of the Mandate of South-West Africa :
(i)Not to (directly or indirectly) incorporate or annex the Terri-
tory of South-West Africa in its territory ;
(ii)To further the well-being and development of the inhabitants
of the Territory so that they may be able to stand alone ;
(iii) To carry out the obligations under Articles 2, 3, 4 and 5 of
the Mandate ;
(iv) To negotiate and conclude an agreement for the placing of
the Territory under the international trusteeship system ; WRITTES STATE>II:PiT OF THE GO\'EKXLIEST OF IXDIA IjI
(v) To furnish reports to the General Assembly in accordance
with its declaration dated the ~3rd July, 1947 ;
(b) That the provisions of Chapter XII of the Charter are applic-
able inasmuch as they impose an obligation in the nature of a legal
duty on the Union of South Africa to place the Territory of South-
West Africa under the international trusteeship system and to.
negotiate and conclude an agreement for that purpose ;
(c)That the Union of South Africa has no cornpetence to modify
the international status of the Territory of South-West Africa ;but
it is the peoples of the mandated territory, when they are in a
position to stand alone, who alone can deterrninc and modify the
international status of the territory. En me référant à la Résolution de l'Assemblée généraledes
Nations Unies, adoptée A la IVmgSession, le 6 décembre 1949 au
sujet de la situation juridique dans le Sud-Ouest africain, et
conformément à la décisiondu Président de la Cour international\
de Justice en date du 30 décembre 1949, j'ai l'honneur de commu-
niquer l'opinion de mon Gouvernement :
1) Ilon Gouvernement maintient dans toute son étendue liatti-
tude qu'il avait prise lors des sessions prbcédentes de l'Assemblée
,.généraledcs Nations Unies au sujet de l'obligation où se trouve
l'Union sud-africaine de, soumettre le Territoire du Sud-Ouest
africain à la tutelle des Zations Unies.
Comme llavait déjà constaté le déléguéde la Pologne à la
IVmc Session de l'Assemblée généralel,a consultation de la Cour
internationale de Justice sur cette question n'avait aucun fonde-
ment de fait ni aucun fondement juridique. Lors de la TIC Session
de 1'AssemblCegénérale,les Nations Unies avaient déjà adopté
une liésolution, en date du 14 décembre 1946, recommandant que
ile territoire sous mandat du Sud-Ouest africain soit placé sous le
régime international de tutellen ef invitant le Gouvernement de
l'Union sud-africaine à soumettre à l'examen de l'Assemblée
généralelin accord de tutelle pour ledit territoire.
A la 11"'"Session de L'Assembléegénérale, lesNations Unies se
sont reportées à cette r6solution, et, ayant constaté que. l'cnion
sud-africaine ne l'apas mise i exécution, ont réaffirméla rccom-
mandation que le Sud-Ouest africain soit placésous un systkme de
tutelle et ont invité le Gouvernement dc l'Union sud-africaine à
présenter un accord de tutelle, en exprimant l'espoir que le projet
d'un tel accord serait discuté à la IIImc Session de l'Assemblée
générale. (Résolutiondu I Cnovembre 1947.)
ktant donné que le Gouvernement de l'union sud-africaine n'a
pas mis à. exécution les résolutions dc la I~et de la IlnloSession
de 1'Asscmblkegénérale,les Nations Unies ont adopté le 26 novem- .
bre 1948, à la IIlme Session, une résolution, dans laquelle elles
constatent avec regret que les recommandations n'ont pas été
exécutées.
Bien que cette résolution se soit bornée à.exprimer un regret,
alors que le fait, de l'avis de mon Gouvernement, constitue une
violation de la Charte, elle qualifie cependant clairement l'état
de choses.
2) 11 en résulte que l'Assembléegénkralc a pris au cours des
trois sessions une position claire et sans équivoque, reconnaissant
l'obligation indiscutable où était le Gouvernement de l'Unionsud-africaine de placer ce territoire sous le systède tutelle,c'est-
à-dire de le soumettre au chapitre XII de laCharte des Nations
Unies. L'Assemblée a donné par conséquent à l'article 77, para-
graphe I a, la seule interprétation possible qui résultede l'esprit de
la Charte. Dans cet état de choses, mon Gouvernement considère
qu'il n'est pas juste que cette question soit traitée par la Cour
internationale de Justice, Ptant donnéque, comme il est prévudans
les fondements de la Charte, tout organe des Nations Unies a le
droit d'interpréter les dispositions de la Charte dans le cadre de
ses compétences.
L'Assemblée générale,dans l'exercice de ses compétences, a
constaté l'obligation pour l'Union sud-africaine de placer sous
tutelle ledit territoire et de conclure un accord de tutelle, ayant
ainsi tranché la question.
3) En adoptant sur ce point une attitude de principe, mon
Gouvernement ne peut passer sous silence d'autres faits, liés A
l'histoire de ce probléme. Lors de sa Première Session, l'Assemblée
généralea déjAconstaté et a requ l'assurance qu'en attendant la
conclusion de l'accord de tutelle, le Gouvernement de l'Union sud-
africaine continuera d'administrer ledit territoiredans l'esprit des
principes établis par le mandat. L'Assembléegénérale s'estopposée
catégoriquement à l'incorporation de ce territoire. (RCsolution du
14 décembre 1946.)
Par une lettre du 23 juillet1947 ,e Gouvernement de l'Union
sud-africaine a communiqué aux Nations Unies qu'il ne procéderait
pas à l'incorporation du Sud-Ouest africain et qu'il maintiendrait
le statzr qtra dudit territoire. L'Assemblée générale aautorisé le
Conseilde Tutelle à examiner lerapport sur la situation dansle Sud-
Ouest africain, (Résolution du IC'novembre 1947. M)algrécela, le
représentant de l'Union sud-africaine a fait connaître, gnovembre
1948, l'intention de son Gouvernement de former (une association
plus étroiteiientre le Sud-Ouest africain et l'Union sud-africaine,
ce qui a constitué un premier pas vers l'annexion. L'Assemblée
générale, par contre, a recommandé que l'Union sud-africaine
continue à fournir des renseignements sur l'administration dudit
territoire. ,
Nonobstant ces résolutions, le Gouvernement de l'Union sud-
africaine a communiqué aux Nations Unies, par une lettre du
II juille1949 ,ii'ilne fournirait plus de renseignementetne trans-
mettrait pIus de rapports concernant le Sud-Ouest africain. .
4) Toutes ces circonstances prouvent d'une façon irréfutable que
le Gouvernement de l'Union sud-africaine non seulement aenfreint
les dispositionsdu chapitre XIE de la Charte, mais que, mémedans
la périodetransitoire dont la duréedevait naturellement êtrebrève,
il a violé lesdispositions du chapitre XI de la Charte. CeGouverne-
ment s'est refuséà remplir les engagements qu'il avait reconnus lui- I54 EXPOSÉ DU GOUVERNEMENT POLONAIS
meme concernant les rapports et les renseignements sur la situation
dans le.Sud-Ouest africain.
Les faits et les conclusions qui en résultent n'exigent pas de com-
mentaires.
5) En résumé, monGouvernement se voit obligédeconstater que,
contrairement aux engagements pris en vertu du mandat et aux
obligations résultant de la Charte des Nations Unies, le Gouverne-
ment de l'Union sud-africaine a systématiquement réduit le Sud-
Ouest africain à un état qui, pratiquement, ne diffère pas de celui
d'rinc colonie annexée.
Comme il résiilte de la Charte des Nations Unies, les territoirqs
visésdans le chapitre XII doivent recouvrer l'indépendance dans
le plus bref délaipossible. Conformément à ses principes, le droit
des peuples à disposer d'eux-mêmeset la réalisation de ce droit sont
à la base mémede l'organisation. Ainsi, il n'y a que deux solutions
possibles pour les territoires dontl est questionà l'article 77, para-
graphe I a :si ces territoires sont capables de s'administrer eux-
mémes, ils doivent Etre immédiatement déclarésindépendants ;
sinon, ils doivent êtresoumis au système de tutelle. Le Gouverne-
irient de l'Union sud-africainea appliclué,en fait, une méthodetout
opposée : profitant du fait qu'il administre ce territoire, il tend à
trancher la question du développerncnt ultérieur de la population
en le subordonnant encore davantage à l'Union. Tl est clair, en
effet, que ce n'est qu'après avoirbten.u une indépendance complète
que les habitants du Sud-Ouest africain pourront, sur une base
d'égalité, décidedru caractère de leurs relations avec tel État ou tel
autre. Ces méthodes constituent dairement une violation de la
Charte.
6) Prenant en considération l'ensemble de ces faits, le Gouverne-
ment polonais doit constater que les mesures prises par le Gouverne-
ment de l'Union sud-africaine sont en contradiction flagrante avec
la Charte des Nations Unies et avec les résolutions adoptées par
. l'Assembléegénérale,et qu'en principe la question de la soumission
du Sud-Ouest africain au système de tutelle a déj5ététranchée par
la Charte elle-m@meet par les résolutions susmentionnées de
lJhssemblée générale.
Le Gouvernement polonais exprime la'conviction que dans une
telle situation la Cour internationale de Justice ne prendra aucune
décisionsusceptible d'enfreindre l'autorité des résolutions de l'As-
sembléegénérale,adoptées conformément à la Charte des Nations
Unies.
Written Statements