Preliminary Objections filed by the Government of the Republic of South Africa

SOUTH WEST AFRICA

3. PRELIMINARYOBJECTIONS FILED BY THE
GOVERNMENT OF THE REPUBLICOFSOUTHAFRICA

LIST OF ABBREVIATIONS

Appellate Division of the Supreme Court
A.D. of South Africa

A.J.I.L. The American Journal of lnternational
Law.
A.P.S.R. The American Political Science Review.
Bib. Un. Biblioth6que Universelle et Revue de
Genkve.
B.Y .B.I.L. The British Year Book of International
Law.
C.L.J. The Cambridge Law Journal.
G.A. General Assembly.
Transactions of the Grotius Society.
Grotius Soc.
I.L.A., Rep. International Law Association, Reports.
L. ofN., Assembly, Rec. League of Nations, Assembly, Records.
L. of N., Council. Min. League of Nations, Counul, Minutes.
L. of N., O.J. League of Nations, Official Journal.
L. of N., O.J., Spec. Sup. League of Nations.OfficialJournal, Special
Supplement.
O.K. OfficialRecords.
P.M.C., Min. Permanent Mandates Commission. Minutes.

R.D.I. lation Comparée.nternational et de Légis-

S.A.L.J. The South African Law Journal.
S.C. Security Council.
U.N.C.I.O. United Sations Conferenceon International
Organization.
U.N. Doc. United Nations Document.
U.N.P.C. United Nations Preparatory Commission.
Union of Çouth Africa. Parliamentary
U.Senate.., Parl. Deb., Debates, Çenate. PRELIMINARY OBJECTIONS OF SOUTH AFRICA
2I3

CHAPTER 1

INTRODUCTORY

A. The Preliminary Objections to be dealt with herein relate to
the proceedings instituted in the Intemational Court of Justice by
the Govemment of Ethiopia and the Govemment of Liberia, by
separate Applications filedon 4th November, 1960.The said Govern-
ments are hereinafter referred to as the "Applicants". Pursuant to

an Order of the Court of 13th January, 1961, each Applicant filed
a separate Mernorialon 15th April, 1961.Thereupon the proceedings
were joined by the Honourable Court by Order of 20th May, 1961.
The said proceedings are directed against the Govemment of the
Union of South Africa which, as from 31st May, 1961,isknown as
the Republic of South Africa. 'The term "Respondent" is herein-
after used, for convenience, as referring to the Govemment of the
Union or of the Republic. as the context relative to date might
require; and sometimes the term "Mandatory" is used witb the

same meaning.
B. Respondent herewith files, in terms of Article 62 of the Rules
of Court, the Preliminary Objections stated hereinunder, and prays
that the Honourable Court may. without deciding on the merits of
the case submitted by the Applicants, and by reason of one or more

or ail of the said Objections, declare tbat it has no jurisdiction in
the South West Africa Cases. The Objections may briefly be stated
as follows:
I. The "Mandate for German South West Africa". upon Article 7
of which the Applicants' claim to jurisdiction is founded, has lapsed,
in the sense and to the extent that it is no longer "a treaty or

convention in force" within the ineaning of Article 37 of the Statute
of the Court. (Seeparagraph D belon.)
2. Even if the Mandate coulcl be said still to exist as a "treaty
or convention in force", the alleged dispute is not, between
Respondent and "another Member of the League of Nations" in
terms of Article 7 thereof, inasmuch as both Applicants ceased to

be Mernbers of the League of Nations at its dissolution.
3. In any event the conflict or disagreement alleged by the
Applicants to exist between theni and Respondent. is not a8'dispute"
as envisaged in the said Article7, in that the said conflict ordisagree-
ment does not affect any material interests of the Applicant States
or their nationals.

The RcpibliofSouth Africn Conrliiulzon Ko.32 of1gGr.Sectionsi.3and
121.214 SOUTH WEST AFRICA

4. Furthemore, in any event, the alleged conflict or disagreement
is not a "dispute" which "cannot be settled by negotiation" within
the meaning of the said Article 7.
C. Each of these Objections will, in the above order, be fully
developed in a separate Chapter below. These will be preceded,
however, by a Chapter settingout the historical background to the
present proceedings insofar as is relevant for the purposes of the

Preliminary Objections.
1).Attention is, at the outset, drawn to the ambit of the con-
tention relative to lapsing of the Mandate as advanced in support
of the First Objection. That contention confines itself to the pro-
positions that, insofar as the Mandate was an international "treaty
or convention" within the meaning of Article 37 of the Statute of
the Court, it lapsed upon dissolution of the League, and that this
consequence is in itself fataltothe Applicants' claim to jurisdiction.
No submissions are advanced about the questions whether the

Mandate. in the wider sense of being an institution, lapsed upon
dissolution of the League or survived the League, and, in the latter
event, with what exact import and to what exact extent: such
questions extend beyond the ambit of relevance to jurisdictional
issues. In particular, it is for the purposes of these Objections to
junsdiction unnecessary to review the proposition stated in the
1950 Advisory Opinion of the Court 'to the effect that the Mandate
acquired an objective or "real" aspect which survived the League:
if, forpurposes of argument, the correctness of such a proposition
be assumed in the fuilest measure, there is yet no conflict involved
with Respondent's contention that in the sense of an international
"treaty or convention" the Mandate is no longer "in force". The
significance of the distinction is more fully developed in Chapter III

below. The purpose of this initial bnef reference is to guard against
confusion which could arise-as has in fact happened in the past-
from the different senses in which the terms "Mandate", and
"lapsing of the Mandate", could be used and understood.
E. Certain of the submissions advanced by Respondent in sup-
port of the Preliminary. Objections are not in accord with con-
clusions arrived at, or views expressed by, the Court or some of its
Members in the Advisory Opinion of 1950. Respondent recognises
that, althougb advisory opinions have no binding force, they
are entitled to the greatest respect. Respondent submits, however,
that where good reasons exist therefor, an advisory opinion

may be departed from in subsequent contentious proceedings.
It is also submitted that certain of Applicants' ailegations,
especially at pages 97 and 98 of their Memorials, cannot be
supported. Applicants aiiege (page 97) that a statement of law in
an advisory opinion, concerning an "actual dispute ... especially
' "Infernalionaslatus of Soulh-WsAfrico.Advisory Opinia: 1.C.JReports
1950,p. 128." PRELIMINARY OBJECTIONS OF SOUTH AFRlCA 215

if rendered after hearing of the disputants' submissions is 'sub-
stantially equivalent' to deciding the dispute". In support thereof
the EasternCareliaCase1 is quoted and Applicants further allege
(page 98) that the Peace Treaties Case of 1950 "followed the
doctrine of EasternCarelia, but distinguished the two cases". This
allegation is incorrect. The Majority Opinion in the PeaceTreaties
Case merely distinguished the two cases but expressed no view
on the correctness of the doctrine that an advisory opinion may be
"substantially equivalent to deciding the dispute". The Majority
Opinion in the PeaceTreate'esCase is reflected in the statement at
page71 that the "Court'sreply isonly ofanadvisory character8',is for
the enli~htenment of the United Nations and isnot ~iven to States.

In ~ës~ondent's submission, certain aspects of the 1950 Opinion
will have to he reconsidered, even assuming the correctness of
Applicants' statement that:
"The International Court does .net adhere. to the. doctrine of
stavedecisis;nevertheless it willnot readily depait-from a prior
ding, especially ifthe subsequent proceeding involves issues of
iact and law identical in every respect tothose in the prior pro-
ceeding".'

In every instance in which Respondent in these proceedings
urges a departure from conclusions stated or views expressed in
the 1950 Opinion, it submits that good reasons exist therefor.
The said reasons are dedt with separately in Respondent's argu-
ment relative to each instance of suggested departure. In the
main they will he found to relate to features of the 1950 pro-
ceedings, such as the lack of presentation, or of adequate presen-
tation, to the Court of material information of vital importance,
factual and othenvise. In the result, the issues cannot, in any true
sense, be regarded as "identical in every respect to those in the
prior proceedings", either as regards the facts or as regards the
conclusions of law to be drawn therefrom. The Court's jurisdic-

tion was in any event, not foqnulated as a specific issue in the
1950 Opinion, which was primarily intended for the guidance of
the General Assembly in respect of a general question submitted
to the Court.
In Respondent's submission these features render desirable, and
even necessary in the interests of justice, a de novo and thorough
consideration of the matters in question.

P.C.I.JSe..B.No. 5 (igzj).
2 "lntwpre/o/io/Pcncc Trcatias, Advirary Opinion: I. C.J. Rcpop.65."sa,
aP. 97 ofthe Mcmwials. SOUTH WEST AFRICA

CHAPTER II

HISTORICAL BACKGROUND

Part A.

I. In this Chapter the historical background to the present
proceedings will be recounted, but only to the extent relevant for

the purposes of Respondent's Preliminary Objections. For the
sake of convenience, particularly as regards replying to certain of
the allegations by the Applicants in Chapter II of their Memorzals,
the subdivisions in that Chapter are broadly adhered to. Many of
those allegations could, however, be relevant only to the merits of
their case, and full replies thereto would not be relevant for the

purposes of the Preliminary Objections.
This account will, therefore, not contain a comprehensive state-
ment of the historical background to the proceedings. Respondent
will, in particular, refrain from furnishing full replies to those
allegations, and citations from various reports, which relate to
charges that Respondenthas violated substantive obligations con-

cerning the administration of South West Africa.

ORIGIN AND NATURE OF THE MANDATS EYSTEM

2. Although the term "Mandate" had been used hefore in regard
to certain international relationships, 1 it first acquired a special
meaning in International Law when the Mandate System of the

League of Nations was instituted. This System originated, together
with the League, from the peace settlements effected after World
War 1. As Quincy Wright remarked:

"This system, like most other political innovations, was,not a
product of disinterested juristic thought nor of detached scientific
investigation but was a compromise invented by the Versailles
statesmen to meet an immediate politicaldilemma". '

' In this respect vide Hall. H. D. Mandater, Dcpcndcncirs and Trurkerhip (1948).
p. 17 cl reg. and "The Trusteeship System".B.Y.B.I.L.. Vol. XXIV (1947).
pp. 44-46; Wright. Q. Mnndaler undrr Ihe Leaguc of Notions (Iwopp. 15-23;
Schneider. W. Dos V6lkerrechllicheMondat (1926). p. sey.;Mohr. E. G. Die
Fvage der Souucrdnii<ïlin den Mnndelrgcbieicn (19~8i);Temperley. H. W.V.
A HistoryO/ihe Praçe Conferencc of Paris (1920-24). Vol. VI. p. 502: Kennedy.
W. P. M.and Schlosberg. HJ.TheLaw nndCustom of theSouth Africon Conslitulion
XLVII).(1920)1.p. 356-57.. H. "Le Systbme des Mandaü Coloniaux". R.D.I.. Vol.
'Wright. op. cil..3.. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 217

3. The dilemma which required resolution by compromise in-
volved, briefly, a clash of views and aspirations within the ranks
of the Allied and Associated Powers relative to the future of terri-
tories and colonies conquered from enemy powers during the war.
4. Among such temtones was German South West Afnca, which

had been surrendered toSouth African military forcesin July, 1915,
as a result of which Respondent remained in military occupation
for the remainder of the war and thereafter pending the peace
Settlements. Similar situationsobtained in respect ofother temtories
conquered and occupied by other Ailied and Associated Powers.
These included, inter alia, the former German colony in New
Guinea, which was occupied by Australia; that in Samoa, by New
Zealand; the German islands in the Pacific Ocean north of the

Equator, by Japan; and various German territories elsewhere in
Africa, by Great Britain, Belgium and France. Further north,
various portions of the Ottoman Empire were in Allied occupation.
5. During the war. secret treaties and agreements were made
between some of the Mies whereby their respective claims to

various occupied territories were to be recognised in the event of
an Mied victory. And the British Imperia1 War Cabinet decided
in March, 1917 ,hat the three Dominions, Australia, New Zealand
and South Africa should be allowed to annex the abovementioned
occupied territories, adjacent to their own, namely, German New
Guinea, German Samoa and German South West Africa respec-
tively.l
On the other hand, certain proposals for international control of

conquered colonies, some of them even relating to al1 colonies, '
were also made during the war years.
In 1918 , .L. Beer, historian, and adviser to President Wilson
of the United States of America, connected such proposals with
others then current for the establishment of a League of Nations.
He proposed a Mandate System for Mesopotamia and certain of
the German Colonies,urging that the administration of these areas
should be entrusted to "different States acting as mandatories of
the League of Nations". Beer considered, however, that the

Mandate System could not be applied to South West Africa, and
recommended that this region be incorporated in the Union of
South Africa.
Vide Lloyd George, D. Th6 Tvufh about the Pcac Trcnties (1938). Vol. 1. pp.
114.23 and Vol. II. p. 766: Spiegel.Dns V5IherrcchllichcMandat und reine
Anwendung ouf Pdalino (rgz8)pp.8-9; Temperley. bp.cil.. Vol. 1. P. 195;
Logan.R. W. The Africnn Mandates in Wmld Polilics (1948).1-2Tomrend.
M. E. The Riss and Fol1ofGcrmony'sColonial Empive (rg30), pp. 363-69. 377-78.
VidcHubson, J. A. Towards InlcrnafiaoCovcrnm~nl (igrg). Vidc also the
discussion by Potter,B.in "Originof the System of Mandates under theLeague
of Nations", A.P.S.R.. Vol.XVI, No. 4 (November. rgzz). pp. 563-83.
Beer, G. L. African Qu~slionrnt IhcPnrir Pence Confcrcncï.H. Gray
(192Ibid.. p. 443.

15 218 SOUTH WEST AFRICA

Like Beer, General Smuts, in the publication referred to by the
Applicants, ' linked a proposed Mandate System with a proposed
League of Nations. He limited his proposal to "territories formerly

belonging to Russia, Austria-Hungary and Turkey", and expressly
excluded the "German colonies in the Pacific and Africa". since in
these cases "it would be impracticable to applv a.. .deas.of political
self-determination in the European sense".
The Cn~te~ ~ ~-~~~~~~-\meri(::< wa~ ~t~ ~ ~Dart\. to thcsecret treaties

and agreements mentioued above; she eiterh the war after most
of them had been concluded. At the termination of the war President
Wilson strongly advocated a policy of "no annexations"; and he
went to the Pans Peace Conferencedetermined to secure application
of the proposed Mandate System, in an extreme form, to al1 ex-

enemy colonies and possessions. His proposals, as contained in his
drafts of the Covenant. included that the League would be vested
with complete authority and control, that it would be entitled (not
obliged) at its discretion to delegate to a State or "organised agency"
powers to act "as its agent or mandatory", and also that by reason

of an appeal from the people of the territory the League could
substitute some other State or agency as mandatory. In keeping
with this conception, his Third Draft proposed that the expenses of
Mandatory govemment would, if necessary, be borne by al1 the
Members of the League. '

6. From the above, the makings of conflict at the Paris Peace
Conference will be manifest. The future of the German Colonieswas
discussed as from the 24th January, 1919 n the "Council of Ten",
which consisted of the heads of government and foreign ministers

of the United States of America, the United Kingdom, France,
Italy and Japan. Representatives of Australia, New Zealand and
South Africa were allowed to be present and to express their views
at the discussions concerning the future of the former German
Coloniesin New Guinea, Samoa and South West Afnca.

Tbere was fairly general agreement that a Mandate System was
to be established. The controversy concemed the contents of such
a System, and particularly the peoples and temtories to which it
was to be applied, especially inasmucb as there was general recog-
nition of the wide differences between the various peoples and
territories concemed, ranging from, on the one hand, developed

'societies to, on the other, peoples stili living in the Stone Age."he

1 Smuts, J. C. The Levguc of Natias: A Pradiçnl Suggrstia (1g1S). p15 and
Applicants' Memorinls. p. 34.
Smuts. op. cii., pp12and 15.
* Vidc partieularly paras1, II and III ofhis Second Draft, as amended by his
Third Draft: Baker, R. S. Woodrow Wjlsa and WorldSelilcmnt (~gzz-23). VolIII.
pp. 198-ro. 126.29.
Ibid.. p. 127.
Vidc For. Ref. U.S.: The Paris Peace Cafcrence. 1919, Vol. III.786.Accor-
ding to an article in the United Nations Rcviczuof September. rg54, (V1,NO. 3.
p. 31). the people in some parts of New Guinea still live "in Stone Age conditions
of primitive savagery". VidaalsoVol.2. No. 3 (September. 1955). p. 34. PRELIMINARY OBJECTIONS OF SOUTH AFRICA
219
representatives of the three Dominions strongly pressed their cases
for incorporation of the respective territories, and were supported
by the British Prime Minister, Mr. Lloyd George. After represent-
atives of Japan and France had aiso spoken in favour of annexation
in their cases, President Wilson's reaction was so strong as to

threaten "a break-up of the conference". '
The Conference reached a state of apparent deadlock on 27th
January, 1919. There followed negotiations behind closed doors for
two days, during which Lloyd George secured the agreement of the
representatives of the Dominions to a document which he handed
in as a proposal to the Conference on 30th January, announcing
that it

"did not represent the real viewsof the Colonies[Dominions];but it
had been acce ted by them as an attem t at a compromise. . . be-
cause they fulg realised that there cou1 'rbe no greater catastrophe
than for the delegatesto separate withoiit having cometo a definite
decision". '

The document contained provisions which, with unimportant
aiterationsand one important addition, a eventudy became Article
22 of the Covenant. ' Its essential feature, as Lloyd George ex-
plained, was the division of Mandates into three classes in recogni-
tion of the wide range of differences between the various communi-
ties and temtories. He described the third of these classes (the
eventual C Mandates) as:

"Mandates applicable to countries which formedalmost a part of
ted the mandatory". an (Italics added.) whowouldhavetobeappoin-

It was in this category that German Xew Guinea, German Samoa

and German South West Africa were to be put.
President Wilson indicated that the document "made a long
stride towards the composition of their differences", but at the
same time suggested deferment of a decision. A somewhat heated
discussion ensued, in which the Prime Minister of Australia rendered
clear that for his country and New Zealand the document "repres-
ented the maximum of their concession". * A speech, generaiiy
described by commentators as "conciliatory", was then made by
the South African Prime Minister, Cieneral Botha, in which he
stated, inte? dia :

' Lloyd George,op. cilVol. 1, p530.
For. Rcl. U.S.: ThaPovis PenConference,1919, Vol. III.78s.
' For textni&t.Fw. Rd. U.S.: Thc Paris PenceConfevencc,1929,Vol. III,pp.
795-96.
Ibid.p.786.
' The words quoted are taken from the original unpublished Minutes of the
Councilof Ten. In For. Rcl. U.S. the word "minimum" is erroneously substituted
for the word "maximum". Yi& Vol. III, pp.799-800.220 SOUTH WEST AFRICA

"He appreciated the ideals of President Wilson. ... They must
remember that their various peoplesdid not understand everything
from the same point. . .Personally he felt very strongly about the
question of German South West Africa. Hethought that it differed
entirely fromany questionthey had to decidein this conference,but
he would beprepared to Saythat hewasa supporterofthe document
handed in that morning [by Lloyd George],becauseheknew that, if
theideafructified,theLeagueofNationswouldconsistmostlyofthesame
peele whowerepresenttherethatday, whounderstoodtheposition and
wha would not maRe it impossible for any mandatory to govern the
country. That was whyhe said he wouldaccept it". '(Italics added.)

After further discussion, President Wilson agreed to accept the
proposal, which was then adopted, with very minor amendments. 2
In its eventual form, as Article 22 of the Covenant, it became part
of the Treaty of Versailies, which was signed on 28th June, 1919,
and came into force on 10th January, 1920.

7. In terms of Articles 118, 119 and 257 of the Treaty, Germany
renounced al1rights in or over her colonial possessions in favour of
the Principal Allied and Associated Powers. The Mandate for
South West Africa was ailocated to the Union of South Africa by
the Supreme Council of the AUied and Associated Powers on the

7th May, 1919, its decision in that regard being recorded as follows:
"GermanSouth West Africa. The Mandate shall be held by the
Unionof South Africa". '

On the 24th December, 1919, the Principal Ailied and Associated
Powers a~~roved the terms of a draft Mandate Ameement acce~t-
able to théMandatory. The Mandate and the pro&&d terms wére
confirmed and defined by the Council of the League, in agreement

with the Mandatory, on the 17th December, 1920, as the "Mandate
for Germq South West Africa". '

8. The main elements of the compromise embodied in Article 22
of the Covenant are rendered clear bv the above historical back-
ground. As was commented generaUi by M. Rappard, Secretary
and subsequently member of the Permanent Mandates Commission:

Ibid.,'pp801.02.
' Miller. D. H. The Drofliof IheCovcnnnl(1928).Vol.11.pp. 213-28.
" A draft clause an Mandates war introàuced bv Smuts at the Sixth me et in^
of the League of Nations Commission on 8th ~ebkar~. 1919.As to amendments
to this draft made in the League Commission. vide Miller, opVol.lII. pp. 283.
285. 306.jrj, 323-24 and 355. At the Sixth Meetinga.n attempt was made to
insert the word "if" between the words "as"and "integral" in the provision relating
South Pacific...can bebest administered under the laws of the Mandatory Statethe
as integral partions thereof". After discussion. the word "if" was not inserted.
Vide MiHer.op.cil.Vol. 1. pp.186and 190 and Val. II, p. 273.
' For. Rcl. U.S.: The Paris PcaConlrrencc,1919, Vol. V, p. 508. The 7th May
is the correct date. not the 5th as stated by Applicants on p. 36 of the Mcmoriolr.
' Vide Annex B infraand L. ofN.. 0.1. 121. p. 89. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 221

':The terms of the compromisewere ohvious: President.Wilson
succeeded in preventing annexation; the conquerors in retaining
their conquests".'

More particularly, in retum for the concession that al1 the
German Colonial possessions were brought into the Mandate
System, President Wilson had to abandon certain of the extreme
aspects of his proposals conceming League supremacy and control
and the consequent payment of expenses of Mandateadministration

by League Members. Al1 Mandatories were to be States, not
"organised agencies". The Mandates were to be allocated by the
Principal AUied and Associated Powers (not the League), and at
any rate in the case of the C Mandates the allocation "would have,
to be" to the adjacent claimant States. The relationship between
the League and Mandatories was in each case regulated by a
Mandate agreement, which would normally require mutual consent
for alteration. Al1this was very far removed from the envisaged
free League discretion to appoint and change Mandatories. Again
in the case of C Mandates. the Mandatories were to have powers to

administer the temtories "as integral portions" of their own. And
there would be no objection to eventual amalgamation that could
naturally result from such administration, if agreed to by the in-
habitants. At the Peace Conference President Wilson stressed that

"it wasupto the UnionofSouthAfricato makeit so attractive that
SouthWest Africawould comeinto the Unionof their ownfreewiU.
... If successful administration by a mandatory should lead to
union withthe mandatory, hewouldbe the last to object"; '
and later he said that :

"if South Africa managedsouth West Africa as weli as she had
managed her owncountry, then shewould bemamed to SouthWest
Africa".'

Finaiiy, the "operi door" principle of equal trade opportunities
for Members of the League, althougb originaliy envisaged for ali
Mandates, was excluded in the case of C Mandates.

g. In view of the above features, commentators quite naturdy
referred to C Mandates as being in their practical effect not far
removed from annexation.
Thus, during the First Session of the Permanent Mandates Com-
mission, Mr. Ormsby-Gore, the United Kingdom member, stated:

Varia Poliiica (1953..182.ndates and the International Truçteeship System".
a Vide Lloyd George'sstatement on 30th January, 1919,p6supra.
' Vide Art7 of the "MandateforGerman South-West Africa".
' For. RelU.S.:The Paris P6ncc Corr/rrencc.1919, Vol. II741-42.
Ibid., 788.
Vide final words of 22(6).222 SOUTH WEST AFRICA

". . . this caseofSouth West Africawas, indeed, a typical example of
the complete political incorporation of a mandated tenitory in the
territoj of tiie mandatory Power". '

Margalith wrote:
"It has been found necessary, also, to devise three types of adminis-
tration, and ta give in the case of C Mandates, powers that amount
nearly to annexation. Othenvise the British Dominions could not
have been won over to the acceptance of the mandates pnnciple at
all".

When introducing the Peace Treaty in the British House of Coni-
mons on 3rd July, 1919 ,loyd George stated:
". .. South West Africa, running as it does side by side with Cape
Colony, was felt to be so much a part, geographically. of that arra
that it would be auite imbossible totreat it in thesamewav as vou
wwM a colotiy 2.000 or 3.600 miles away from a centre of adminis-
tration. ï'here is no doubi ai al1lhai SoulhIl'esl Alrica u.ill become
on inieeralbar1of the Ftderatioii of South Africa.It will hc coloni~rd
by pe&le >rom South Afnca. You could not have done anything
eke. You could not have set customs bamers and have a different
system of administration".' (Italics added.)

And Temperley wrote:
"Clearly the development of this territory must in the main come
from the adjoining Union of South Afnca, and its progresswouMbe
seriously hundicappedit ifwereadminisleredas u distinct entity with
separatenatiue,fiscal,and railroadpolicies. As, howeuer,it was feared
thal an ezc~~tionmadein onecase-no matterhowvalid it mieht be-
mighi openiht door to otherk, agtnerul opplrc<itio> i/ the s)&m tias
insisledupon 'Thishad someunfortunate conseqiiencessince, mainly
in order to mcet the special circumstances in South Afnca. a broad
formula had to be ado1)tedwhich uas not completely satisfactor) as
far as other arcas werr concemed". '(Italics addedl

IO. It wiil be observed from the aforegoing that considerable
over-simplification, tending to\r*ardsa \wong impression, is involved
in the Applicants' statement in their Metnorials that:
"The Mandate System, as ultimately givenexpression inArticle 22
of the Covenant of the Leagueof Nations and in the several Mandate
Agreements,represented a victory for the opponents of the principle
ofannexation". '

A compromise can hardly be regarded as a victory for either side.
By itself, the Applicants' over-simplification may be unimportant.
But certain other statements by them demonstrate that negation

' P.M.C..Min.. 1,p.2,.
' Margalith. A. M. The Inlcrnntional Mandalcr (1930). pp. 33-34.
' Isd., Vol.11.pp. 233-34.II. p. 95.
' Applicants' MernoriaIr. p. 33. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 223

of the significance of the compromise couid lead to erroneous con-
clusions.
So, for example, it is unsafe to assume that the Mandate System
as finally agreed upon. and particularly as regards C Mandates,
could be interpreted in tems of quotations from General Smuts'
publication. The quotations setout by Applicants at p. 33 of their
Memorials relate to a proposed System which the author considered

to he totally inappropriate for those temtories which eventually
became C Mandates ' and which could only be accommodated in a
specially adapted System, agreed to by way of compromise.
Similarly there is no justification for Applicants' expression "so
striking a reversal of concept", as applied to a 1920 speech by
General Smuts in which he, in common with the commentators
mentioned in paragraph 9 above, spoke of the relationship between

the Union and South West Africa as being, in effect, close to annex-
ation. This matter will be further dealt with below.
These and other attempts in the Memorials to disparage policies
directed towards closer assimilation between South Africa and the
Territory as being somehow in conflict with duties undertaken by
Respondent, do not accord with the expressed intentions of the
statesmen who created the Mandate System. Respondent accepted
the obligations which the Mandate for South West Africa involved
for it; and it has always regarded compliance with those obligations

as being a matter of importance-according to their letter and
spirit during the lifetime of the League, and according to their
spirit thereafter. But it resents and resists attempts at the unilateral
imposition upon it of suggested duties which were excluded from
those undertaken, and which wouid amount to a repudiation of the
compromise whereby Respondent was induced to agree to the
Mandate System being'iendered applicable at al1 to the case of
South West Africa.

II. The functions of the League of Nations in respect of Mandates
were exercised by the Council, the Assembly and the Permanent
Mandates Commission.

12. The Council was the body to which every Mandatory was
ultimately accountable. It was to the Council that the Mandatories
had to render annual reports, to its "satisfaction".
The Council alone had the power to take decisions and address
recommendations to the Mandatories.

Vide oara5 subrn.
~~~l~cants'~~movinls. p. 38.
' Art.22 (7).
6.g. Art.ofthe Mandate forSouthWest Africa.
Vide The Mandates System-drigin-Princiw-A@licofia (~945).p. 35;
Hall.op.cif..p.174;P.M.C..Min..I.p.5.224 SOUTH WEST AFRICA

Article 4 of the Covenant entitled any Member of the League not
represented on the Council "to send a Representative to sit as
a member at any meeting of the Council during the consideration
of matters specially affecting the interests of that Member." This
provision enabled a Mandatory to be represented when the Council
considered matters relating to its own Mandate and to Mandates
in general.
In terms of Article 5 of the Covenant, decisions of the Council
required "the agreement of al1the Members of the League repre-

sented at the meeting." (Italics added.) Whether a Mandatory
could exercise its vote in the Council in such a way as to frustrate
the unanimous view of aiithe other Members on a matter affecting
its own Mandate, was never raised. In fact no occasion on which
there was such a division of votes ever arose; al1Council decisions
conceming mandates were taken unanimously. lIn this connection
Jennings States that the "invariably careful and even elaboraie
avoidance of an adverse vote frorn the Mandatory" in the Council

is "difficult to understand unless one may assume at any rate the
possibility of a veto in the Mandatory state". a
13. The Assemblydenved its powers in respect of Mandates from
Article 3 of the Covenant in terms of which it could "deal at
its meetings with any matter within the sphere of action of the
League. .."

At the First Assembly a "working basis" was, however, decided
on according to which
"Neither body [Le.the Assembly orthe Council]has jurisdiction
to render adecisionin a matter which bythe Treaties or the Cove-
nant hasbeenexpresslycommittedto the other organofthe League.
Either body may discussand examine any matter which iswithin
the competenceof the League". '

Thus. in respect of Mandates, the Assembly's role wasconfinrd to:
,... the exerciseof a certain moral and very general influencein
this domain. Its functiou may be said to be to maintain touch
betweenpublic opinionand the Council".

14. The Permanent Mandates Commission was instituted by the
Council on 29th Novernber, 1920, pursuant to the provisions of
Article 22, paragraph 9, of the Covenant, in terms of which its
functions were "to receive and examine the annual reports of the
Mandatories and to advise the Council on al1 matters relating to

the observance of the mandates".
' Vide "South-West Atrica-Voting Procedure, Advisory Opinion a/ Junc 7th.
1955: I.C.J. Reports 1955". 100-or(Judge Lauterpacht's Separate Opinion.)
'Jennings. R. Y. "The InternationaCourt'sAdvisory Opinionon the Voting
Procedure on Questions concerning South-West Africa". Grotius Soc., 42..
(1956)P.92.
L. O/N..Assembly, Rac.. 1,320.
' The MandatesSystem4rigin-PrincipleS-Applic p.34icn, 4.226 SOUTH WEST AFRICA

The Commission itself realized and stated that, having adopted
the rule of "absolute independence and impartiality", its Members
should exercise their authority "lessas judges from whom critical
pronouncements are expected, than as collaborators who are
resolved to devote their expenence and their energies to a joint
endeavour". '
Although its powers were purely advisory, the Commission de-
veloped into an effective institution. In this connectioM. Rappard,
-at first Secretary and later for a long time a member of the
Commission-stated :
"As the Commission, thanks tu the personal cornpetence and
generally nmgniad independence of its members, came to enjoy
a real respect and, indeed. uitsome prrstige,an international or
rather a super-nationalrnod.authnrity sprangup ...In its capacity
asa purely advisory body. .. the Permanent MandatesCommission
wers of coercion whatever. As a universally esteemed
groupoO? i'partial and independent experts. however, its powers
of persuasion were indisputably vwy effective. No Mandatory
govemment ...could afiord to disregard its advice for fear of no
other sanctionsbut thoseof public and parliamentary opinion.
The net result was aillinaCO-overation between the Leacue and
the Mandator\.governrnerits;and ihc enhancement of the standards
of administration in the mandattd territorle, and evçn. by a natural
repercussion,in colonialadministrationeverywhere".'
15. There was at al1 times cordial CO-operation between Re-
spondent and the Permanent Mandates Commission. On occasion
difierences of opinion arose-as was the case also with regard to
other Mandated territories-but this was inevitable in view mainly

of uncertaintiesand obscuritiesin a new system, operating under the
somewhat vague terms of the compromise embodied in Article 22
of the Covenant. And with both Respondent and the Commission
approaching their task in the spirit of that compromise, the problems
which arose were always satisfactorily solved.
Applicants' Memorials, on the other hand, contain statements
and allegations suggesting strife between Respondent and the Com-
mission, and even a "hostile" attitude towards the Commission on
Respondent's part. These allegations and suggestions are unfounded,
as will appear from closer scrutiny of the facts to which they relate.
16. At page 37 of their Memorials, Applicants state as follows:

"Annual reports called for in Artic6eof the Mandate for South
West Africawere for alimesubmitted by the Union to the Council
ofthe Leagueof Nations, beginningwith a report for 1919"(.Italics
added.)
Respondent hds it difficult to appreciate why such language
should be used, when the true facts are that Respondent regularly

' L.ofN..0.J..1921,pp.1124-2.5.
Rappard. Varia Polilira184. PRELIMINARY OBJECTIONS OF SOUTH AFRICA
227
submitted annual reports until 1940, after the outbreak of the
Second World War, which brought about a cessation of al1reporting
by Mandatories and of meetings of the Commission.

17. The Applicants state at page 37 of their Memorials that
"the Union was not at first overtly hostile towards the Permanent
Mandates Commission".

Respondent denies the implication that it was at some time
hostile, overtly or otbenvise, towards the Commission. On the
contrary,there is abundant evidence to show that despite occasional
divergencies of view regarding specific matters, Respondent's atti-
tude throughout was one of friendly CO-operation.
So, for instance, Respondent was the first of al1the Mandatories
to be represented at the discussions of the Permanent Mandates
Commission by the officer "personally responsible for the adminis-
tration" of the Mandated territory, namely the Administrator of

South West Africa-which action the Council particularly appreci-
ated and commended to other Mandatories. '
. At Respondent's invitation, the Chairman of the Commission
visited South West Africa in 1935 and made an extensive tour of
the Territory. As far as is known, this was the only occasion on
which a member of the Commission was invited by a Mandatory
to visit a Mandated temtory. Respondent had extended this in-
vitation also tothe Secretary-General of the League andthe Director
of the Mandates Section of the League, but neither could avail
himself thereof.
On many occasions appreciation was expressed, on both sides, of
the relationship and CO-operation between Respondent and the
Commission. As examples may be mentioned the following:

(a) In a letter by General Smuts, dated the 16th May, 1923. to
the Chairman of the Commission, there occurred intea rlia:
"1 also wish to express my appreciation of the valuable work
which you are doing as Chairman of the Permanent Mandates Com-
mission; and 1wish especiallyto thank you and the other members
of the Commissionfor the way inwhichyou have assisted the Coun-
cil ofthe Leaguein order to meet mywishesabout the naturalisation
of the white German inhabitantscifSouth-West Africa. You have
shown great faimess and wisdom in realising the special and ex-
ceptional character of the prohlem in that territory, and 1 thank
you for finally agreeingto the solution which have put f~nvard".~

(b) On 6th June, 1936, the Chairman of the Commission thanked
the South African representative
"for his CO-operationand expressed the Commission'sappreciation
of the cordiality, sincerity and loyalty shown by the accredited

'L. ofN..O.J. .924,p. 1287.
'P.M.C.. Min..XXVII, p. 153
aIbid.. III. 215.228 SOUTH WEST AFRICA

representative of the Mandatory power. It was a matter for satiç
faction that there was such close CO-operationbetween the Com-
missionand the Union". '

(c) In his address of 9th April, 1946.tothe Assembly of the League
in its final session, the South Afncan representative stated:
"it isgenerallyrecognisedthat the Leaguedischargedits supe{visory
functions in respect of mandates with high seriousness, sktll and
success.For twenty years, as one of the mandatory Powers, South
Africa worked in close CO-operationwith the Permanent Mandates
Commission,and we are proud of the fact that our relations with
that body have aiways been both happy and cordial". '

Again the reason for the language in the Memorials, as above
cited, is difficult to appreciate.
18. The Applicants state at page 37 of their Memorials that

"Officiais of the Union Government viewed the mandate as
tantamount to annexation".
They then quote, at the same page, two extracts from a news-
paper report of a speech made by General Smuts at Windhoek in
September, 1920, the first being that he

"emphasised that the Leagueof Nations had nothing to do with the
giving of the Mandates",

and the second
"In effect, the relations between the South West Protectorate
and the Union amount to annexation in al1but name".

This the Applicants then describe as
"so striking a reversai of concept towards the Mandate System".

In regard to the first of the above extracts, General Smuts was
speaking of the allocation of Mandated temtories by the Principal
Allied and Associated Powers. His address was delivered some
months pnor to the execution of the Mandate instrument.' In
regard to the second extract, Respondent has already pointed out '
that General Smuts's description accorded with that of other
commentators, and that when regard is had to the nature of the
compromise amved at in respect of C Mandates, no "reversal of
concept", "striking" or othenvise, was involved. That General
Smuts, in the passage in question, was concemed only with the

+ractical effectof thC Mandate, and was in no way seeking to evade
the significance of the safeguards envisaged in the interests of the

' Ibid.. XXlX. p. 137.
' L.O/N..O./. ,PCCS.UP.NO.r94, p32.
Vide para.sup*n.
' 17th December, igzo-uidpara7supra.
' Para.iosupra read withpara.supra. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 229

native population, or of League supervision in respect thereof,
appears from the context of the whole address as reported, as well
as from a letter wntten by him on the subject to M. Rappard on
the 4th July, 1922. In the report of the speech there occurs, inter
alia, the following:

"... the mandate wasa newidea in International Law, and there-
fore it was only right that a full explanation should be given at this
stage. He emphasised that the League of Nations had nothing to do
with the giving of mandates, whichwerealreadysettledas a fact by
thePeaceTreaty,quite apart from the League of Nations.
Under the Peace Treaty Germany had renounced her colonies
not to the League of Nations. but to the Great Powers. Article 119
of the Treaty made that clear. Th GreatPowerspasseda resolution
of South-WestAfrica themandatemasgiventa the Union. This man-e
date was accepted by the Union Parliament. The League of Nations
was only concerned in one way, namely to define the scope of the
mandate in any particular area .. . The Prime Minister then quoted
the relevant portion of the Peace Treaty providing for the govern-
ment under the laws of the Mandatory. Subjectto safeguards,the
Union Government had complete authority over South West Africa,
not as a separate territory, but as an integral portion of the Union,
as though it were Union territory, with safegwrds for the natives
against slauery, trafic in arms, liquor and military training-the
controlO/ these safeguardslying with the League of Nations. The
Union Govemment could extend to South-West Africa its legal,
judicial, administrative and financial systems, its Civil Service, its
police, and its Railway Administration, and it could declare South-
West Africa a Province of the Union and could give Parliamentary
representation, the onlylimit being in regard to natives.
In effect, the relations between the South-West Protectorateand
the Union amount to annexation in al1but name. Without annexa-
tion the Union could under the Peace Treaty do whatever it could
have done in annexedtmritory, sauf:thereserwationof thenatives".'
(Italics added.)
In his letter to M. Rappard, Generai Smuts pointed out that

he had addressed the German section of the population and had
explained to them "the futility of looking to the.Fatherland and
the necessity of throwing their lot in with the people of the Union".
He added.:
"1 have explained to them that the Union has full powerof legis-
lation and administration over South-West Africa as an integral
portion of the Union, and that the effect is very much the same as
if they were incorporated into the Union, subject of course tothe
full safeguards in the interests of the native population. In al1this.
1have confinedmyself to the strict letter of Articl22. . . .
Do not for a momentthink that in my ideas or proposaisI depart
/rom thesystemof mandates,which 1 consider one of the most bene-

P.M.C., Min., II. 92,230 SOUTH WEST AFRICA

ficent advances in international law. We mustonly recognis~the fact
that C mandates arein effectnot fur removed/rom annexation.The
case is, of course.quite different with the other two far more im-
portant types of mandates".' (Italics added.)

In the light of these facts, apparent in full from the Minutes of
the Permanent Mandates Commission as referred to by Applicants
themselves at page 37 of the Memorials, there can again be no
justification for the Applicants' language in question.
19. Applicants state at page 38 of the Memorials that the Perma-
nent Mandates Commission "felt obliged on more than one occasion
to cal1 the Union to task with respect to its attitude toward the

legal status of the Terntory." Applicants then proceed to aliege in
this regard that
". . . when the Union concludeda seriesof Agreementswith Por-
tugal regarding the boundary between An ola and South West
Africa,the Commission drewattention to thefactthat inthe Prearn-
ble to one such Agreement, the Union asserted 'full sovereignty
over the territory ofSouth West Africa,latelyunder the sovereignty
of Germany'." (Italics added.)

As a fact Respondent in the Preamble did not assert "full" sover-
eignty: the word "full" was not used and the word "sovereignty"
was qualified by the words "subjectto theterms of thesaid Mandate."
The relevant part of the Preamble reaci:
"And Whereasunder a mandate issued by the Council of the
League of-Nations in pursuance of Article 22 of the Treaty of Ver-
sailles, the Govemment of the Union of South Africa, subjeclto the
terms of thesaid mandate.possessessovcreigntyover the Tenitory
of South-West -Africa (hereinafter referred to aç tbc Terntory)
lately under the sovereignty of Germany".' (Italics added.)

A lengthy controversy did arise, with reference to this Preamble,
as to the meaning to be assigned to the word "sovereignty". There
followed discussions and correspondence, which as a result of mis-
understandings were protracted. Part- only of these is quoted by
the Applicants. A full account, as recorded in the official records of

the League-but which would needlessly lengthen this statement-
shows that the difficulty related mainly to the meaning to be
assigned to the word "sovereignty" in the context of Mandates.
This was a question dealt with at great length by many authorities,
who arrived at a vanety of conclusions. Wright mentions at least
ten theories.
As far as the League was concemed, M. Hymans had in 1920, in
a report adopted by the Council on 5th August, 1920, stated as
follows:

'Ibid., p. gr.
'L. O/N., 0.1.,926,p. 1533
Op. cilpp. 319.39. PRELIMINARY OBJECTIONS OF SOUTH AFRICA
231
"The degree ofauthority, control or administration is, so far as
'B' or 'C'Mandates are concerned, a question of only secondary
importance.
In the former case,as in the latter, the Mandatory Pawer will
enjoy. in my judgment,a full exerciseofsovereignty,in so far as such
exerciseis consistent with the carrying out of the obligations im-
posedhy paragraphs 5 and 6." '(Italics added.)

There was, however, no attempt in the League to define where
sovereignty, in the traditional sense of absolute power, was lodged
in regard to Mandates. In this regard, the above report by
M. Hymans had stated: ..

"1 shallnot enter intoa controversy-though this wouldcertainly
be very interesting-as to where the sovereignty actually resides.
We are face to face with a new institution. Legal endition will
decide as to what extent it can apply to this institution the older
juridical notions.''

Similar sentiments on this aspect of the matter were expressed
by M. Beelaerts van Blokland in a report adopted by the Council
on 8th September, 1927. and also in a further report by M. Procopé
adopted on 6th September, 19zg.' The different senses in which
the word "sovereignty" could be used, contributed to the mis-
understandings involved in the lengthy discussions and exchange

of communications between the Commission and Respondent.
What is. however, of importance, is that ailsuch misunderstand-
ing was resolved through the acceptance by Respondent, in a letter
of 16th April, 1930, of the above reports of M. Beelaerts van
Blokland and M. Procopé,which wen: to the effect, inter alia, that
"sovereignty in the traditional sense of the word does not reside in
the Mandatory Power."
In the light of this outcom'eof the exchange of communications
between the Commission and Respondent conceming the question
of sovereignty, Respondent finds it difficult to understand why

Applicants' Memorials, at page 39, leave this matter on the note of
" 'no clear reply to this question' ", " 'regrettable misunderstand-
ing' " and "its [Respondent's] assertion of the possession of sover-
eignty over the mandated territory."
20. With regard to the reference at page 39 of the Applicants'
Memorials to an "intention to incorporate" the Territory, Re-
spondent's view has consistently been that closer association

between South West Africa and South Africa was in accord-
ance with the compromise arrangement regarding C Mandates as

1 Zbid., p.185.cil, Min., VIII, p. 183.
L.o/N.,O.J.. i927.p. 1120.
' Ibid.. 192p.1467.
Zbid.. 1930. pp. 838-39.232 SOUTH WEST AFRICA

contained in Article 22 and given effect ta in the Mandate instru-
ment for South West Africa. '
In September, 1920, General Smuts saw the constitutional de-
velopment of South West Africa as follows:
"The policyofthe Governmentwould beto carry out the mandate.
South-West Africa would always be a separate unit as a large
country, but it was impossibleto run it as a province at the present
time, though later, no doubt, it wouldbecomeone,with a Provincial
Counciland membersin the HouseofAssembly,but firstotherstages
would have ta be passed through. The first would probably be an
Advisory Council to be appointed to advise the Administrator.
Sot long after that. the Councilwould become an elected council,
and in due course there would be a full Parliamentary system". '

Although Respondent during the existence of the League never
made any forma1 proposals, either for the incorporation of South
West Africa as a fifth province or othenvise, incorporation was
from time ta time strongly urged by sections of the inhabitants of
the Territory. This pressure from within the Territory arase mainly
as a counter to events in the 1930's-the claims of Germany under
Hitler to the restoration of the former German colonies and the
insistence on the part of the German section of the population in
South West Africa that this would sooner or later be achieved.
M. Rappard in 1934 called this agitation for incorporation "a very
natural reaction". J
The statement of M. Rappard referred ta at page 39 of the
Memorials was made in 1925. It did not relate to any concrete
proposa1 or intention and, in fact, constituted speculation on a
purely hypothetical basis. Consequently Sir Frederick Lugard con-
sidered that in the absence of a concrete proposal, this discussion

was beyond the Commission's competence. '
In the circumstances the phrase "the proposal" at page 39 of the
Memorials is not understood, nor does Respondent understand the
allegation that such a proposa1 (sic) "frequently drew the Com-
mission's attention."

21. The purport of the quotation given by the Applicants at
pages 39 ta 40 of their Memorials, will be better understood when
that quotation is read in the context of the full paragraph in which
it appeared. That paragraph read:
"The Commissionwas informed by the mandatory Power that
the latter has appointed a special Committee to study certain
constitutional problems raisedby a motion ofthe LegislativeAssem-
bly of the temtory airning at its incorporation as a 'fifth province
of the Union'.It noted. in particular. that this committee is take

Vide para. 8 rupro.
' P.M.C.. Min.. II, gz.
a Ibid.. XXVI.p. 50.
' lhid.. VI, p. 60. PRELIMlNARY OBJECTIONS OF SOUTH AFRICA
233
account, inter alia, 'of the character of the territory as a mandated
territory and the niles of international law governing the mandate'.
The Commission noted with satisfaction the statement bv the
accredited representative that the ;andatory Power will no; take
anv action in this resoect until it has first communicated its inten-
tions to the League 0%Nations.
As the guardian of the integrity of the institution of mandates,
the Commissiontherefore expects to be informed of the mandatory
Power's views on the questiori, which it will not fail to subject to
that careful examination that its international importance demands.
The Commission wishes, on this occasion, to draw attention to
the mandatory Power's fundamental obligation to give effect,not
only to the provisions of the mandate, but also tothose of Article22
of the Covenant." ' (Italics added.)

M. Rappard indicated the attitude of Members of thecommission
when he said:
". ..he deeply appreciated the statements made by the accredited
representatives. The attitude of the Union Government in this
mâtter had now been fullv and com~letelvdefined. Last vear. there
had been some misiin<lrr<anding OR the'subject, becauie the pre-
i.iousaccrcdited represcntati\,e h3d ûpparently not felt authoned to
make definite statcments. There had been no 1:ickof goodwill on
his part. and this observation implied no criticism of Iiis attitude.
It was. howe\,er.3 matter of con~ratulation ttiat so fula statement
had now been made. This statemënt went a lone wav to create that
mutual confidencebetween the Mandates ~omnksi& and the man-
datorv Power which was so necessaw for the successof their mutual
effort?""

Thus as regards the Mandatory's attitude, the Commission ex-
pressed, not "mi~givings"~, but "satisfaction".
Applicants state at page 40 of the Memorials "in the meantime
the Union had established 'a South West Africa Commission' .. .to
deal further with the matter of incorporation". In fact this Com-
mission was the body referred to in the observations of the Perma-
nent Mandates Commission, above quoted, as a "Comrnittee to study
certainconstitutional problems." Its appointment had been notified
to the Commission by Respondent. and the observations of the
Commission arose from the discussion of that very notification.

The Commission's subsequent observations referred to by the
Applicants at page 40 of the Memorials, read in full:
"The Commission noted the statement in the annual feport
(page 4)that the mandatory Power 'isof opinion that to administer
the mandated territory as a fifth province of the Union subject to
the terms of the mandate would not be in conflict with the terms
of the mandate itself'. It also notecl that the mandatory 'feelsthat
sufficientgrounds have not been adduced for taking such a step'.

' Ibid., XXVII, p.zîp.
aAs is allegedby Applicants at p.jg of Mcmoriols."4 SOUTH WEST AFRICA

The Commissiondoes not express any opinion as to a rnethod of
administration the scope of which it has had no opportunity of
judging and the adoption of which, accordingto the statement of
the mandatory Power, is not contemplated; it confinesitself to
making al1legal reservationson the question". '

In the absence of any specific proposal, the Permanent Mandates
Commission could hardly be expected to take any other course
than to reserve its position, as it did. The significance which the
Applicants attach to this reservation is therefore not understood.
Respondent has never made a secret of its conviction that closer
association between South Africa and South West Africa would
best serve the interests of the inhabitants of South West Africa. It
held that view before Versailles and reassessment in the light of
subsequent events has not led to any other conclusion. Respondent
sees nothing wrong, sinister or strange in seeking that closer

association.
There is, however, no justification for Applicants' statement at
page 40 of their Mernorials that
"the question of the legal status of the Territory was perhaps the
most seriousarea of disagreement persistingbetweenthe Unionand
the Permanent MandatesCommission".

As appears from the facts aforestated, there was no "area of
disagreement persisting" as regards "the legal status of the Temto-
"; and Respondent is not aware of any "area of disagreement",
Terious" or othenvise, "persisting" in regard to any other matter.

22. Applicants allege at page 40 of their Mernorials that the Per-
manent Mandates Commission "repeatedly deemed it necessary to
criticize other phases ofthe Union's administration ofthe Temtory"
-and they then list fiveaspects of administration, giving references.
For reasons stated in paragraph Iabove, Respondent does not deal
here with the substance of the aliegations, other than to state that
neither the references cited by Applicants nor the other records of
the League support the allegation that the Commission had "re-
peatedly criticized aspects of its administration of South West
Africa. It was the duty of the Commission to express its views on
the administration, and complete agreement at al1 times between

the Mandatory and individual memhers or even the Commission as
à whole could not possihly be expected. Yet, individual differences
'whiclidid anse from time to time, were remarkably few and they
were invariably settled to the satisfaction of the Commission, the
Council and the Mandatory.

.-
'Ibid., XXXI, p.192. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 235

THEPERIOD OF TRANSITION 1945-1946

Establishmentofthe United Nations

23. The establishment of the United Nations Organisation result-
ed largely from inter-Allied CO-operationduring the Second World
War. The name "United Nations" had been adopted by the Allies
in thelater stages of the war and used in declarations, such asthat
of the 1st January, 1942, at Washington, pledging war-time co-
operation. The prospect of establishing a new international organ-
isation for the preservation of international peace was mentioned
in a declaration signed on the 30th October, 1943, at Moscow, by
the representatives of four of the major Ailied Powers, viz. the
Union of Soviet Socialist Republics, the United States of America,
the United Kingdom and China. The first bluepnnt of the organi-

sation was prepared during discussions in the period August to
October, 1944, at Dumbarton Oaks, Washington, in which the said
four powers participated. Following on these discussions there was
published the proposal inter dia that the key body in the contem-
plated organisation was to be a Security Councilon which the "Big
Five" powers (being the above four and France) were to be perma-
nently represented. During the Yalta Conferenceof February, 1945,
between President Roosevelt of the United States of Amenca,
Prime Minister Churchill of the United Kingdom and Premier Stalin
of the Soviet Union, came an announcement that the question of

voting procedure in such a Security Council had been settled and
that "a conference of United Nations" should be called to meet at
San Francisco to prepare a charter for "a general international
organisation to maintain peace and security . .. dong the lines
proposed in the informa1 conversations of Dumbarton Oaks".
A conference of delegates of fifty nations was held at San Fran-
cisco between the 25th April and the 26th June, 1945, at which
the Charter of the United Nations was drafted, unanimously agreed
upon and signed by al1the representatives. It came into force on
the 24th October, 1945, when, as required by Article IIO thereof,
the five Powers that were to be permanent members of the Security

Council and a majority of the other signatory Stateshad filed their
ratifications.1
24. ~uring the aforesaid events the League of Nations was still
in existence; and it continued to exist side by side with the new
organisation until Apnl, 1946.
There was no suggestion that the United Nations was to be the
League under a new name, or an automatic successor in law to
League assets, obligations, functions or activities. Indeed, two of

the major powers which played a leading role in the establishment
of the United Nations, and were to be permanent memben of the
Evcryman's Uniled Nations (6th ed.).4-5.Vide-also Gaodnch, L. M. and
Hsmbro. E. Chnr(cr of Unitzd Nations (2nd e.p. 3-18.236 SOUTH WEST AFRICA
Security Council, were known to be strongly averse to any notion
of automatic succession. They were the Soviet Union, which had
been expelled from the League in December, 1939, and the United
States of America, which had never been a Member of the League.

In terms of Article 3 of the Charter, the original Members of the
United Nations were the States which, having participated in the
San Francisco Conference or having signed the Declaration by
the United Nations of 1st January, 1942, also signed the Charter
and ratified it in accordance with Article 110. There were 51 such
original Members of the United Nations, of which 17 were not at
that tirne (1945-1946) Members of the League. They were:

Byelomssian Soviet SocialistRepublic, Chile,Costa Rica, El Salva-
dor, Guatemala. Haiti, Honduras. Lebanon. Nicaragua, Paraguay,
Pem, Philippines, Saudi Arabia, Ukrainian Soviet Socialist Repub-
lic, Union of Soviet Socialist Republics. United States of America,
Venezuela.

Of those 17, six had never been Members of the League. They
were :
ByelorussianSoviet Socialist Republic,Lebanon. Philippines,Saudi
Arabia, Ukrainian Soviet Socialist Republicand United States of
America.

Al1 the others (except the Soviet Union) had many years before
withdrawn from the League on notice. '
Further, of the 42 Members of the League of Nations at that
time, II were not original Members of the United Nations. They
were :

Afghanistan,Bulgaria, Estonia, Finland, Ireland, Latvia, Lithuania,
Portugal, Siam (Thiland), Swedenand Switzerland.

Four of these, viz. Switzerland, Litbuania, Latvia and Estonia,
never becarne Members of the United Nations. The others were
admitted to membership at various times, in some cases years after
the establishment of the United Nations.
As a result of the admission of new Members, United Nations
membership grew to 99 as at the end of 1960. Although 14 of these
new Mernbers had at'some stage or another been Members of the
League, the other 34 had never been.

25. At the San Francisco Conference, during the discussions
concerning- the provisions of the Charter relative to a proposed
Tmsteeship System, 3 the South African representative made the

following statement :

' Fordates vide Waltem. F. P. A Hist01the Lcoguc of Notions (1952). Vol.1,
PP.64-65.
Vide date in Eurryman'r United Nations (6th ed.). p. 6.
In Cornmittee 11on 11thMay. ,945. PREI.IMINARY OBJECTIONS OF SOUTH AFRICA
237
"1 wish to point out that there are territories already under
Mandate where the Mandatory principle cannot be achieved.
As an illustration,1 would refer to the former German territory
of South West Africa held by South Africa under a 'C' Mandate.
The facts with regard to this territory are set out in a memoran-
dum filed with the Secretariat, whicli1 now read:
When the disposal of enemy territory under the Treaty of Ver-
sailles was under consideration. doubt was exoressed as tothe suita-
hility of the Y:iiidator\~ forni of iidrniniara'tion for the territory
wliich lormerlv constitutcd the (iermnn Protectorate of South \Vest
Africa.
Se\.erthcless, un 1711Dçcember. 1920.by agreement bctween [lie
Principal Allitd and Asjociated Powers and in iiccord:ince with
nrhlan<latc (comrnonly rcferred to aseaiiC Mandate) was conferredeaty,
upon tlie Covçrnrnent of tlie l'nioii of South Africa to iidniinisttr
the said territory.
Under the Mandate the Uninn of South Africa was granted full
power of administration and legislation over the territory as an
integral portion of the Union of South Africa, with authority to
ap ly the laws of the Union to it.
For twenty-five years, the Union of South Africa has governed
and administered the temtory as an integral part of its own temtory
and has promoted to the utmost the material and moral well-being
and the social progress of the irihabitants.
It has applied many of its laws to the territory and has faithfully
performed its obligations under the Mandate.
The territory is in a unique position when compared with other
temitories under the same form of Mandate.
It is geo raphically and strategically a part of the Union of South
Afnca, anrfin World War No. 1 a rebellion in the Union was fomen-
ted from it. and an attack launched aeainst the Union.
It is in iarge measure economically dependent upon the Union,
whose railwavs serve it and from which it draws the g-eat bulk of its
supplies.
Its dependent native peoples spring from the same ethnological
stem as the great mm of the native peoples of the Union.
Two-thirds of the European population are of Union origin and are
Union Nationals, and the remaining one-third are Enemy Nationals.
The territory has its own Legislative Assembly granted to it by
the Union Parliament, and this Assembly has suhmitted a request
for incorporation of the territory as part of the Union.
The Union has introduced a progressive policy of Native Admin-
istration. including a system of local government through Native
affairs; and under Union Administration Nativegement oReserves have
reached a high state of economic development.
In view of contiguity and similarity in composition of the native
peoples in South West Africa the native policy followed in South
West Africa must always be aligned with that of the Union, three-
fifths of the population of which is nat'ive.
There is no prospect of the territory ever existing as a separate
state, and the ultimate objective of the Mandatory principle 1s
therefore impossible of achievement.238 SOUTH WEST AFRICA

the Mandate should be terminated and that the temtory should hethat
incorporated as part of the Union of South Africa.
As temtorial questions are however reserved for handling at the
later Peace Conferencewhere the Union of South Africa intends to
raise this matter, it is here only mentioned for the information of
the Conferencein connection with the Mandates question". '

26. The significance of the above statement appears further from
an extract from a later statement by Field-Marshal Smuts, which
can conveniently-although out of historical sequence-be cited
here. Addressing the Fourth Committee of the General Assembly

of the United Nations at itsfourteenth meeting on 4th November,
1946, Field-Marshal Smuts stated, ider alia:
"It was . . . incumhent on the Union Go\.ernment as tnistee of [lie
interats of the peopleof South West Africa to ensure that, urhenthe
proper time amved for consideration of any change in the status of
the Temtory, such consideration should not be prejudiced hy any
prior commitment on the part of the Union Government by virtue
of its membership of any organization which might replace the
League of Nations; Accordingly, in May 1945. when questions
relatin to trusteeship were under consideration by the San Fran-
cisco fonference, the Union Government entered a reservation
designed ta ensure that the future status of South West Afzicaand
the desirability of its incorporation in the Union should not be
prejudiced by any roposals adopted by the Conference inregard ta
the future of man Xated Temtories. The text ol this reservation is
given in Para raph I of Document A/1z3. In the event, however,
the Charter Ofthe United Nations by the use of the term 'may'
instead of 'shall' in Article 77 excluded any obligation to place
Mandated Territories under trusteeship and made the application
of the tmsteeship system to such territories a matter of.voiuntary
agreement. This no doubt accounts for the fact that in addition to
South West Africa three other Mandates-Transjordan, Palestine
and the Japanese Pacific Islands-have so far been excluded from
the Tmsteeship System". '

1 The official records of the San Francisco Conference contain only a brief sum-
mary of this statement(U.N.C.I. Do.s. Vol. io,p. 434The text quoted here
is taken from the original typewritdoeument from which the South African
representative, DD. L. Smit. read the statement in the Committee on Trusteeship
on xrth May, 1945which accordswith an unofficial verbatim record in the custody
representativentains also the following paragraph whieh is. however, not reflected
in the unofficial verbatim record:

but I am directed to mention it for the information of the Conference so that
South Afnca may not aftenvardbe heldtohave acquiesced in the continuance
of the Mandate or the inclusion of the terriin any farm of trusteeship
under the new International Organiration."
Dr. Smit affirms that he made the whole statement as it appears in Respondent's
records.
G.A.. O.R.. First SLSecd Part, Fwrlh Comm..Part 1. p. 239. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 239
27. Towards the conclusion of the San Francisco Conference, on
25th June, 1945, there was estabiished a Preparatory Commission

of the United Nations, consisting of one representative of each
signatory State. l The functions entrusted to it were to convoke the
General Assembly in its first session, to prepare the provisional
agenda, documents and recommendations for the first sessions of
the principal organs of the Organisation, and to do certain other
defined preparatory work pending establishment of the Secretariat. a
One of these items of preparatory work was to:

"Formulate recomrnendations concerningthe possibletransfer of
certain functions, activities, end assets of the League of Nations
whichit may be consiàereddsirable for the new Organisationto
take over on terms to be arranged. a
The Commission first met on 27th June, 1945, at San Francisco. ,

And when its Second Session opened on 24th November, 1945, in
London, it had before it a Report by its Executive Committee, '
which was composed of representatives of the Governments of
fourteen States. This report served as a basis for the work of the
full Commission, which rendered its own report on 23rd December,
1945, ='setting out therein inter dia recommendations concerning
the agenda and proposed resolutions for the First Part of the First
Session of the General Assembly, which was held in London from
10th January to 14th February, 1946.

28. The Commission's task in regard to the possible transfer of
certain functions, assets and activities of the League to the United
Nations, was carried out in the following stages:
(a) A sub-committee of the Executive Committee made certain
recommendations, cited in Section 3 of Chapter IX of the latter's

report. The sub-committee recommended, with certain exceptions
and qualifications, the transfer of the functions. activities and assets
of the League. Among the exceptions were the political functions
of the League; and the sub-committee also indicated that:
"Since the questions arising fromthe windingup of the Mandate
system are dealt with in Part III, Chapter IV, no recommendation
on this subject is included here". '

In regard to functions arising from Treaties; the sub-committee
iecommended the adoption of a resolution by which the United
Nations should express their wiiiingness to exercise functions and
powers previously entrusted to the League, reserving, however, the
right to decide which functions and powers they were prepared to
take over and to determine which Organ of the United Nations, or

' U.N.C.I.O. Docs.. Vol. 5, pp. 300, 315 and Vr.p. 630.
* Ibid., Vol5.pp. 300. 316.
Ibid..p.316. item (c).
' Doc. FC/EX/ir)/Rev. r. 12th November. ,945.
' Doc. PClzo. ~3rd December, 1945.
' Doc. PC/EX/lr3/Rev. I,Chap. IX. sec.3. paras. 2,and 5.p. 110.240 SOUTH WEST AFRICA
Specialised Agency associated with it, would exercise the functions
or powers taken over. 1 Added to this recommendation was the

foUowing:
"The transfer to the United Nations of functions or powers en-
trusted to the League of Nations by treaties, conventions, agree-
ments or instruments having a political character, wouldif the par-
ties to these instmments desire, be separately considered in each
case":

As regards possible transfer of functions and activities as weUas
of assets, the sub-committee suggested the appointment hy the
Preparatory Commission of a small committee to negotiate with
the Supervisory Commission of the League of Nations regarding
"the parallel measures that should be adopted hy the League of
Nations and the United Nations".

(b) The Executive Committee's recommendations. as set out in
Sections I and z of Chapter IX of its Report, reveal acceptance in
substance of the sub-cornmittee's recommendations. Recommen-

dation No. I of the Executive Committee read as follows:
"1. that the functions, activities and assets of the League of
Nations be transferred to the United Nations with such exceptions
and qualifications as are made in the report referred to above, and
without prejudice to suchaction as the United Nations may subse-
uently take with the understanding that the contemplated transfer
joes not include the political functions of the League, which have
in fact already ceased, but solely the technical and non-political
functions;" '

A footnote relative to exceptions and qualifications read in part:
"The Committee recommends that no political uestions should
be included in the transfer. It mkes no recommenktion lotransfer
the nctiuities concernin refugees, mandates or international bu-
reaux".+ (Italics addedj

Section z of this Chapter of the Executive Committee's Report
contained a draft Resolution for the General Assembly, conceming
the assumption by the United Nations of functions of the League
under International Agreements. It .distinguished between :

"A. Secretanal Functions";

"B. Functions and Powers of a Technical and Non-Political
Character" ;and
"C. Treaties and International Conventions. Agreements and
other Instruments having a Political Character".

'Ibid.. para. 8.p. riz.
Ibid.. para10,p. II%.
Ibid.. paras32and 33, p. rr4.
Ibid., p108. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 241
In regard to A and B it suggestecl an expression of willingness,

subject to the reservations mentioned by the sub-committee, to
ensure continued exercise of functions and powers. In regard to C
it suggested the following:
"The GeneralAssemblyof the United Nations decidesthat it will
itself examine or willsubmit to the appropriatergan of the United
Nations any request from the parties that the United Nations

should take over the exercise of functions or powers entrusted to
the League of Nations by treaties and international conventions,
agreements or other instruments having a politicalcharacteru.'
The sub-committee's recornrnendation that a small Committee be

appointed to negotiate with the League supervisory Commission
regarding parallel measures, was endorsed.
(c) Discussions in the Preparatory Commission itself revealed
that two delegates in the Execiitive Committee had voted against
acceptance of Chapter IX of its Report, and also that there was

concem amongst some delegates about the possibility that the word
"transfer", asused in the recomrnendations concerning functions
and activities of the League, coiild "imply a legal continuity which
would not in fact exist", resulting in a suggestion that the phrase
"the assurnption of responsibility for certain functions and activi-
ties" might be adopted. ' This was eventually done, "ith the

further substitution of "powers" for "activities". The recommen-
dations of the Commission, relative to functions and powers, in the
form as finally adopted by the General Assembly in its Resolution
XIV (1)of 12th February, 1946, read as follows:

"TRANSFER OF CERTAIN FUNCTIONS A,CTIVITIES AND
ASSETS OF THE LEAGUE OF NATIONS

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

Under various treaties and international conventions, agree-
ments and other instruments, the Leagueof Nations and its organs
exercise, or may be requested to exercise, numerous functions or
powers for the continuance of which, after the dissolution of the
League, it is, or may be, desirable that the United Nations should
provide.
Certain Members of the United Nations, which are parties to
someoftheseinstmments and are Membersofthe LeagueofNations,

1Ibid.. p110.
Ibid.. p109(last para. of 1)..
V.N. P.C. .ornmitire 7, Summary Records. i,p.2
*Ibid.. para. 3, 2-3.
Ibid.. pp10-11.242 SOUTH WEST AFRICA

have informed the General Assembly that, at the forthcoming
sresolution whereby the Members of the League would, so far as this
is necessary,ssent and give effect to the steps contempiated below.

Therefore:
I. The GeneralAssembly 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 special-
ized agency brought into relationship with the United Nations
should exercise each particular function or power assumed.
z. The GeneralAssembly records that those Members of the
United Nations which are parties to the instruments referred to
above assent by this remlution to the steps contemplated below and
express their remlve to use their good officesto secure the co-oper-
ation of the other parties to the instmments so far asthis may be
necessary.
3. The GenerulAssembly declares that the United Nations is
willin in principle, and subject to the provisions of this resolution
and Of the Charter of the United Nations, to assume the exercise of
certain functions and powers previously entmsted to the League of
Nations, and adopts the following decisions, set forth in A, B, and
C below.
A. Functionsperfainingto a SecreIariat

B. Functions and Powers of a Technicaland Non-PoliticalCharacter

Amongtheinstruments referred to at the beginning of this reso-
contain provisions, relating to the substamce of the instruments,
whose due execution is dependent on the exercise, by the League of
Nations or ~articular oreans of the Leaeue. of functions or wwers
conferred Gy the instrÙments. certain-of these instmmeits are
intimately connected with activities which the United Nations will
or may continue.
It is nec-, however, to examine carefuliy which of the organs
of the United Nations or which of the specialized agencies brought
into relationship with the United Nations should, in the future,
exercise the functionsand powers in question, in sofar as they are
maintained.
Therefore:

TheGeneralAssemblyis willing, sub'ect to ttiese reservations, to
take the necessarv measures to ensure t,econtinued exerciseof these
functions and piwers. and refers the matter to the Economic and
Social Council.
C. Functionsand PowersunderTreaties,Intmratid Conventions,
Agreements and Otb InsIrumenkiHaving a Political Charncln

The GeneralAssembly will itself examine, or wiii submit to the
appropriate organ of the United Nations. any request from the PRELIMINARY OBJECTIONS OF SOUTH AFRICA 243

parties that the United Nations should assume the exerciseof func-
tions or powers entmsted to the League of Nations by treaties,
international conventions, agreementsand other intruments having
a political character . .1

Regarding transfer of &sets, the Preparatory Commission on
18th Decernber, 1945 set up a committee
"to enter, on its behalf, into discussion with the League of Nations
Supervisory Commission, whichhas been duly authorized by th^
members of theLeague of Nations. for the purpose of establishii.;
a common plan for the transfer of the assets of the League to the
United Nations on such terms as are considered just and convenient.
This plan willbe sub'ect, so far as the United Nations is concemed,
to approval hy the deneral Assembly".'

It wiilbe observed that the task of this negotiating committee
was confined to assets. the earlier recommendations of the Executive
Committee and its sub-cornmittee (sub-paras. (a) and (b)above) not
being followed insofar as they related to functions and activities
-0stensibly inasmuch as the conception of a "transfer" of certain
functions and activities had been abandoned in favour of one of

"assumption" of certain funetions and powers.
The Commission's recomrnendation regarding assets was merely
that the plan to be developed as a result of the discussions should
be submitted for approval to the Generai Assembly. This was done
at the First Part of the First Session, the General Assembly ap-
proving of the common plan in Part III of Resolution XIV of 12th
February, 1946 (supra).

29.(a) It will be recalled that the sub-committee of the Executive
Committee stated in its recommendations that "questions arising
frorn the winding-up of the Mandate System are dealt with in
Part III, Chapter IV" of the Executive Committee's Report. '
(b) Reference to Chapter IV of its Report reveals that the Execu-
tive Comrnittee, in view of possible delay in constituting the Trustee-
ship Council in terms of Article 86 of the Charter, recommended
that the General Assembly create a Temporary Trusteeship Com-
rnittee "to carry out certain of the functions assigned in the Charter
to the Trusteeship Council, pending its establishment".
One of the functions proposed for such a Committee was to

"advise the General Assembly on any matters that might arise
with regard to the transfer to the United Nations of any functions
and responsibilitieshitherto exercisedunder the MandatesSystem".'

'C.A. RerolufioXIV(r). rzth Februiiry1046inU.N. Doc. A164.
' Doc.PC/%o p. 118.
Ibid.
' Vide para28(a) rupro.
' DOC.PCIEXIII~IR~V. 1.Chap. IV.sec.z, para.j.p. 55.
' Ibid.. para. 4 (iv). p. 56.2‘l‘l SOUTH WEST AFRICA
And in Section 3, para. 9, there was included in the proposed
Provisional Agenda for the Temporary Trusteeship Committee:

"Problems arising from the transfer of functions in respect of
existing mandates from the League of Nations to the United
Xations".
This is probably what the sub-Committee of the Executive Com-
mittee had in mind in speaking of "Part III, Chapter IV" of the

Executive Committee's report.
(c) The recommendations regardinga Temporary Trusteeshjp Com-
mittee were,however, not accepted by the Preparatory Commission.
They were replaced by a recommendation that the General Assembly
should adopt a resolution caiiing on States administering territories
under League of Nations Mandate to undertake practical steps for
snbmitting trusteeship agreements in respect of them "preferably
not later than during the Second Part of the First Session of the
General Assembly". ' The recommendation proceeded:

"Those trusteeshipmatters wbich willbe taken up by the General
Assembly at the First Part of its First Session for the purpose of
expediting the establishment of the trusteeship system, will be
considered by the Tmsteeship Committee of the General.Assembly,
using the methods which the General Assembly considers most
appropriate for the further consideration of these matters". '
(d) In the discussion preceding this recommendation, in the 4th
Committee of the Preparatory Commission on 20th Decernber, 1945,

the representative of Austraiia madecertain reservations concerning
aspects of the proposed preamble, stating, inter alia:
"There was an implication that Article 80 imposed an obligation
on States administering the territories mentioned in Article 77 to
placethose temtories under trusteeship. Theterm ofArticles75and77
made il clear that the9Lacingofa tmitory under trusteeshi9wo«ld be
a voluntary act.
Thirdly, the phrase 'calls on,' since it had a special connotation
in the Charter (e.g. Articles 33 and 41). was unfortunate in this
context.
His Delegation cordially associated itself with the language of
the resolution,but had to insist that the lan uage of the preamble
was not within the letter and spirit of the Clarter; the actionof a
mandatorywouldbeas voluntaryas that ofany State putting any kind
ofdependentterritory der trusteeship". (Italics added.)

Respondent's representative on the same occasion
"reserved the position of his Delegation until the meeting of the
General Assembly, because his country found itself in an unusual
position'.The mandated temtory of South-West Africa was already
a self-goveming country. and last year its legislature had passed

Doc.Klzo. Chap. IV.sec.I,p. 49.
Ibid.
' U.N. P.C.. Commiffre g. Summory Xtcordp.39. PRELXMINARY OBJECTIONS OF SOUTH AFRICA
245
a resolution asking for admission into the Union. His Govemment
had replied that acceptance of this proposal was impossible owing
to their obligations under the mandate.
The position remained open. and his Delegation could not record
its vote on the present occasion if byso doing it would imply that
South-West Africa was not free to determine its own destiny. His
Government would, however, do everything in its power to imple-
ment the Charter". '

In the discussion on the sarne subject in the Preparatory Com-
mission meeting on 23rd December, 1945, Respondent's representa-
tive stated:
"the South African Delegation associated itself wholly with the
desire of Committee 4 to apply the principles laid down in the
Charter and that its efforts had been directed towards that end.
In view, however, of the special position of the Union of South-
Africa, which held a mandate over South-West Africa, it reserved
its position with regard to the document at present under review,
and especially because South Africa considered that it had fully
discharged the obligations laid upon it hy the Allies, under the
Covenant of the League of Nations, on the advancement towards
self-government of territoriesnder mandate, and that the tirne had
now come for the position to be examined as a whole. For that
reason, the South African delegation resewed its attitude until the
Assembly met". '

(e) The Preparatory Commission's report was considered at the
First Part of the First Session of the General Assembly in January-
February, 1946 Addressing a Plenary Meeting on 17th January,
1946, the South African representative stated his Govemment's
position on the South West Africa Mandate in the following terms:
"Under these circumstances, the Union Govemment considers that
it is incumbent upon it,asindeed upon al1othermandatory Powers,
to consult the people of the inandated territory regarding the form
which their own future govemment should take, since they are
the people chiefly conceried. Arrangements are now in train for
such consultations to take place and, until they have been concluded,
the South African Govemment must reserve its position conceming
the future of the mandate, together with its right of full liberty of
action, as provided for in paragraph r of article 80 of the Charter.
From what 1 have said 1 hope it will be clear that South West
Africa occupies a special position in relation to the Union which
differentiatesthat temtory from any other under a C mandate.
Tliis special position should be given full consideration in determi-
ning the futurestatus of the territory. South Africa is, nevertheless,
properly conscious of her obligations under the Charter. 1can give
every assurance that any decision taken in regard to the future of
the mandate will be characterized by a full sense of our responsi-
bility, as a signatory of the Charter, to implement its provisions, in

Ibid.p. 40.
2 U.N. P.C.. Journalp. r31.~4~ SOUTH WEST AFRICA

consultation with and with the approval of the local inhabitants,
in the manner best suited to the promotion of their matenal and
moral weil-being". '
On zznd January, 1946, in the Fourth Committee, he added:
"Refemng to the text of Article 77, he said that under the
Charter the transfer of the mandates regime to the trusteeship
system was not obligatory. According to paragraph I of Article 80,
no rights would be altered until individual trusteeship agreements
were concluded. It was wrong to assume that para aph 2 of this
Article invalidatedparagraph I.The position of thef?nion of South
Africa was in conformity with this legal interpretation.
He explained the special relationship between the Union and
the temtory under its mandate, refemng to the advanced stage of
self-government enjoyed by South-West Africa, and commenting
on the resolution of the Legislature of South-West Africa caliing
for amalgamation with the Union. There would be no attem t to
draw up an agreement until the freely expressed will of bot R the
European and native populations had heen ascertained. When that
had been done, the decisionof the Union would be submitted to the
GenéralAssembly for judgment". '
(f) Of the other Mandatories the representative of the United
Kingdom stated (on 17th January, 1946):

"We have decided to enter forthwithinto negotiations for placing
Tanganyika, the Cameroons and Togoland under the trusteeship
system.Preliminary negotiations have already started. 1must make
it clear that our wiiiingness to place these temtories under the
negotiateterms which in our view are generaiiy satisfactory, and
which achieve the objectives of the Charter and are in the best
interests of the inhabitants of the territories concem...
Regarding Palestine, the Açsembly is aw.are that an Anglo-
American Committee of Enqiiiry is, at this very moment, examining
the question of European. Jewry, which is one of the most tragic
episodes in the whole of history. and also the Palestine problem.
We think it necessary to await the Cornmittee's report before
puttingforward any proposaisrelating to the future of Palestine.
Regarding the future of Transjordan, it is the intention of His
Majesty's Government in the United Kingdom to take steps in tbe
near futurefor establishing this territory as a sovereign independent
Stateand for recognizingits status as such. In these circumstances,
the question ofTransjordan goingunder tmsteeship doesnot anse".'

The representative of France stated (on 19th January,. 1946):
"The French Govemment intends to carry on with the work
entrusted to it by theLeague of Nations. Believing further tbat it
is in the spirit of the Charter that this work should henceforward
be camied on uuder the trusteeship system, it is prepared to study
' G.A., O.R., Fivst Sers., Fi~rl12thPlenaryMeeting, 17thJanuary.1946,
pp.185-86.
Ibid., Fourlh Comm., 3rd Meeting, zznd Januaryp.1IO..
Ibid., 11th Plenary Meeting, ~;rthJan1946,pp. 166-67. PRELIMINARY OBJECTIONS OF SOUTH AFRICA
247
the terms of the agreements by which this regime could be defined
in the case of Togo and the Cameroons, on the understanding,
however, that this shall not entail, for the populations concerned,
any diminution in the rights which they aiready enjoy by reason of
their integration into the French community. and further that
these agreements wiUbe submitted for approval to the representa-
tive organs of these populations".

Other Mandatory Powers, New Zealand, Australia and Belgium,
stated intentions to negotiate tmsteeship agreements in respect of
the mandated temtories administered by them.
(g)Inits ResolutionXI ofgthFebruary, 1946,the General Assembly
(in the preamble) inter alia expressed regret at the fact that the
Trusteeship Council could not be brought into being atthat session,
because t~steeship agreements had first to be concluded. and

referred to the above-mentioned recommendation of the Prepara-
tory Commission as regards expediting the conclusion of such
agreements. The Resolution proceeded to state inter alia that
"m'thres$ectto ChafitersXII and XIII of theCharter,the General
Assembly :
Welcomesthe declarations. madeby certain States administering
temtones now held under mandate, of an intention to negotiate
tmsteeship a eements in respect of some of those territones and,
in respect ofFransjordan. to establish its independence.
Invites the States administenng temtones now held under man-
date to undertake practical steps, in concert with the other States
directly concemed, for the implementation of Article 79 of the
Charter (which provides for the conclusion of agreements on the
terms of tmsteeship for each temtory to be placed under the
tmsteeship system), in order to submit these agreements for appro-
val, preferably not later than dunng the second part of the first
sessionof the General Assernbly". a

Dissolutiolt of the League of Nations

30. The situation as far as the League of Nations was concemed,
after establishment of the United Nations, was described in a
League publication as foilows:
"The adoption of the Charter of the United Nations by a Confe-
rence at which the great majonty of the States Mernben of the
League were represented made the latter's ultimate disappear-
ance a foregone conclusionand from that Jime onwards the c?ef
concem of those responsible for its destinies was to see that its
activities were terminated in a manner worthy of the part it has
played in world affairs during the last quarter of a century".'

' Ibid., 16th Plenary Meeting. 19th January. 1946. p. 251.
Ibid.. 14th and 15th Plenary MeetingsJanuary. 1946,pp227.233and238.
aThaLcagucHan& Oucr(1946). p. 6r.248 SOUTH WEST AFRICA
31. The Secretary-General of the League, in a communication

dated the 20th Septernber, 1945, drew the attention of League
Mernbers to the task entrusted at San Francisco to the United
Nations Poparatory Commission relative to "the possible transfer
of certain functions, activities and assets of the League which it
may be considered desirable for the new Organisation to take over
on terms to be arranged": ' The communication contained a pro-
posa1that the Supervisory Commission of the League be empowered
to negotiate with representatives of the United Nations in this

regard and to draw up provisional terrns of transfer "subject to the
final decision of the League Assembly". The proposal was accepted
by the Members of the League, and negotiations were entered into
with the United Nations negotiating committee established by its
Preparatory Commission on the 18th December, 1945. By reason
of the limited terms of reference of the United Nations committee, '
the negotiations concerned assels only. The joint deliberations were
successful and resulted in the "common plan", which was approved

by the General Assembly of the United Nations in Part III of its
Resolution XIV of the 12th February, 1946. 5 It still required the
assent of the League Assembly to become effective.
After referring to the United Nations resolutions relative to
possible assumption of League functions and powers, the authors
of The Leagz~e Hands Over stated:

"Thus by the time the Assembly met in its twenty-first session
it was in possessionof the United Nations' plans for taking over the
League's material assets and for carrying on, either directly or
through one of its related agencies,al1the League'smost imprtant
functions and activities of a non-political character. Its main
business. therefore, was 'to make provisionfor bringing the League
of Nations to an end in orderly fashion, so that as much as possible
of its surviving work can be continued without interruption and as
much as possibleof,its property can be used to promote those high
purposes of international peace and CO-operationfor which the
League itself was founded'". '

32. The League Assembly met in its twenty-first, and last session
from the 8th to the 18th April, 1946.
Its final resolution, adopted on 18th April, 1946, provided at the

commencement of its operative part as follows:

Vidcoara. 27 stl41n
Thc ~>n~uc #anis Ovrr. p.61
' Ibid.ara. z8(c)supra.

' Vidc para. 28 supr~.
' At p. 63.The quotation was takenfrom the Report of Ihc Firsl Commille10
Ihc Asrcmblyin Lof N..O.J.. SprcSup. Xo. r94p. 250. PRELIMINARY OBJECTIONS OF SOUTH AFRICA
=49
"Dissolutionof the League of Nations.

I. (1) With effect from the day followingthe closeof the present
session of the Assembly, the League of Nations shall cease to exist
except for the soleurpose of the liquidation of its affairsas provided
in the present resolution".'

The rest of the Resolution related to practical arrangements
conceming liquidation, which need not be quoted. Of significance
for present purposes, however, is that paragraph 5 thereof approved
of the common planfor transfer of assets to the United Nations.

33. "The Assumption by the United Nations of Functions and
Powers hitherto exercised by the Leagueunder International Agree-
ments" was the heading of a separate resolution adopted earlier
on the 18th April, 1946. It read, in so far as is relevant, as follows:

"The Assembly of the League of Nations,
Having considered the resolution on the assumption by the
United Nations of functions and powers hitherto exercised by the
League of Nations under international agreements, which wasadop-
ted by the General Assembly of the United Nations on Febmary
16th. 1946. '
Adopts the followingresolutions:

1. Custody oftheOriginalTexis of InternalionalAgreements.
...
2. Funclionsand Powersarisingoutof International Agreemen Ots
a Technicaland Non-politicalCharacter.

The Assembly recommends the Govemments of the Membersof
the League to facilitate in every way the assumpJion without
brought into relationship with that organisation, of functions and
powers whichhave been entmsted to the League of,Nations. under

and which the United Nations is willingto maintain".ti'al character,

34. "The Assumption by the United Nations of Activities hitherto
performed by the League" was the heading of a further separate
resolution of the 18th April. 1946. reading as follows:
"The Assembly directs the Secretary-General of the League of
Nations to afford every facility for the assumption by the United
Nations of such non-political activities, hitherto performed by the
League, as the United Nations may decide to assume". '

35. Finally, "Mandates" was the heading of another important

separate resolution of the 18th April, 1946. Before setting outits

' Li 01N..O.J., Spec. Sup. N194. p.28,.
' C.A. RcsoluliaXIV (r), rzth November1946. in U.N. Doc. Al64 p. 35.
L. ofN.. 0.J Sprc. Sup. No.194. p. 278.
17250 SOUTH WEST AFRICA
terms, regard is to be had to certain events which preceded its
adoption.

(a) The session was scheduied to last less than two weeks, and
delegates knew that it wouid not be possible to discuss the future
of the Mandate System at any length in an appropriate Committee.
Informal discussions were conseqnently initiated between those
Members of the League most directly concemed, with a view to
securing the greatest possible measure of agreement before the

matter was officially considered in the Committee.
In pursuance of the said discussions, the representatives of Man-
datory Powers, in addressing the plenary meeting of the Assembly,
made statements indicatine the intentions of their Govemments
regarding their respective kandates. In the resolution ultimately
adopted the Assembly "took note" of these statements.

(b) The following are relevant extracts from these statements of
intention by the various Mandatories:
(i) By the representative of the United Kingdom (on the 9th April,
1946) :

"The mandates administered by the United Kingdom were origi-
nally those for Iraq. Palestine, Transjordan, Tanganyika, part of
the Cameroonsand part of Togoland.Two of these territories bave
already become independent sovereign States, Iraq in 1923, and
Transjordan just the other day in 1946.As for Tanganyika and
Togoland under their mandate, and the Cameroons under their
mandate, His Majesty's Govemmentin the United Kingdom have
already announced their intention of placing them under the
tmsteeship system of the United Nations. subject to negotiations
on satisfactory terms of tmsteeship.
The future of Palestine cannot be decided until the Analo-
American Committee of Enquiry have rendered their report, %ut
until the three African temtones have actually been placed under
tmsteeship and until fresh arrangements have been reached in
regard to Palestine-whatever those arrangements may be-it is
the intention of His Majesty's Govemmentin the United Kingdom
.to continue to administer these temtories in accordance with the
general principles ofthe existing mandates". '

(ii)By the representative of South Africa (on the 9th April, 1946):
"Since the last Leaeue meet~~e. new circumstances have arisen
obliging ttie mandat05 ~ower& take into review the existing
arrangements for the administration of their mandates. Aswas fully
ex~lainedat the recent United~ ~t~ ~ ~eneralAssemblvin London.
th; Union Govemment have deemed it incumbent uhn them to
consult the peoples of South-West Africa, European and non-
European alike, regarding the formwhich tbeir ownfuture Govem-
ment should take. On the basis of those consultations, and having
regard to the unique circumstances which so signdy ciiffer-
entiate South-West Africa-a temtory contiguouswiththe Union- PRELIMINARY OBJECTIONS OF SOUTH AFRICA 251

from al1 other mandates, it is the intention of the Union Govern-
ment. at the forthcoming session of the United Nations General
Assembl in New York, to formulate its case for according South-
West Afnca a status under wbich it would be internationally
recognised as an integral part of the Union. As the Assembly will
know, it is already administered under the terms of the mandate
continue to administer the temtoxy scrupulously in accordanceill
with the obligations of the mandate, for the advancement and
promotion of the interests of the inhabitants, as she has done
during the past six years when meetings of the Mandates Com-
mission could not be held.
The disappearance of those organs of the League concerned with
the supervision of mandates, pnmarily the Mandates Commission
and the League Council, will ~iecessarilypreclude complete compli-
ance with the letter of the mandate. The Union Government wili
nevertheless remrd the dissolution of the Leame as in no wav
diminishing its obligations under the mandate. wtÏichit wiicontinie
ro discharge witti the full and proper appreciation of its responsi-
bilities unxi1 such time as other -arra@ements are agreed-upon
concerning the futurestatus of the territory".'

(iii) By the reeesentatiue of France (on the 10th Apnl, 1946):
"The French Government intends to pursue the execution of
the mission entrusted to it by the League of Nations. It considers
that it is in accordance with the spirit of the Charter that this
mission should henceforth be camed out under the refime of
tmstecship and it is ready to cxamine the terms of ail ag;eemcnt
to define ttiis rtgimin the case of Tugoland and thr Cameroons". '

(iv) By therepresentatiueof New Zealand (on the 11th April, 1946):
"New Zealand has alwaysstrongly supported the establishment of
the International Trusteeship System, and has already declared its
willingness to place the mandated territory of Western Samoa
under trusteeship.. . New Zealand does not consider that the
dissolution of the Lear of,Nations and, as a consequence, of the
Permanent Mandates ommission wd have the effect of diminishing
her obligations to the inhabitants of Western Samoa. or of increasing
her rights in the temtory. Until the conclusion of our Trusteeship
Ameement for Western Samoa. therefore. the temtorv willcontinue
tGbe administered by New ~éaland,in accordance &th the terms
of the Mandate, for the promotion of the well-beina -nd advance-
ment of the, inhabitants".

(v) By the Belgian.refiresentatiue (on the 11th Apnl, 1946):
"At the meeting of the General Assembly of the United Nations
in London on Tanuam 20th last. she declared her intention of
entering into negotiatikns with a hew to placing the Temtory of
Ruanda-Urundi under the newregime. In pursuanceof thisintention,

' Ibid.pp.32-33.
Ibid.p.343.25z SOUTH WEST AFRICA

the Belgian Government has prepared a draft agreement setting out
the conditions under which it will administer the territorv in
question.
pressed our confidence that the Trusteeship Council would soonx-
came to occupy in the United Nations Organisation the important
placewhichit deserves.Wecan only repeat that hopehere and give an
assurance that, pending its realisation, Relgium will remain fully
alive ta al1 the obligations devolving on members of the United
Nations under Article 80 of the Charter".'

(vi) By the Australian representative (on the 11th April, 1946):
"The trusteeship system, strictly so called, will apply only to
such territories as are voluntarily brought within its scope by
individual trusteeship agreements. . . After the dissolution of the
League of Nations and the consequent liquidation of the Permanent
Mandates Commission, it will be impossible to continue the man-
dates system in its entirety.
Notwithstanding tbis, the Government of Australia does not
imposedupon itfor the protection andadvancementaf theinhabitantsns
of the mandated temtories. which it reeards as havine still full
force andeffect. ~cçordin~l;.iintilthe cGning iiito forc;of appro-
pnatr trusteeship agreements under Chaptzr XII of th*. Cliarter.
the Governmcnt of Ausrralia willcontinue to administcr tlic vreaent
mandated territories, in accordance with the provision of t6e Man-
dates, for the rotection and advancement of the inhabitants. In
making plans or 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 responsible. So far as the Australian territories are concerned,
thereis full assurance. In due course these territories willbe brought
under the tmsteeship system of the United Nations; until then,
the ground is covered not only by the pledge which the Government
of Australia has given to this Assembly to-day but also by the
explicit international obligations laid down in Chapter XI of the
Charter,ta which 1 have referred. There wiü be no gap, no inter-
regnum. to he provided for".'
(vii) No statement was made concerning the future of the Pacific
Islands in respect of which a Mandate had been granted ta Japan.
(c) After the above statements by the representatives of the
United Kingdom and of Respondent had been made (on the morning
of the 9th Apnl, 1946). but before the others could be delivered,

and while the informal' discussions were stili proceeding regarding
the drafting of a resolution, the representative of China, Dr. Liang,
raised the question of the future of Mandates in the First Com-
mittee on the afternoon of the 9th April, 1946.
The Committee was at the time considering the draft resolution
concerning assumption by the United Nations of League functions
1 Ibid.
Ibid.. p. 47. PRELIMINARV OBJECTIONS OF SOUTH AFRICA z53

and powers arising out of international agreements of a technicai
and non-politicai character (vide paragraph 33 above). Dr. Liang
wished ta propose for discussion the following draft resolution,
which he read out:

"TheAssembly :
Consideringthat the Trusteeship Council of the United Nations
has not yet been constituted and that dl mandated territories
under the League have not been transformed into temtories under
trusteeship;
Consideringthat the League functions as supervisory organ for
mandated territories should be traiisferred to the United Nations
after the dissolution of the League in order to avoid a,penod of
inlerregnumin. the supervision of the mandated temtones;
Recommends that the mandatory powers as well as those adminis-
tering ex-enemy mandated territories shall continue to submit
annual reports on these territories to the United Nations and to
submit to inspection by the same until the tnisteeship council shall
have been constituted".

The Chairman, however, ruled that the proposai was not relevant
to the item then under consideration by the Committee. What
transpired is set forth as foiiows in the summary records of the
League :
"Dr. LONELIANG(China) referred to the position of tetritories
under mandate and to the position which would arise on the disso-
lution of the League. in view of the fact that the t~steeship council
of the United Nations has not yet been appointed and was not
likely to be set up for some time. The Chinese delegation wished
to submit a resolution recommendine that the mandatorv wwers
should continue to submit annual rFports on the mandated tem-
tories to the United Nations and that thev should agree to inspection
b, the latte..'en di-nethe constitu~-.~~if~the tnis<eeshi~ coùncil
The Cbuirmnnthought that the question raised by the Chinese
delegate coutd be discussed later, but for the moment they must
confine themselves ta examining the resolutions of the United
Nations in theorder in which they appeared in document A113.1946.
The General Assembly of the United Nations had certainly not
had the question of the system of trusteeship in mind when it
drafted its resolution on functions and powers under international
agreements of a technical and non-political character.
Dr. LONELIANG(China) accepted the Chairman's explanation". '

(d) Following this incident, the informai discussions mentioned
above were renewed, the Chinese delegation aiso participating
therein. The finai outcome was that when the question of Mandates
was reached in the First Committee, on the 12th April, 1946, the
Chinese delegate, Dr. Liang, himself introduced a new draft ofTi4 SOUTH WEST AFRICA
which Sir Hartley Shawcross of the United Kingdom said, when
seconding the proposal, that it

"had been settled in consultation and agreement by al1countries
interested in mandates, and he thought it could, therefore, be
passed without discussionand with complete unanimity". '
In proposing the new draft resolution Dr. Liang

"recalled that he had already drawn the attention of the Committee
to the complicated problemsarising in regard to mandates fromthe
transfer of functions from the League to the United Nations. The
United Nations Charter in Chapters XII and XII1 established a
system of trusteeship based largely upon the principles of the
mandates system, but the functions of the League in that respect
were not transferred automaticdy to the United Nations. The
Assemblyshouid therefore take steps to secwe the continued appli-
cation of the principlesof the mandates system. As ProfessorBailey
had pointed out to the Assemblyon the previous day, the League
wwld wish to be assuredas to the future of mandated territories.
The matter had also been referred to by Lord Cecil and other
delegates.
country which had always stood for the principle of trusteeship,a
that al1 the Mandatory Powers had announcedtheir intention to
administer the tenitones under their control in accordance with
their obligationsunder the mandates system undilotherarrangements
were agreeùupon. It wns to be hupedthat the fulure arrangements
to be made with regard ta these temtories wou2dapply in full the
principle of trusteeshipunderlying the mandates system.
The Chinese delegation had pleasure in presenting the draft
resolution now before the Committee.so that the question could be
discussed by the Assembly in a concrete form and the position of
the League claded". ' (Italics added.)

Apart from Dr. Liang's statement, there was no discussion of the
substance of the resolution, which was adopted unanimously (sub-
ject ta drafting), the Egyptian delegate abstaining and "making
ailreservations on behalf of his Govemment with regard ta Pales-
tine".

(e) The new draft contained what eventualiy became the Assem-
bly's resolution concerning Mandates. The adoption of that Reso-
lution by the Assembly on 18th Aprii, 1946, was without discussion,
Save that the Egyptian delegate indicated that he would abstain
from voting by reason of a reservation of his Government in regard
to the Mandate for Palestine. The essence of the rese~ation appears
from the foliowing extracts from his statement:

"The opinion ofmy Govemment is that Palestine has intellectu-
ally, economically,and politically reached a stage where it should

1Ibid., p79.
Ibid.. pp78-79. PRELIMINARY OBJECTIONS OF SOUTH AFRICA , 255

no longer continue nnder mandateor tmsteeship or whatever other
arrangements may be considered. ... It is the view of my Govem-
ment thatmandateshaveterminatedwiththedissolutionof theLeague
of Nations. and that, in so far as Palestine is concemed, there
should be no question of putting that country under tmsteeship". '
(Itaiics added.)

(f) Thereupon the Resolution was adopted (Egypt abstaining)
as follows:
"The Assembly :
Recalling that Article 22 of the Covenant applies to certain
territories placed under mandate the principle that the weU-being
and development of peoples iiot yet able to stand alone in the
strenuous conditions of the modem world form a sacred tmst of
civilizatio:

I. Expresses its satisfactionwith the manner in which the organs
of the League have performed the functions entrusted to them
with respect to the mandates system and in particular pays tribute
to the work accomplished by the Mandates Commission:
z. Recails 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 Lehanon and Transjordan, which have, since the last
session ofthe Assembly, become independent members of the world
community;
3. Recognises that. on the termination of the League's existence.
its functions with respect to the mandated temtories will came to
an end, but notes that Chapters XI, XII and XII1 of the Charter
of the United Nations embody principles corresponding to those
declared in Article 22 of the Covenant of the League:
4. Takes note of the expressed intentions of the members of the
League now administering temtories under mandate to continue
to administer them for the well-being and development of the
peoples concemed in accordance with the obligations contained in
the respective mandates until other arrangements have been agreed
between the United Nations and the respective mandatory powers". *

Zbid., pp58-59
Zbid.. pp58. 278-79. SOUTH WEST AFRICA

CHAPTER II (Continued)

Part B.

I. Over the years of the Mandate's existence a growing desire
had developed amongst the inhabitants of South West Africa for
closer association with South Afnca and for termination of the
Mandate. This desire found concrete expression in resolutions
passed hy the South West Africa Legislative Assembly as far back
as 1934. On the 14th May, 1943, the Legislative Assembly again
asked for termination of the Mandate and incorporation of the
Temtory in the Union of South Africa. A similar resolution was
passed on 8th May, 1946.
Since these resolutions emanated from a body wherein the non-
White sections of the population were not directly represented,
Respondent felt that they should be fully and directly consulted
as to their wishes.

Respondent had made known on a number of occasions during
1945 and 1946,its intentions as to the future of South West Africa.
This was done first at the San Francisco Conference in May, 1945. '
In January, 1946, at the First Part of its First Session,the United
Nations General Assembly was informed, "d in April of that
year also the League of Nations Assembly at its final Session,
of Respondent's intention to consult the inhabitants of South West
Africa regarding the future of the Temtory.
The consultations which were thereupon conducted, resuited
in an ovenvhelming majority of the non-White inhabitants of
South West Africa expressing themselves in favour of "OUI country
(becoming) part of the Union of South Africa"; 208,850 were in
favour, 33,520 were against; and 56,790 could not be consulted
because of practical difficulties.

The results and the manner of consultation, as well as a reasoned
statement on the question of incorporation, were fully set out in a
"Memorandum on the administration of South West Africa and
on the wishes of its peoples asto the future status of the Temtory".

' Vide Part A. par25 supvn.
Ibid., par29.
Ibid.. par35 (b) (ii). PRELlMlNARY OBJECTIONS OF SOUTH AFRlCA 257

submitted to the Secretary-General of the United Nations by Res-
pondent in October, 1946. '
2. In November, 1946, the South African representative (Field-
Marshal Smuts) further elaborated on the question of incorpora-
tion in an address to the Fourth Committee of the United Nations
General Assembly.
Hedealt, interalia,with the fundamental concepts of the Mandate
System and stressed the importance of the wishes of the inhabitants

of Mandated territories as to their ultimate destiny. In emphasising
that South West Africa was "uniquely different" from other
Mandated territories, he referred to the statement by President
Wilson at Versailles as to South West Africa's future association
with South Africa.
He advanced many reasons why incorporation would facilitate
the administration of the Territory and would also be in the best
interests of South West Africa and beneficial to its inhabitants.
He referred to the reservation made by Respondent at the San
Francisco Conference in May, 1945, as tothe future of the Territ~ry,~

and concluded'by saying he was confident that the United Nations
would recognise that, to give effect to the wishes of the population
of South West Africa, would be "the logical application of the
democratic principles of political self-determination" and would
also be

"the inevitablefulfilrnentof a historical evolution which isin itself
upon it the benefits of the membership of a larger communityconfer
without loss of those individual rights and responsibilities which
the territoryenjoyed under the Mandate". '

Some days later Field-Marshal Smuts also informed the Fourth
Committee that :

"It would not be possible for the Union Govemment as a former
mandatory to submit a trusteeship agreement in conflictwith the
clearly expressed wishes of the inhabitants. The Assembly should
recognise that the implementation of the wishes of the populatiori
was the course prescribed by the Charter and dictated by the
interests of the inhabitants themselves. If, however, the Assembly
did not agree that the clear wishes of the inhabitants should be
ithan to abide by the declaration it had made to the last Assembly
of the League of Nations to the effect that it would continue to
administer the temtory as heretofore as an integral art of the
Union, and to do so in the spirit of the principles laid own in the
mandate.

' U.N. Doc.A(iz3. in C.A.. O.R.. Firrt Sers., Part.Fourtli Conrm..Pa1.
PP; 199-235.
Quoted st<pra.l'art A. pa8..
' U.N. Doc. AIC.4/41. iC.A.. O.H.. Firsl Sers., Second Port. Fourlh Comm..
l'art 1. 244.~5~ SOUTH WEST AFRICA

ln particular the Union would, in accordance with Article 73,
paragraph (e) of the Charter, transmit regularly ta the Secretary-
General of the United Nations 'for information purposes, subject
to such limitationsaç security and constitutional regulations might
require, statistical and other information of a technical nature
relatingta economic, social and educational conditions' in South
West Africa.Therewasnothing inthe relevant clausesofthe Charter,
nor was it in the minds ofthosewhodrafted these clauses,to support
the contention that the Union Govemment could be compelled to
enter into a trusteeship agreement even against its own view or
those of the people concerned".'
3. Apart from the expressed wishes of the inhabitants, the nume-
rous other considerations relied on for incorporation, as set out in
the Memorandurn 2and elaborated on by Field-Marshal Smuts in
his addresses, included the following (briefly stated) :

(a) Experience had shown that the circurnstances of South West
Africa did not permit of entirely satisfactory administration
under the Mandate System-or any analogous system.
(b) The geographical features and location of Soufh West Africa,
its vast semi-desert areas, its clirnate and low rainfall, and its
sparse population rendered it incapable of a separate economic
existence.

(c) Experience in two world wars had shown that for strategic
and security reasons South Africa and South West Africa should
constitute a single unit.
(d) The various peoples of South West Africa had a close ethno-
logical and national affinity with those of South Africa-a substantial

number in fact being of South African origin and South African
citizens.
(e) A large measure of integration of the administration of South
West Africa with that of South Africa-as sanctioned hy Article 22
of the Covenant and the Mandate-had already taken place, and
further integration was essential if the Temtory were ta share
fully in the advanced technical and administrative services South
Africa could provide.

(f) South West Africa was economically dependent on South
Africa. not only for financial assistance and the subsidisation of
its economic life, but also as a free market for its agricultural
produce.
(g)The uncertainty as to the political future of the Territory
inevitably militated against racial tranquility and the optimum
development of the Territory.

4. In view of the above considerations Respondent considered
that the General Assembly ought to endorse the proposal for in-

Novernher, 1gq6,p.roz.s.Second Part. FourtComm., Part 1. rgth Meeting. 13th
U.N. Doc. A!iz3. PRELIMINARY OBJECTIONS OF SOUTH AFRICA '49
corporation. The General Assembly, however, rejected (in Resolu-
tion 65 (1)) the proposa1 on the ground "that the African inhabi-

tants of South West Africa have not yet secured political auto-
nomy or reached a stage of political development enabling them to
express a considered opinion which the Assembly could recognise on
such an important question as incorporation of this territory",
and recommended that South West Africa he placed under the
International Trusteeship System of the United Nations. 1
In rejecting the proposa1 for incorporation on this ground the
General Assembly reflected on only one aspect of the factors
favouring incorporation, namely the expressed wishes of the popu-

lation, and remained silent on al1the others.
In Respondent's view the other factors, eSpecially those relating
to the interests of the inhahitants, were of importance and should
have been given weight in the General Assembly's consideration of
the proposal, particularly if there were doubts as to the ability of
the population to express themselves.
From the fact that the General Assembly did not, in its Resolu-
tion 65 (1), reflect on these factors at all, coupled with the nature

of the discussions in the Fourth Committee, Respondent felt justi-
fied in inferring that there were other reasons which had motivated
the approach of at least some Members of the United Nations to
the proposa1 for incorporation.
The tone of the statements madéin the Fourth Committee and
the General Assembly by some delegations was regarded by Res-
pondent as an indication that political motivations, unrelated and
even detrimental to the interests of the inhabitants of South West
Africa, would be an inherent element in any supervisory system

under the United Nations. This, in Respondent's view, would
greatly hamper its task in administeriug the Territory; and as
Respondent had assumed a "sacred trust" in respect of the inhabi-
tants, it had in any event to be mindful of their expressed wishes
'and their interests.

5. In response to the General Assemhly's invitation to Respon-
dent "to propose for the consideration of the General Assembly a
trusteeship agreement", 1'Respondent consequently replied by
letter (of 23rd July, 1947) to the Secretary-General. inter alia, as
follows:

"the Union Government desire to reiterate their view that it is
implicitin the mandate syçtemand in the mandate for South,West
Africathat due regardshall be had to the wishesof the inhabitants
in the administration of the Territory. The wish clearly expressed
by the ovenvhelmingmajority of al1the native racesin South West
Africaand by unanimousvote on the part ofthe European represen-
tatives of the Territory that South West Africabe incorporated in

C.A. Rcrolution 65 (1). 14th Decemb1946,in U.hr. Doc. Ai64iAdd.i123.
(Quoted ieztnso inApplicants'Mamoriolr. pp. 43-44).260 SOUTH WEST AFRICA

the Union therefore debars the Union Government from acting in
accordancewith the resolution of the General Assembly, and there-
hy flouting the wishesof those'who under the Mandate have been
committed ta their charge. In thecircumstances the Union Govern-
ment have no alternative but to maintain the status quo and, to
continue ta administer the territory in the spirit of the existing
Mandate". '
In the same letter Respondent referred to a resolution adopted
by the House of Assembly of the Union Parliament, on 11th April,

1947, reading as follows:
"Whereas in terms of the Treaty of Versail,es full powerof legis-
lation and administration was conferrend on the Union of South
Africa in respect of the Territory ofSouth West Africa,subject only
to the rendering of reports to the League of Nations; and
Whereas the League of Nations has since ceased to exist and was
not empowered by the provisions of the Treaty of Versailles or of
the Covenant ta transfer its rights and powers in regard to South
West Africa to the United Nations Organisation, or ta any other
international organisation or body, and did not in fact do so; and

Whereas the Union of South Africa has not by international
;agreementconsented ta surrender the rights and po\<erssoacquired.
aiid liai not surrendered these by jigning the Charter of tlie United
Nations Organisation and remains in full possession and exercise
thereof; and
Whereas the overwhelming majority of both the European and
non-European inhabitants of South West Africa have expressed
themselves in favour of the incorporation of South West Afnca
with the Union of~ ~ ~h~Afric~~-~~.
Therrfore this Hoiise is ofopinion tliat tlie Territory should here-
~rexiite(linttie l'arliamentof the Cnionasan integral portion thcreof-

tation with the inhabitants of the Territor?. providing forits re-il-

presentation in the Union Parliament. and that the Government
should continue ta render reports ta the United Nations Organi-,
sation as it has done heretofore under the Mandate".
The letter also referred to the fact that "the Union Government
have already undertaken to submit reports on their administration
for the information of the United Nations".

6. In compliance with an undertaking given by Respondent at
the First Session of the General Assembly in 1946, meetings were
held throughout South West Africa duringr947 to acquaint the
non-White inhabitants with the General'Assembly's resolution
65 (1). These meetings showed that the overwhelming majority

were stil in faoour of incorporation. Likewise, the South West
Africa Legislative Assembly on the 7th May. 1947, unanimously
adopted a ftirther resolution urging incorporation.

? Ibid.p. 134.34. in C.A.O.H.. SecondSess.,Fourth Comn.. p. 135
' Vidc para.2 supra. PRELIMINARY OBJECTIONS OF SOUTH AFKICA 26 I

The wishes of the people of South West Africa were again com-
municated to the United Nations in a special report, ' and ivere
further elaborated on by the South African representative in the
Fourth Committee on the 25th September, 1947. He intimated that
Respondent :

Would not proceed with the incorporation of South.West Africa;
Would consider itself under no legal obligation to propose a
trusteeship agreement for the Territory ;
Couldnot further ignore the wishes of the great majority of the
inhabitants of South West Africa who favoured incorporation, by
placing the Territory under the Trusteeship System: and

Would continue to maintain the status quo, to administer the
Territory in the spirit of the Mandate, and to transmit to the
United Nations for its information an annual report on the adrninis-
tration of the Territory of South West Africa.
At the thirty-third meeting of the Committee on 27th September,
1947, in response to a request by the representative of Denmark
for amplification of Respondent's proposa1 regarding maintenance

of the status qtio,the representative of the Union of South Africa
explained that :
"the annual report which his Government would submit on Soutli
West Africa would contain the same type of information on the
Temtory as is required for Non-Self-GoverningTerritories under
Article 73 (e)of the Charter. It was the assurnption of his Govern-
ment, he said. that the report would not be considered by the
Trusteeship Counciland would not be dealt with as if a trusteeship
agreement had in tact been concluded. He further explained that,
sincethe Leagueof Nations had ceasedto exist. the right to subrnit
petitions could no longer be exercised, since that right presupposes
a jurisdiction which would only exist where there is a right of
control or supervision, and in the view of the Union of South
Afnca no such jurisdiction is vested in the United Nations with
regard to South West Africa". '

7. In November, 1947. ~he South African representative dealt
in the General Assembly with the question of an alleged moral
obligation to submit a trusteeship agreement-a contention based,
firstly, on the fact that al1 other Mandated territories had been
placed under the Trusteeship System or had been offered indepen-
dence, and secondly, on resolutions of the General Assembly of
. 9th Febmary and 14th December, ' 1946. He again stressed the
many and material respects in which South West Africa differed

from other Mandated territories, and emphasised that Respondent
would be acting in defiance of the wishes of the vast majority of

; ' U.N. Doc.Aljj41Add. 1,in C.A., O.R.. SecondSesr.. FourlRComm..pp. 136-38.
*U.N. Doc. A/422. iC.A.. OR.. SecondSLSS.. lcnnrMrctings.Vol. II. p. 1538.
. 'C.A. Rc$o(wfionXI(,) n U.N. Doc ,4164.p.13.
'C.A. Rcroiulio65(1).262 SOUTH WEST AFRICA

the inhabitants if a trusteeship agreement were concluded. He
added that, whereas the resolution of 9th February, 1946. conveyed
an invitation, and that of 14th December, 1946, a recommendation.
that a trusteeship agreement he submitted in respect of South
West Africa. his Government had "conscientiously performed" its
duty ingiving"most anxious consideration" to the recommendation,
but could not accede thereto.'
At the same time he informed the General Assembly that

"the Union of South Africa has expressed its readiness to submit
annual reports for the information of the United Nations. That
undertaking stands. Although these reports, if accepted, will be
rendered on the basis that the United Nations has no supervisory
jurisdiction in respect of this territory they will serve to keep the
United Nations informed in much the same way as they will be
kept informed in relation to Non-Self-GoverningTerritories under
Article 73 (e)of the Charter". a

8. Despite the above, the General Assembly adopted a resolution
maintaining its previous recommendation that South West Africa
be placed under the Trusteeship System and urging Respondent to
propose forthe consideration of the General Assembly a trusteeship
agreement for the Territory, motivating its resolution in the fol-
lowing terms:

"Whereas it is a fact that al1other Statesadrninistering territories
previously held under mandate have placed these territories under
the Trusteeship system or offeredthem independence".
At the TKird Session of the General Assembly in 1948 the South
African representative formally reiterated

"that the Union Government, after full consideratioii of al1 the
aspects of the matter, had once again come to the conclusionthat
it would be in the interests neither of the Temtory of South West
Africa and its people,nor of the Union and its people, to place the
Territory under the authority of the Trusteeship Council of the
United Nations, and that, in the circumstances, the Govemment
regretted not being able to comply with the request of the United
NationsAssembly tosubmit,voluntarily, a trusteeship agreement". '

9. In compliance with its earlier voluntary undertaking, Respon-
dent submitted in September, rg47, a report on South West Africa
for the year 1946.
This report was submitted on the hasis clearly stated in the said
undertaking, namely :
(a) that it would be for information purposes only, containing

' C.A.. O.R., Second Sesr., io5th Plenary Meeting. ist Nover,947. p. 63Cf
scg.Ibid.. p. 632.
C.A. Rerolulion i4r(II1stNovernber, 1947in U.N. Doc. Al519, p. 47.
' C.A.. O.R.,ThirdSerr.. FourfhComm..76th Meeting, 9th Novemb1948.p. 292. PRELIMIXARY OBJECTIONS OF SOUTH AFRICA
263
the same type of information on the Territory as required for Non-
Self-Governing Territories under Article 73 (e) of the Charter; and
(b) that Respondent did not recognise the United Nations as
a supervisory authority in respect of the Territory-the reports
not being intended for use by the United Xations as if the latter
urere the supervisory authority or as if a trusteeship agreement had
in fact been entered into.

After receipt of this report, the General Assembly authorised
"the Trusteeship Council in the meantime to examine the report on
South West Africa ...and to submit its observations thereon to the
General Assembly". '
Respondent declined an invitation by the Trusteeship Council

to send a representative to attend its examination of the Report
since such action would not have been consistent with its view
that the Council was not vested with supervisory functions in
respect of South West Africa.
Respondent, however, offered to transmit further information
in wnting if requested to do so. In response to such a request,
further information was submitted; and in a covering letter of
3rst May. Respondent, intea rlia:

formation on South West Africa, in the form of andannual report or
any other form, is on a voluntary basis and is for purposes of in-
formation only. They have oii several occasions made it clear that
they recognize no obligation to transmit this information to the
United Nations, but in view of the wide-spread interest in the
administration of the Temtory, and in accordance with normal
democratic practice, they are willingand anxious to make available
to the world such factsand figmresas are rcadily at their dispos...
The Union Govemment desire to n:call that in offeringto submit a
report on South West Africa for the information of the United
h'àtions, they did so on the basis of the provisions of Article 73(e)
of the Charter. This Article calls for 'statistical and other informa-
tion of a technical nature' alid makes no reference to information
on questions of policy.
In these circumstances the Union Govemment do not consger
that information on matters of policy, particularly future policy,
should be included in a report (or in an supplement to the report)
which is intended to be a factual anJ statistical account of the
administration of the Territory over the period of a calendar year.
Nevertheless, the Union Govemment are anxious to be as helpful
and as CO-operative as possible and have, therefore. on this occasion
replied in full to the questions dealing with vanous aspects of
policy. The Union Govemment do not, however, regard this as
creating a precedent. Furthemore, the rendering of replies on
policy shouid not be construed as a commitment as to Fture @icy
or as implying any measure of accountability to the United Nations
on the part of the Union Govemment. In this connexion the Union
' G.A. Rcroluiiorqr(l1)264 SOUTH WEST AFRICA
Government have noted that their declared intention to administer
the Territory in the spirit of the mandate has been constmed in
some quarters as implyinga measureofinternational accountability.
This constmction the Union Government cannot accept and they
would again recall that the Lea e ofNations at its final sessionin
April, 1946. explicitly refrain,Yfrom transfemng its functions in
respect of mandates to the United Nations". '
When the Trusteeship Council's observations on the Report on
South West Africa acame before the Fourth Committee in 1948,

the South African representative referred to Respondent's earlier
reservations, and stated that, in view thereof:
"the Union could not admit the right of the Tmsteeship Council
to use the report for purposes for which it had not been intended:
still less could the Trusteeship Councilassume for itself the power
claimed in its resolution i.e. 'to determine whether the Union of
South Africais adequately dischargingits responsibilitiesunder the
terms of the mandate ...Furthermore, that po\ver was clairned in
respect ofa territory which wasnot a tmst territory and in respect
of which no trusteeship agreement existed. The South African
delegation consideredthat in so doing the Councilhad exceededits
powers".'
The South Africanrepresentative also observed that the Trustee-

ship Council, in dealing with the report, apparently considered
that it had a supervisory function in respect of South West Africa
and that Respondent was accountable to it for the administration
of the Territory-which was not in accordance with the basis of the
undertaking ~vithregard to reports. 6
IO. Respondent does not deal herein with the substance of the
Trusteeship Council's comments on the report. 6 What is relevant,
however, is that those comments and the subsequent discussions
thereon did not observe the reservations under which the report had

been submitted.
Moreover, many of the conclusions contained in the Trusteeship
Council's observations were apparently based on misconceptions
as to conditions in the Territory, and the discussions in the Fourth
Committee made it clear to the South African delegation that
similar misconceptions existed also amongst some of the Members
of that Committee. The South African representative consequently
dealt at length with conditions in the Territory ' in order to ac-
quaint the Committee with the true facts. It was found, however,
that a majority of Members did not pay regard to the information

'U.N. DOC.'r.175. 3rd June.1948, pp. ii-iii.
' C.A....R.. ThirdScrr.. FourUComm..76th Meeting, 9th Sovembe1948p. 288.
' Ibid., 77th Meeting. 10thNovemher. ,948. p. 297.
Vide Part A. pararsupra.
'C.A.;O.K.. Third Sesr., Fourth Comm.. 73th Meeting. 11th Fovember1948,266 SOUTH WEST AFRICA

spirit of goodwill, CO-operationand helpfulness offered to provide
the United Nations with reports on the administration of South
West Africa, with the clear stipulation that this would be done on
a voluntaq basis, for purposes of information only and on the
distinct understanding that the United Nations has no supervisory
jurisdiction in South West Africa. In this spirit a report was sub-
mitted in 1947, and in 1948 detailed replies were furnished to a
subsequent questionnaire, formulated by the Trusteeship Council.
It was emvhasised at the time that the fonvardina of information
on policy should not be regarded as cretiting n p@ccdent. or con-
strued as a conimitnient for the future or as iniplying any measure
of accountahilirv to the Cnited Nations on the vart of the llnion
that the Trusteediii~ Council u,ould approacli its task in an entirclv
objective manner and examine the-report in the same spirit if
goodwill, CO-operationand helpfulness as had motivated the Union
inmaking the information available.
These hooes have not been realised. Instead the submission of
infoririation'has pro\.ided anopportunityto utilise the Tnisteeship
Coiincil and ttie Trusteesliiu Committte as a forum for uniustiticd
criticism and censure of the Union Govemment's admincstration
not only in South West ~frica but in the Union as well. Inferences
and deductions have been drawn from the information submitted
whicb are quite inconsistent with facts and realities. The misunder-
standings and accusations to which the United Nations discussions
of this suhject have given rise have had repercussions both in the
Union and in South West Africa, with deleterious effects on the
maintenance of the harmonious relations which have hitherto
existed and are so essential to successful administration. Further-
more. the verv act of submittine a rewrt has created in the minds
of a "umber of hlemberj of ttiëÜnite'd Nation3 an irnprejsion that
ttie Trusteeship Council is cornpetent to make recommendritions
on innrters of inrciiial adiiiiiiiitration of South \\'est Afnca and hai
fostered other mi~conce~tio~~~~~ardint~ he status of this Territory.
In these circumstances the Union Govemment can no longer
special reports on South West Africa to the United Nations, andof
have regretfully corne to the conclusion that in the interests of
efficient administration no further reports should be fonvarded.
In comin to this decision the Union Govemment are in no way
motivatea by a desire to withhold from the world factual and other
information regarding South West Africa published in accordance
with the customary practice of democratic nations, and information
ofthis nature previously embodied in annual reports to the League
of Nations or the United Nations will continue to be made available
to the general public in the form of statistics,departmental reports,
reportsby the Administrator to the South West African Legislature,
blue books, and other govemmental publications". '

At the Fourth Session of the Generai Assembly in September,
1949 ,he South African representative (with reference to the afore-

' U.N.Doc. Algzg.inC.A..O.R..Fourfh Scss.Fourlh Comrn.Annrx,p. 7. PRELIMINARY OBJECTIONS OF SOUTH AFRICA
267.
said letter) deait fuiiy with Respondent's decision to discontinue
the submission of reports. 1

12. In the ~remises aforestated the followine statements bv the
Applicants rêgardingthe events over the yeays 1946 to 196 are
unfounded :

(a) "The Union's announcement [that submission of reportswould
be discontinued] signalled its repudiation of previous explicit com-
mitments". 2
There was neither an explicit commitment nor a repudiation.
From the outset Respondent had made it clear that reports would
be submitted voluntarily, for information purposes only and not
in recognition of any supervisory functions vested in the United
Nations.

This was Respondent's attitude throughout and was explicitly
repeated in statements to, and correspondence with, the United
Nations over the years under consideration. When therefore, the
General Assembly failed to observe the reservations attached to
Respondent's undertaking, withdrawal thereof did not involve a
repudiation of a commitment. 3

(b) "By Nouember, 1948, the Union Gouernment was openly
denying its obligationsunder the Mandate and insisting-in contra-
diction .to its statements of a year earlier-lhat the Mandate had
expired".
In support of this contention Applicants refer to a statement by
Mr. Eric Louw, the representative of South Africa, in November,

1948, in which he referred to the "previous Mandate, since expired".
From the outset, and throughout the years under consideration,
Respondent had repeatedly stated its intention to observe the
"sacred trust" which it had assumed, and to administer the Terri-
tory "in the spirit of the Mandate".
In fact, the very statement of Mr. Louw, referred to above,
contained aiso the following:

"It is the firm intention of the South African Govemment to
administer the territory in the spirit of the mandate which was
originally conferred upon the Union, and that it will at al1times
promote to the best of its ability the wellbeingof al1sectionsof the
population.
In makin this statement, 1 am obliged to add that the words
'the spiritOf the mandate' should not be interpreted as including

' G.A..O.R., FourfSess..Fourth Com>n.,128th Meeting, 18th Novernbe1949,
p. 200.
' Vide Applicants' Mcmorials. 47.
a The General Assembly itself in this regard recgrded that Respondent had
"withdrawn its previous undertakin(G.A. Res. 337(1V)) in preference to earlier
propased wording objected to by Respondent to the eKect that it had "repudiated
its previous assurance.idcC.A.,O.R., FourlhSg,s.269th Plenary Meeting. 6th
De'eApplicants' Mcmoiinls. p. 47.268 SOUTH WEST AFRICA

obligations other than that stated in the preceding sentence. It is
unfortunately necessary for me to state this provisobecause of the
fact that thesame phrase, when used by the previous government,
waslater interpreted in a manner which wasnot in accordancewith
the intentions of thethen government". '
This attitude was repeated in the following statement of the
South African representative to the General Assembly on 6th

December, 1949:
"My Govemment is fully consciousof that trust, and whatever
our cntics may Say,it has never deviated fromthe path along which
it is endeavounng to lead the eoplesof South West Afnca to the
achievement of that degree of evelopmentwhich istheir right and
which it is my Govemment'sduty to ensure to them". '
On the other hand, Respondent had from the dissolution of the

League taken up the attitude that the Mandate in its original form,
and with the obligations iniposed therein, particularly that of
accountahility to the League of Nations, had not survived the
League.
Respondent, therefore, while denying that the United Nations
was vested with supervisory functions over South West Africa (an
attitude maintained throughout) at the same time intimated that
it would observe the "sacred trust" assumed under the Mandate
and would administer the Territory in the spirit of the Mandate
(alsoan attitude maintained throughout).

(c) "It is apparent from the history summarizedabovethat in the
period 1946-1949,the Union'spolicy concerningthe Mandateunder-
went a marked change.At thebeginningof the period, the Union
concededthe existenceof the Mandate and its obligations thereunder.
includingthat of rendering reportsto the United Nations. By the end
of theperiod,the Unionwas rejerringto theMandateas 'theprevious
Mandate, since expired', insisting that the administration of the
Territory was a matter solely of interna1 concern, andrefusing to
render reportstothe United Nations". 4

Respondent's policy underwent no marked change over the period
1946-1949, particularly in that :
(i) At no time after the dissolution of the League did Respondent
concede the existence of the Mandate in its original form and as
stiU encompassing its original obligations.
(ii) Respondent throughout denied that the United Nations was

vested with any supervisory functions in respect of South West

76th Meeting. 9th November: ,948. p. 293...O.R., Third Sers.. FouComm.,
' Verbatim textA summary appears in G.A., O. R., FouScss..269th Plenary
Meeting. 6th Decernber, 1949, pa9.p. 524.
' Videc.gstatement by Field-Marshal Smuts of November. i946, quoted in para.
z suproand extract from lettofzjrd July. r947, cited in 5asupra.
' Applicants' Mcmorinls, 48. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 269

Africa and throughout denied that it was obliged to render reports
to the United Nations.
(iii) Respondent throughout maintained its expressed intention
to observe the "sacred tmst" which it had assumed andto adminis-
ter the Territory in the spirit of the Mandate.

13. The statement by the representative of Liberia quoted at
page 47 of the Applicants' Memorials, to the effect that Respondent
wished to have the annexation of Soiith West Africa accepted as a
"fait accompli", was unfounded and was, at the time, specifically
denied by the South African representative who said, inler alia,
the following:

"1 endeavoured to prove to the Committee that not only was
the closerassociationbetween the Unionand the temtory, ..within
the authonty conferredupon my Govemment hy the mandate, but
al-o~that it was not 'annexation'-the territorv havine r"tained its
separate identity ...
Yet my Government was accusedof having unilaterally annexed
the temtory and of having placed this organization hefore an
accomplished fact. This criticism was maintained throughout our
debates-and that despite the facts of the case to which my dele-
gationrepeatedly drew attention. Surely, argument however frank
and bonest. cannot prevail uiider such circumstances". '
The General ~ssembly, in Resolution 227 (III) of 26th November.

1948, took note of Respondent's assurance that its contemplated
legislation for closer association "does not mean incorporation".
Respondent had previously made it clear that it did not intend
proceeding uith its proposal to incorporate South West Africa in
the face of the United Nations' rejection of that proposal. a

14. The General Assembly in 1949 decided to ask the Court for
an Advisory Opinion, but not only for the reason stated by the
Applicants, namely, that Respondent's concepts of its legal obli-
gations under the Mandate were essentially at variance with those
of most other United. Nations Members 3-it was also because the
other United Nations Members were not in agreement as to Res-
pondent's obligations, particularly with regard to the submission
of a Tmsteeship Agreement for South West Africa. '

THE PERIOD1950-1960
Introduction
15. A portion of Applicants' Memorials with the same heading
as the above contains a brief summary of events over the period
--
' Verbatim text.A surnrnaryappears inC.A., O.R., Fourlh Sers.. 269th Plenary
Meeting, 6th Decernber rg+g. parasrj andr.,. p 524.
a Vide e.gparas. zand 5 supva.
' Applicants ' cmorialr,p.48.
U.S.Aidn "Intcrndimdat$&lus of South-Wesl AtricPlcodings,OrniAargumcnls.DO-
cumcnfs", pp.ixz-zg.
Memorials, pp.48-51270 SOUTH WEST AFRICA
1950-1960. The broad outlines of fact as presented therein are

substantially correct; but certain statements require comment with
a view to proper perspective.
(a) The importance of the "restrictive nature" of the Ad Hoc
Comrnittee's terms of referencel will be dealt with below in the
year-by-year chronology of events. There was, however, a further
important reasori, also reverted to below, for the failure of the

negotiations between Respondent and this Cornmittee. This was
the insistence by the majority of Members in the General Assembly
that Respondent should place South West Africa under United
Nations Trusteeship-despite Respondent's objections and the
Court's Opinion that it was not obliged to do so.
(b) While the reports of the Committee on South West Africa

have in fact "annually criticised the Union sharply for the manner
in which the Union administers the territory", 2 the question
whether the cnticism was justified cannot be canvassed herein3.
Respondent on many occasions protested that the Committee's
findings were based on unreliable information and were unjustified.

(c) The statement that "the Union has refused to CO-operatewith
the Committee" ' (on South West Afnca) is an over-simplification,
poisibly derived from the Committee's own interpretation of the
situation. The statement is correct insofar as it signifies that Res-
pondent waj not prcpared to accept supervision br the Corniiiittee
of the administration of South West Africa. Failure o~ ~ ~~~iat..,s.
however, was again due mainly to the restrictive tetms of reference
on which the Committee was to negotiate, as will be dealt with

later.
(d) The account of negotiations between Respondent and the
Good OfficesCommittee 'makes no mention of the fact that there
mas, as between Respondent and that Committee, agreement as to
the possibility of an approach which merited investigation, but

that the Cornmittee's recommendation in that regard was rejected
by the majority in the General Assembly-a matter more fully
dealt with later. Moreover, the words "existing rights of the United
Nations to supervise the administration of the Mandate" ' beg
the question in respect of one of the vital issues requiring nego-
tiation. For reasons to be dealt with later, Respondent was unable
to accept the 1950Advisory Opinion of the majority of the Honour-
able Court, with regard to supervision, on which opinion the refer-

ence to "existing rights" is apparently based.
(e) The statement that "repeated debates and resolutions have
failed to bring about the Union's compliance with the Mandate"

Ibid..p. 49.
Ibid..p.50.
'Memorinls..p.50..i aup*n.
Ibid., p. 5,. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 27r

also involves an assumption consistently disputed by Respondent.
Respondent maintains that it faithfully honours the spirit of the
Mandate in the administration of the Terntory (a matter not can-
vassed herein) ' and that it oures no accountability to the United
Nations in respect thereof, a matter fully dealt with later.

Szrnzmaryof the Court's Advisovy Opinions:

16. Applicants' summary of the Court's three Advisory Opinions
as set out in the Mernorials 2 does not require comment Save
that witb regard to the Advisory Opinion of 11th July, 1950. Res-
pondent desires to draw attention to the following:
(a) The following quotation from the Opinion of the Majonty,
namely, that Respondent's obligations under the Mandate

"represent the very essenceof the sacred tmst of civilization.Their
raison d'êtreand original object remain. Since their fulfilment did
not depend on the existenceof tlie 1-eagueofNations,they couldnot
be brought ta an end merely because this supervisory organ ceased
ta exist. Nor could the right of the population ta have the Temtory
administered in accordance with these mles depend thereon",

was clearly intended to apply only ta the obligations relating ta
the administration of the Territory, and not to the obligations
relating to the machinery for implernentation, i.e. the obligations
to accept international supervision and to submit reports. The
last-mentioned obligations were stated by the Majority of the Judges
to he "an important part of the Mandates System".
(b) Applicants' statement that

"The Court affirmedthe Union'sinternational obligations under
Article zz of the Covenant and under the Mandate. including the
duty to render aniiual reports and to transmit petitions from in-
habitants of the Territory, and confirmed as well the power,of the
United Nations to exercisesupervisory functionsand to receivethe
annual reports and petitions",

reflects the Majority Opinion only. Two Judges (Judges McNair and
Read). dissented, expressing the view that the supervisory powers
of the League had not passed to tlie United Nations, and that
Respondent was not obliged to submit reports and transmit peti-
tions to the United Nations.
Respondent will not deal here with the reasons advanced by the
Court for its tonclusions, but wiii do so in stating Respondent's
legal contentions in Chapters III to V below.

' VidePart A, para.r supra.
"lnfcrnnfionnl rtnO/sSouth-West Africo. Aduisory Opinion: I.C.J. Repotts
1950".P. 133.
' Ibid.p. rj6.
' Mcmorinlr,p.52 272 SOUTH WEST AFRICA

Year-by-year Chronologyof Relevant Evenls: 1950-1960

1950
17. When the Fourth Committee considered the Court's Ad-
visory Opinion of the 11th Juiy, 1950, the South African represen-
tative stated at the outset that Respondent's attitude to the
Opinion could only be defined in the light of the debate in, and any
resolution which might eventually emanate from, the General
Assembly. He assured the Fourth Committee that Respondent did
not wish to close the door to a friendly solution of a question which
had been in dispute for solong and hoped that the United Nations
wouid not do so either. He pointed out that while the Court's
Opinion was entitled to the greatest respect, it was not automatically

-binding on the parties concerned, as would be a judgment.
Furthermore. since the Court had given its Opinion, important
facts had come to light bearing directly on the reasoning and con-
clusions of the Court with regard to certain material points. He
contended that if these facts had been placed before the Court it
would probably not have come to the conclusion reached (in the
Majority Opinion) witb regard to transfer to the United Nations
of the League's supervisory functions.
As to the additional facts which had come to light he dealt at
length with the circumstances surrounding, and the developments

'leading up to, the adoption by the League of its resolution of 18th
April, 1946, with special reference to the first Chinese draft reso-
lution.'
He stated that the additional information had to be carefully
weighed and considered by his Govemment together with:
(a) the fact that several widely varying interpretations of the
Court's Opinion had been put fonvard in the Fourth Committee;
and

(b) the attitude of the United Nations in regard to the inter-
national position of South West Africa as expressed in any resolu-
tion by the General Assembly.
He concluded his staternent as follows:

couldopossibly be interpretedcasmbinding my Government in any
way until it has had every opportunity of considering fully and
carefullythe wholeproblem in al1its aspects".'

18. While it was evident that the majority of Members of the
United Nations were prepared to accept the Advisory Opinion,
there was a difference of view in regard to the manner in which the
Opinion was to be implemented. Some members favoured ari
immediate decision to set up an ad hoc body to deal with annual

'Vih PartA,para.35supra.
VerbatirrtcxtA sunimary appears in C.A.. O.R.. FScss.FourlbComm..
196thMeeting 4thDecember. 1950.para.52,p.364.(Vidc alw paras41-51.pp.
362-64.) PRELIMINARY OBJECTIONS OF SOUTH AFRICA *73
reports and petitions, while others felt that a hasty decision would
prove ineffective, that the Fourth Committee acting unilaterally

had no right to set up and impose supervisory machinery and that
Respondent's CO-operation was essential. This resulted in the
eventual adoption of a compromise resolution (449 A (V)) accepting
the Court's Advisory Opinion and, inter alia, establishing an Ad
Hoc Committee,

(a) to confer with Respondent on the "procedural measures
necessary for the implementation of the Advisory Opinion"; and
(b) to examine reports and petitions. l
19. Respondent could not support the adoption of this resolution,

and explained to the General Assembly that, in its view, the reso-
lution, inter alia;
(a) took no account of the additional facts referred to in para-
graph 17 above;

(b) established unilaterally, despite Respondent's protests, ma-
chiner~ for the examination of reports and petitions;

(c) assigned these supervisory functions to the very body created
for the purpose of conferring with Respondent on the implemen-
tation of the Court's Opinion; and
(d) restricted the terms-of reference in a way which held out
little hope of fmitful discussions.

20. Although Resolution 449 A (V) created machinery for nego-
tiation, the General Assembly on the very same date adopted
Resolution 449 B (V), again urging Respondent to place South West
Africa under the United Nations Tmsteeship System.
The inconsistency of on the one hand offering "negotiations"
with a view to amicable settlement of a dispute. while on the other

hand making what in effect amounted to an extreme. demand
relative to that dispute, namely United Nations Trusteeship for
South West Africa, was to become a regularly recurring feature
in the history of this matter.

21. Applicants' statements that,
"The Union, howeuer,madeit clearvery earlythat it would not act
in accordwiththeAdvisory Opinion ..."a
and

"TheUnion'srejectionoftheCourt'srzelingsin ils AdvisoryOpinion
was made mani/est.fromtheoutset", '
are incorrect, particularly insofar as the context appears to suggest

-hat such an attitude was displayed in the 1950 debates of the
1C.A. Resolulion449A(V). 13thDecember, ,950,inG.A.. O.R.Fifth SesS.up-
Xo. zo (Alr775). PP. 55-56.
G.A.. O.K.,Fiflh Sers.. yznPlenary Meeting. 13th Decernber. 1950,629.
a Applicants' Mernorials. p. 55.
Ibid.. p. 56. SOUTH WEST APRICA
274
General Assembly. Indeed, Respondent made it clear at the outset
thatit would be able to defineits position with regard tothe Court's
Opinion only after careful consideration had been given to the
debates and to any resolutions which might be adopted. (Vide
para. 17 above).
The observation of the representative of China, as cited by

Applicants,' in no way affects the significance of the additional
facts relied upon by Respondent, as will be further demonstrated in
Chapter III below.

'95'

22. Respondent. despite its opposition to Resolution 449 A (V)
and its expressed views regarding the profitability of the proffered
negotiations, agreed to confer with the Ad Hoc Committee on South
West Africa in an effort to arrive at a definite settlement of the
South West Afnca question. *

23. In the course of the discussions which ensued, the South
Afncan representative em~hasised that the Court's Opinionwas
advisory and thus not binding either upon the United Nations or
upon Respondent. He explained fully the reasons why Respondent
could not accept the Court's Opinion relating to accountability to
the United Nations as a supervisory authority in succession to the
League. Nevertheless, his Government realised that negotiation
would be impossible if it were to maintain its standpoint rigidly.

24. Respondent accordingly expressed its preparedness, in
deference to the wishes of the General Assembly, to negotiate a
new international instmment embodying those obligations of the
Mandate which, in the view of the Court, related directly to the
"sacred trust" (Articles z to 5 of the Mandate). and. if considered
necessary, also an obligation, similar to that of Article 7 of the
Mandate, to submit to the jurisdiction of the International Court
of Justice. Thereby the difference of view as to whether the Mandate

had lapsed or not would be rendered a matter of no further practical
imporiance.
The new international instrument would be concluded with the
three remainine Princi~al Allied and Associated Powers of the
First World ~>r rance the United Kingdom and the United
States of Amenca) asprincipals and not asagents of the United
Xations. These three Powers were historically associated with the
Mandate, were permanent members of the Security Council of the
United Nations and had a recognised position in international
affairs.'

' Ibid., p55-56.
Vidc U.N. Doc.AlAC.49ISR.2.,>p. 2-4.
a Vidc U.N.Docs.AIAC. 491SR. 3and 7.
U.N. Doc.Alrgor. in C.AO.K..ixihScrs.. Annrx(Agendaitern38)pp.2-11. PRELIMINARY OBJECTIONS OF SOUTH AFRICA
275
25. The Committee felt that Respondent's proposals "did not
give the United Nations a sufficient role".' The South African
representative accordingly indicated that, after further consider-

ation, his Government was prepared to accept a compromise where-
by the idea of a fresh agreement with the three Powers should be
sanctioned bv the United Nations ri orto the nerrotiation of such
an agreement.
This still did not satisfy the Committee, and after further consi-
d~~ation Resoondent intimated its willinrrness to have the actual
agreement su'hmzted to the United ~atitns for confirmation.
The South African representative further indicated that if the
Committee considered Respondent's proposal as falling outside

its terms of reference, he would be glad to'submit to his Govern-
ment any suggestion from the Committee indicating how the
proposal could be brought within the Committee's competence.
26. Despite the concessions offered by Respondent. the Com-
mittee found the proposal unacceptable "because it did not allow

for a full implementation of the advisory opinion" and "could not
therefore be considered as within [its] terms of reference".
The Committee in turn proposed a draft agreement emhodying
the terms of the Mandate in a modified form, and providing, inter
alia, for new supervisory machinery under the United Nations. '
27. Respondent's representative explained to the Committee
the reasons why Respondent could not accept the principle of

accountability to the United Nations embodied in the Committee's
proposal.
He emphasised that it would be virtually impossible to come to
any arrangement involving such accountability without extending
the obligations which Respondent had assumed under the Mandate.
This was evident from the broader membership, and the fundament-
ally different structure, of the United Nations as compared with
the League of Nations. The most important differeiice in structure
was that relating to voting procedure, in that the League rule of

unanimity did not apply in the United Nations. This was of par-
ticular significance in view of the basic ideological differences
existing within the United Nations.
28. In a letter to the Ad Hoc Cornmittee on the 20th September,
1951, Respondent reiterated the basic elernents of the concessions

which it aas prepared to make in an effort to achieve a settlement
which would "satisfy the major desires" of the United Nations and
of Respondent, and expressed regret that the Committee had felt
that the proposal would not be acceptable to the General Assembly.

' Ibid.. para.2(d),p.5.
Ibid., para25.
Ibid.paras. 26and 27,pp. 5-6.
' Ibid.. para. 27.pp. 5-6.
' U.N. DOC.AIAC. 49ISR. II,p. 7276 SOUTH WEST AFRlCA

On the other hand, the Committee's proposal did not provide for
certain requirements considered by Respondent to be basically
essential. If these were reco~nised, Respondent would not be un-
willing to concede certain baGc requirements of the United Nations,
such as the ~rinci~le of international accountabilitv and ~rovision
for~united Nations approval for any chan~e in t-e international
status of the ~erritory:
Respondent. also reiterated the difficulties experienced in the

submission of re~orts to the United Nations. and Dointed out that.
while it was no: prepared to submit reports, information on the
Territory from official sources was "always available." l
29. The Ad Hoc Committee, however, intimated that Respon-
dent's proposa1 was "not within its terms of reference", and ex-

pressed its willingness to continue negotiations on the basis of its
own counter-proposal.
30. Respondent remained desirous to seek a mutually satis-
factory solution. Before negotiations could, however, be resumed,
the Fourth Committee on 16th November, 1951, at the Sixth

Session of the General Assembly, granted oral hearings to peti-
tioners on South West Africa. a
This decision was taken despite Respondent's repeated intima-
tions that it did not accept accountability to the United Nations,
and in spite of the fact that implementation of the Court's Advisory
Opinion, including the question of petitions, was a matter on which
negotiations were still in progress; this seriously hampered nego-
tiations. '

1952
31. The Sixth Session of the General Assembly on the 19th
January, 1952, adopted Resolution 570 A (VI) reconstituting the
Ad Hoc Committee for the purpose of "conferring" with South

.4frica "concerning means of implementing the Advisory Opinion".
At the same time, however, and despite Respondent's protests,
the Committee was authorised to examine reports and petitions
with regard to South West Africa.
The Assembly also reiterated its previous resolutions pressing
for South West Africa to be placed under United Nations Trustee-
ship. 5

32. Respondent had doubts as to the likelihood of fruitful results
flowing from further negotiations with the Ad Hoc Committee.

' LIN. Doc. r\/,gor. par32,pp. ,-S.
' Ibid., par33,p. S.
a LIN. Dot. AlC.41igoinC.A., O.R.. Sixth Sess., Annexes (Agendaitem3S), p.r7.
' Vide C.A., O.R., SixScss.,FourlhComm.. 204th Meeting, 16th November,
1951. PP. 17-19.
Xo.C20(A12119)p.o64.70 B (VI), 19th January. 1inG.A..O.R., Sixth Sess..Sup. PRELlMINARY OBJECTIONS OF SOUTH AFRICA
277
These doubts were founded upon the following considerations,
pointed out to the United Nations on various occasions:

(a) The divergence in the views held by Respondent and the
majority in the United Nations. Respondent, while carrying out
the spirit of the "sacred trust" which it had assumed under the
Mandate, did not recognise accountability to the United Nations
in respect of its administration of Sciuth West Africa, whereas the
majority in the General Assembly held the view that Respondent
was ohliged to account to the United Nations and in fact continued
to press for a trnsteeship agreement for the Territory.

(h) The manner in which the South West Africa issue had been
dealt with in the United Nations, particularly the acrimony dis-
played by some members in the debates, marredobjectiveconsider-
ation and jeopardised negotiations.

(c) The restrictive nature of the Committee's terms of reference,
which left little hope for a compromise inasmuch as it required
Respondent to accept accountability (in accordance with the
Majority Opinion of 1950)as the only basis for negotiation.
Responclent was, however, desirous of arriving at an amicable
arrangement and was therefore prepared to explore al1 avenues.
On being assured by the Ad HocCommittee in 1952that its "terms
of reference were such as to allow it to discuss any reasonable

proposal", negotiations were resumed in September, 1952.
33. In the circumstances Respondent hoped that its proposa1
of 1951 would be reconsidered on its merits. In re-submitting
that proposal the South African representative contended that
agreement had been reached in principle with regard to the revival
of the clauses of the Mandate dealing with the "sacred trust".

Moreover, Respondent had agreed on the fundamental principles
which the Committee regarded as essential. the only exception
being the handling of annual reports and petitions. In this 1st re-
spect his Government, depending on satisfactory progress of the
negotiations, would be prepared to go somewhat further; it would
make available information on its administration to those with
whom a new instrument would he concluded.
While the new instrument would be negotiated with the three
Principal Allied and Associated Powers as principals, its general

principles would have to be approved by the United Nations and,
if found acceptable, the United Nations would ascertain whether
the three Powers were prepared to act as the second party. Before

' U.N. DOc.A/zz61. para. 7.inC.A., O.R.,EighthSess.,Anncxes(Aitem361
p.2.
Vide para. zq scysupra.
*The representative of the United States of Americaonlyone of the three
Powers represented on the Ad Hoc Cammittee-hadindicated his Government's
willingness in principle to act as a member of the second party if the United Nations
agreed. Vide U.N. Doc. A/AC.qg/SR.p.3.278 SOUTH WEST AFRICA
the new instrument could come into force the United Nations would
have to approve it, thus having a double opportunity of examining
the instrument. '

34. The Committee enquired whether Respondent would make

available annual reports as complete as those furnished to the
League. The South African representative replied that under its
proposal, his Government wouid supply annually to the three
Powers information on South West Africa as complete as that
furnished to the League of Nations on the basis of the Permanent
Mandates Commission questionnaire.
Upon a further enquiry from the Committee, whether Respondent

would recognise the principle of international supervision under a
procedure as nearly as possible analogous to that under the League,
the representative stated that Respondent's attitude wouid depend
on the progress of the negotiations on al1the other points.
He tberefore again pressed the Committee for its views on the
merits of Respondent's proposal, stating that to facilitate agree-
ment, Respondent had made considerable concessions and had

indicated its readiness, under certain conditions, to make further
proposals. P

35. While the Committee expressed its appreciation of the efforts
made by Respondent and noted that Respondent had extended its
1951 proposal, the Committee insisted on accountability to and
supervision by the UniteN dation secause it felt that its terms of
reference so iequired. J

36. Despite the fact that the negotiatious were not conclusive,
by the end of 1952 the Committee was able to record that there

was agreement in principle on the followingpoints:
(a) That a new instrument, replacing the former Mandate for
South West Afnca, should be concluded;
(b) That the new instmment should revive the "sacred trust"

contained in Articles 2.10 5 of the Mandate, with minor modifi-
cations which would not affect in any way the principle of the
"sacred trust" ;
(c) That, under certain conditions, Respondent wouid make
available information on its administration of South West Africa;

(d) That such information would be as full asthat once supplied
under the Mandates System; and
(e) That there should be some form of supervision of the ad-
ministration of South West Africa. 4

Vide U.N. Doc. A/zz6i, para11-13pp. 2-3.
Ibid paras. 15an16.pp. 3-4.
J Ibid., parzo,p. 4.
Ioid.. par23.p. 5. PRELIMINARY OBJECTIONS OF SOUTH AFRlCA
279
37. The points of difference, as also recorded by the Committee,
were to the following effect:
(a) How supervision of the administration of South West Africa
should be carried out:

The Committee insisted on United Nations supervision, "even
though it should not exceed that which applied under the Mandates
System". On the other hand Respondent had come to the conclu-
sion that any obligation which would carry with it supervision by
the United Nations, would be more onerous and would go beyond
the obligations undertaken under the Mandates System.
(b) The second party to the proposed instrument:

Respondent could not contemplate concluding an agreement
directly with the United Nations, although the agreement which
it was prepared to negotiate and conclude, would have to be
approved by the United Nations. On the other hand the Committee
considered that the agreement should be concluded with the United
Nations or with an agency appointed by it. l

38. From the above it is clear that, far from Respondent frus-
trating the Ad Hoc Committee's efforts at negotiation-as is alleged
at page 58 of Applicants' Memorials-the substantial measure of
agreement which had by the end of 1952 actually been reached
between Respondent and the Committee was due to the fact that
Respondent was prepared to make proposals and concessions in
regard thereto. Whatever fmstration there was, resulted, in fact,

from the Committee's restrictive terms of reference.

1953
39. The inconclusive negotiations of 1952were resumed in June,
1953, when the South African representative again requested that
the Committee, as a whole, state its views with regard to the essen-
tial elements of Respondent's proposal.
The Committee intimated that, inasmuch as Respondent wished
the three Powers to act as principals and not as agents of the United
Nations, the proposal did not provide means for implementing the
Advisory Opinion, and that the Committee was therefore unable

to accept the proposa1as a basis for detailed discussion.
40. The South Afncan representative referred again to Res@n-
dent's view that it would be well-nigh impossible to devise any
arrangement whereby Respondent would be accountable to the
United Nations for its administration of South West Africa without

extending the degree of supervision and, therefore, Respondent's
obligations. And he enquired how the Committee proposed to
cope with the difficultiesin this regard, especially the absence of the
unanimitv mle in the United Nations voting procedure.

'Ibid., par24p. 5.280 SOUTH WEST AFRICA
The Committee was, however, not prepared to enter into that

enquiry until Respondent had accepted the principle of-United
Nations supervision. This Respondent could not do without the
assurance that its obligations would not be extended. Respondent
reiterated its willingness to consider proposals which would not
involve such extension. The Committee, however, did not attempt
to show how United Nations supervision could be devised without
extending Respondent's obligations. '

The negotiations consequently did not lead to positive results.
41. At its Eighth Session the General Assembly, on 28th Novem-
ber, 1953,rejected Respondenï's proposa1tothe Ad Hoc Committee
and established the Committee on South West Africa with functions
as set out in Resolution 749 A (VIII). 2

These functions in essence amounted to
(a) exercising supervision over the administration ofthe Territory,
and,

(b) negotiating with Respondent for the full implementation
of the Advisory Opinion.
The South African representative explained to the Fourth
Committee that Respondent could not support this resolution, as
it required Respondent to submit to United Nations supervision
as a basis for CO-operationwith the Committee, left the Committee

no scope for negotiation beyond that basis, and combined a super-
visory function with that of sa-called "negotiations". *
In the cimumstances, those who supported the adoption of
Resolution 749 A (VIII) were aware that no CO-operationwith such
a Committee could be expected from Respondent; and they must,
therefore, have realized that the Committee's supervision would be
one-sided and thus defective.

42. Furthermore, the proffered "negotiations" were again
coupled with a resolution urging the conclusion of a United Nations
trusteeship agreement. 4

1954

43. When the Committee on South West Afnca invited Respon-
dent to confer with it, Respondent replied that it was
"doubtful whether there is any hope that the new negotiations
within the scopeof your Committee's ternis of referencewilllead to
any positive results".

'LIN. Doc. AIzq75, para8-rg.in C.A., O.R..Eiphlh Srss.. Annexer(Agenda item

36).C.A. Rrsolulion 749 A(VIII28th Novernbe~, 1953. inC.A.,O.R., Eighth Sers.,
SlcP.So. 17(A/z63o), pp. 26-27. (Vide ako Applicants' Mcmorials. pp. 59-61).
C.A., O..H.. EighSeas., Fo'ourlhComm~6-rd Meeting, 12th November. 1953.
para. 32, p. 306.
'C.A. Rrsolution 749 B(VII128th Sovember. ,953, inG.A.,O.R.. EighlhScss..
Sup.So. 17 (A!2630)pp. 27-78 PRELIMINARY OBJECTIONS OF SOUTH AFRICA
281
This reply was communicated to the Chairman of the Committee
in a letter dated the zgthMarch, 1954, wherein Respondent's reasons
for its view were set forth in full. 'The letter is quoted at pages 62

to 64 of the Applicants' Memorials.
The Committee confirmed Respondent's doubts by replying that
it could not
"enter int.0discussionof roposalswhichare not designedto imple-
ment fullythe Advisorygpinionw. *

Inasmuch as this reply signified that negotiations could only
take place on the bais of acceptance by Respondent of United
Nations supervision, Respondent had no alternative but to decline
the Committee's invitation.

. 44. As regards the supervisory functions contemplated for the
Committee on South West Africa, Resolution 749 A (VIII) directed
that the practices and procedures which had applied to supervision
of Mandates by the organs of the League of Nations should be
observed as far as possible. 3
It was, however, inevitable that supervision in pursuance of the
said resolution would differ substantially from that which had

applied under the League of Nations. particularly in the following
respects :
(a) Unlike the Permanent Mandates Commission, which was
"a commission of experts-of high standing and independent of
Governments", the Committee on South West Africa was com-
posed of political representatives of hlember States, the selection of
individuals being left to the discretion of the States elected to serve

on the Committee. The members of the Committee, in exercising
their supervisory functions, thus did not stand apart from the
political views of their governments.
(b) In the League the ultimate supervisory body was the Council,
the voting procedure of which was subject to the unanimity mle.
The corresponding supervisory organ in the United Nations, as
contemplated by Resolution 749 A (VIII), >vas the General Assem-

bly, in the voting procedure of which the unanimity rule did not
apply-Article 18 of the Charter providing only for decisions by
a majority, or in the case of certain matters, by a two-thirds
majority.
The combined effect of the differences mentioned in (a) and (b)
above would inevitably render supervision in pursuance of Resolu-
tion 749 A (VIII) more onerous for Respondent than that which had
applied under the League.

' C.A.,O.X., Ninlh SesrSup.No. rq(Ai2666).Annex I(c), pp6-8.
' Ibid., Annex I(d). 7-8.
' "Soulh-West Africn-VolingProcedure. Advirory OpinioofuJunc 7th;1955:.
I.C.J. Repo*I19.75"p. 95. Vide alço Part A. para. r4 ruprn.282 SOUTH WEST AFRICA
45. When the Committee on South West Africa requested Res-
pondent to submit reports, 1 this request was declined for reasons

fully stated in Respondent's letter of 25th March, 1954. which is
quoted in Applicants' Memwials at pages 62 to 64. Respondent's
position in this regard was further explained to the General Assem-
bly at its Ninth Session, where the South African representative
pointed out that the Committee had been established despite Res-
pondent's objections and that Respondent was thén invited to
CO-operateon a basis unilaterally determined by a majority in the
General Assembly. His Government could obviously not accept an

arrangement which had been decided on against its wishes and
which failed to take into account its essential requirements. It was,
therefore, unable to recognise the Committee or the legitimacy of
the report which the Committee had drawn up.
With regard to petitions, Respondent's attitude was also clearly
stated in the letter of 25th March, 1954; and, in fact, Respondent
declined to participate in any United Nations proceedings con-
cerning petitions.

46. In the absence of reports from Respondent. the Committee
compiled its own report, relying on information from various official
and unofficial sources. This report contained many inaccuracies
and omissions of a serious nature, as well as erroneous conclusions.
The allegations contained in the extracts from the report, quoted
in Applicants' Memwials, 4 willnot be dealt with here.
Respondent did reply, in the Fourth Committee, to certain

allegations in order to indicate that some of the information on
which the report was based was unreliable and that the report
reflected serious misconceptions as to conditions in South West
Africa. "
47. In 1954 the General Assembly once more adopted a resolu-
tion urging Respondent to place South West Afnca under United

Nations Tmsteeship. '
48. The statement in the Memorials alleged to have been made
by Dr. Malan (then South African Prime Minister), on the 24th
August, 1954, was in fact issued by a political party in South West
Africa-the National Party for South West Africa. Itwas not made
by the Prime Minister, although, asNational Leader of the said

party, he had approved thereof. The statement answered a claim

' Vide U.N. Doc. A12666, Annex I(a). p. 6.
*C.A., O.R.. NiniSess.FourthComm., 407th Meeting. 15th October, 1954, p-a
36, p.66.
At pp. 64-65.
Vide PartA, para. i,rup~o.
Vidce.g.C.A., O. R.. Ninlh Sers.. Fourlh Comm., 407th Meeting, pp. 67-70.
C.A. Resolution 85z(IX), ~3rd November, 1954, in C.A., O.R.,SCSS..uP.
No. zi(A128go). p. 29.
' Quoted in the Mcmoriokp. 66. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 283

of an opposition party to the effect that the Temtory had acquired
a status independent of South Africa.

49. The General Assembly in 1954 also adopted Resolution 904
(IX), in which it asked the International Court of Justice for an
advisory opinion as to whether Special Rule F was a correct inter-
pretation of the Court's 1950Advisory Opinion: 'this mle concerned
voting procedure in the General Assembly on questions relating to
reports and petitions regarding South West Africa. Respondent did
not support this request for an advisory opinion for the reason that
it had not accepted the 1950 Opinion, especially with regard to
supervisory functions on the part of the United Nations. As Res-

pondent had throughout denied that the GeneralLAssemblyhad any
supervisory powers or functions in respect of the administration
of South West Africa, Respondent was not concerned with the
voting procedure adopted hy the General Assembly in the exercise
of the supervisory powers it had assumed in respect of the Territory
and, consequently, Respondent did not participate in the proceed-
ings before the Court in 1955.
Asthe correctness or othenvise of the 1955Advisory Opinion does
not anse for decision in the present proceedings, Respondent

refrains from commenting on the reasoning of the Court or its
conclusions in that Opinion.

'955
50. In 1955 the Committee on South West Africa again invited

Respondent.
(a) to confer with it on the implementation of the Court's 1950
Opinion ;and
(b) to assist the Committee in its supenisory task; in particular

to send a report.
In response, Respondent referred to its letter of the 25th March,
1954, and stated that as there had been no material change in the
position outlined therein, Respondent could not see that negotia-
tions on the basis of the Committee's restrictive terms of reference
would lead to positive results.
The Committee, in its reply of 10th June, 1955, stated that it
could only conclude that Respondent "is unwilling even to enter

into negotiations in order to implement fullythe Advisory Opini~n".~
While this was a correct conclusion, so far as it went, Respondent
was not unwilling to negotiate with the United Nations on a basis

' C.A.Rrsoluliongoq(IX).qrd Noveniber. 1954. iU.N. Doc. Alz8go. pp55-56.
' VideC.A.,O.R.. Tcnlh Scss., FourComm., 4grst Meeting, 3irt October. 1955.
para. g. p. r30.
CVide para.43supm.ess.. Sup. No. rz(A/zgijAnnex I(a). p6
' U.N. Dac. A/ZQW, Annex I(c). p. 7.
' Ibid.Annex I(d).p. 7. 284 SOUTH WEST AFRlCA

which did not as a prerequisite place impossible demands on Res-
pondent-an attitude fully explained to the Fourth Committee by
Respondent on the 31st October, 1955. '

51. The 1955 Report of the Committee (referred to at page 69
of Applicants' Memorials), suffered from the same defects and
shortcomings as that of 1954. The South African representative,
however, did not
"attempt to explain where the Committee had erred in its conclu-
sions,since the experience of the previous year had shown that
to do so would produce no fruitful result. Nor wonld he comment
on the inaccuracies and even untruths contained in the petitions
consideredby the South West AfricaCommittee.The previousyear,
without prejudice to his Government'sstandpoint on petitions, he
had endeavoured to arouse the Fourth Committee to the serious
implications involvedin the adoption ofthe resolutionson petitions
suggested by the South West Africa Committee. His statement,
however, had not been discussed at all; the draft resolutions had
simplybeenvoted onwithout any examination oftheir contents and
referredto the GeneralAssembly". '

52. In regard to the admission of oral hearings to petitioners on
South West Africa, Respondent's views were stated as follows:
"In the first place, the Union of South Africa did not recognise
the competence ofthe United Nationsto considerpetitions, whether
written or oral. In the secondplace, the system established by the
Charter made no provision for oral petitions except in the case of
Trust Temtories. Lastly, there had undouhtedly heen noprovision
forhearings in the procedureapplied by the League ofNations, and
the Permanent Mandates Commissionin patticular had not granted
any hearings properly so-called".

There was, in the initial stages of the discussions at the Ninth
Session of the General Assembly, a fairly general view in the Fourth
Committee that to grant oral hearings to petitioners would not be
in accordance with the procedure of the former Mandate System
and therefore not admissible in the Committee on South West
Africa.
A draft resolution to this effect was, however, withdrawn and,
instead, the Court was requested for an advisos. opinion as to
,whether it would be consistent with the Court's 1950 Opinion for
the Committee on South West Africa to grant oral heanngs to
petitioners.'

In view of Respondent's attitude regarding the 1950 Advisory
Opinion, and as to accountability to the United Nations. Respon-
dent did not support the request for an advisory opinion on the
'J!dc G.A.,O.R..TenlhS~rs. .ourlh Comm., qgrst Meeting. pp. 134-136.
'Ibid., para. 48, p. r35.
'Ibid.gmth Meeting, 8th Kovember, r955, para. 42,182.
'C.A. Rrsoluii 942(X). 3rd Decernber. 1955. C.A.,O.R..Tenth Sers.SUP.
No. i9(A/3116), p. 24. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 285
admissibility of oral bearings, inasmuch asthe request was confined

to an interpretation bf the 1950Opinion.
53. During the Tenth Session of the General Assembly, a further
resolution was adopted urging Kespondent to place South West
Africa under United Nations Tmsteeship. '

1956
54. In reply to a further invitation to Respondent by the Com-

mittee on South West Africa, to negotiate and to submit reports,
Respondent again referred to its earlier replies in 1954 and 1955
(Videparagraphs 43and 50supra)and stated, interalia, "as therehas
in the meantime been no matenal change in the position outlined
in my previous communications the attitude of the Union Govern-
ment remains unchanged". 2

55. Applicants quote extensively, at pages 70.71 of their Mento-
rials, from the Report of the Conimittee on South West Africa for
the year 1956. While denying that it failed in any way to observe
the spirit of the Mandate, Respondent will not deal with the alle-
gations contained in the report. The same applies to the extracts
from petitions contained in Chapter VI of the iMemorials and
referred to at the top of page 73 thereof.

56. For a proper understanding of the extract from the state-
ment of the South African Prime Minister which isquoted at page 72
of the Applicants' ~Wemorialsi,t should be read in the fuller context
given hereafter, namely :
"The hon. Senator Cowley suggested that in order to avoid

should forthwith proceed to annex South West Africas con...ed, we
May 1 Sayto him that the attitude of our Government and of the
previous Government, the Smuts Government was that as a result
of the disappearance of the old Leagueof Nations both the Smuts
Government, and the present Government have taken up the
attitude that there is no other body that has anything toayinsofar
as South West Africais concerned except South Africa itself and
that therefore it isllwithin our power and fullywithin Ourpower
to incorporate South West Africa as part of the Union. Up to now
we have declared unto the world that legaiiy and othenvise that is
the position, but that in the meantime we are prepared, although
wedo not for one moment recognizethe rights ofthe United Nations
Organization, even should we one day incorporate South West
Africa,to govern South West Africain the spirit ofthe oldmandate.
So, whether we wili proceed at a later stage to cany out and put
into effect what we regard as our rights over which nobody has
anything to Say, that will depend on how circumstances develop
in the future".

'C.A. Rcsolufian gqo(X), 3rd Decernber. ,95U.N.nDoc. A/jri6.
C.A.. O.R.. EleuenthSers., Sup. z(A/ji5i),Annex I(b).p.4.
Vide Part A. parI.supra.
' Liof S.A.. Povl. DeScnnfe,Vol.15 (1956)C.ols3631-32.286 SOUTH WEST AFRICA
57. With regard to the extracts from the 1956Advisory Opinion,
which are quoted at p. 72 of the Memorials, Respondent refers to
para. 52 above and will not deal with the reasons advanced by the
Court for its conclusion.

'957
58. At the 11th Session of the General Assembly an attempt
was made by some delegations in the Fourth Committee to find a
new bais for negotiations; but as this atternpt did not result in a

concrete proposal, Resolution 1059 (XI) was adopted, requesting
the Secretary-General "to explore ways and means of solving satis-
factorily the question of South West Africa." '
At the same tirne, the Liberian representative introduced the
usual resolution urging the placing of South West Africa under
United Nations Tmsteeship~ventually adopted by the General
Assembly as Resolution 1055 (X).
59. Also at that session a further step was taken in an attempt

to compel Respondent to submit to the wishes of the majority in
the Assembly, namely, the adoption of Resolution 1060 (XI) in
terms whereof the Committee on South West Africa was requested
to study the following question:
"What legal action is open to the organs of the United Nations,
or to the Membersof the United Nations.or to the formerMembers
of the League of Nations, acting either individually or jointly, to
ensurethat the UnionofSouthAfricafulfilsthe obligationsassumed
by it under the Mandate, pending the placing of the Territory of
South West Africa under the International Trusteeship System?" '

In Respondent's view this task could hardly be consonant with
the functions of negotiation and supervision already entrusted to
the Cornmittee.
60. At the 12th Session of the General Assembly, in October,
1957, a number of delegations appealed for a new approach on the
South West Africa question aimed at the resumption of negotiations
between South Africa and the United Nations. This culrninated in
the establishment of the Good Offices Committee (United States,

United Kingdom and Brazil) to "discuss with the Government of the
Union of South Africa a basis for an agreement which would con-
tinue to accord to the Territory of South West Africa an inter-
national status" (Resolution 1143 (XII)). '
61. The wider terms of reference of this Committee extended the
possibility of fruitful negotiations. The prospective negotiations

' C.A. Resolution 1059 (XI), 26th February. i9in C.A.,O.R., EleuozthSers..
SUP.No. 17 (AI3572). P. 30.
Of 26th February. 1957. U.N. Dot. A13572. pp. 28-29.
' C.A. Rcsoluiion roQ(X1). para. r, 26th February. ,9inU.N. Doc. A/3572.
P.'3C.A.Rerolutia ri43(XII), 25th October. 1957,G.A..O.R., Twel/Sess.Sup.
No. r8(A/@og). pp. 25-26; ,, PRELIMINARY OBJECTIONS OF SOUTH AFRICA 287

were, however, greatly jeopardised by the concurrent adoption of
other resolutions sponsored, inle7 alia, by the Applicants. These
included a further resolution calling for United Nations Trusteeship
for South West Africa, ' and a resolution calling for further study
of legal action on the South West Africa question. a
The inherent conflict between the act of "good offices" and the
adoption of these and other resolutions were pointed out by a
number of delegations, but attempts to suspend action on them
failed.
The attitude of Liberia is illustrated by the fact that, although

supporting the establishment of the Good Offices Committee, the
Liberian representative nevertheless "urged the members of the
Committee to consider the possibility of compuisory jurisdiction
of the Court".
The Ethiopian representative sponsored the resolution on legal
action and did not support the resolution establishing the Good
Offices Committee.
62. Respondent nevertheless, in piirsuance of its desire to arrive
at an amicable arrangement, accepted the invitation of the Good

OfficesCommittee to participate in discussions with it. The nego-
tiations with the Good Offices Committee took place in 1958 and
will be dealt with below under that year.
63. Regarding the contents of the Report of the Committee on
South West Africa, referred to at pages 44 and 45 of the Memorials,.
and the statement ofthe representative of Liberia quoted at page 46,
Respondent, while denying any violation on its part of the spirit of
the Mandate, will for the reasons previously stated not deal with

the factual questions involved therein. '
1958

64. In March, 1958, the GoodOfficesCommittee invited Respon-
dent to enter into discussions with it in terms of Resolution 1143
(XII). Respondent indicated that, while it could not reconcile the
1957 resolutions relating to legal action and urging a Tmsteeship
Agreement with the act of "good offices", it was nevertheless
impressed by the presence of a more conciliatory spirit,and invited
the Good OfficesCommittee to come to South Africa for discussions.
This the Committee did, and at the ccinclusionof the discussions in
South Africa, the members of the Committee were invited by Res-
pondent to visit South West Africa in their private capacities-
which two of the members did. In the record of the discussions the
Good Offices Committee paid tribute to the "spirit of frankness,

C.A. Rcsoluiioir4r(XII),25th Oetober, r957. in U.N. Doc. AI38og. pp. 24-25
' C.A. Resolution ir4z(XII25th October. r957in U.N.Doc. A13805. p. 25.
G.A..O.R.Twrl/thScsr.. FourihComm.659th Meeting. zndoctobe1957,para.
14.p. 36.
' Vide Part A, paraIsupra.
' C.A. Rcsolufionrrqr (XII) an1142 (XII)288 SOUTH WEST AFRICA
friendliness and desire to find a mutually acceptable basis for
agreement which animated the [South African] Government's

participation in the discussions". '
65. In the discussions Respondent expressed its preparedness
to enter into an agreement conceming South West Africa which
would specify that the territory possessed an "international charac-
ter", and that this character could be modified only with the consent
of both parties to the agreement-the agreement to contain pro-
visions along the lines of Articles2 to5 of the Mandate, as well as the
obligation to provide information on the administration of the

territory.
Respondent was, however, for the reasons already stated. not
prepared to accept the United Nations as the second party to such
an agreement. The Good Offices Committee, on the other hand,
felt itself precluded from considenng any party other than the
United Nations as the second party to an agreement.
66. After discussing other possibilities the Good Offices Com-
mittee mentioned inter alia "a suggestion that the partitioning of

the Territory might provide the basis for a solution". Respondent
intimated that it would be prepared to investigate the practica-
bility of partitioning as envisaged and, if found feasible, Respondent
wonld submit proposals to the United Nations.
Inits report tothe General Assemhly, the Good OfficesCommittee
expressed:
"the opinion that some form of partition under whicha part of the
Temtory would be placed under a tmsteeship agreement with the
United Nations and the remainder would be annexed to the Union,
might provide a basis for an agreement" ; and
"the hope that the General Assembly will theretore encourage the
Government of the Union of South Africa to carry out an investi-
gation of the practicability of partition. on the understanding that
if the invesligaliori pmves this approach to be practicable it will
be prepared to submit to the United Nations proposals for the
partitioning of theTemtory".

Respondent stressed, to the Good Offices Committee and the
General Assembly at its 13th Session, that the envisaged investi-
gation would have to be directed inte rlia at ascertaining the view
of d the inhabitants.' And Respondent explained that its willing-
ness to contemplate, in this context, the United Nations as the
second party to an agreement was due to Respondent's desire to

find a compromise, and the fact that it was inherent in the sugges-
tion that the area which would be placed under United Nations
' U.N. Doc. A13gm. inC.A., O.H.. Thirlecnlh Selnncxcr (Agendaitem 39)
para. ro.p.3.
U.N. Doc.Ai3gw.
Ibid.. par47. p.8.
Ibid.. par52(6)and (7).p.IO.
' C.A..O.R.. Thirfeenfh Sers., FouComm.. 745th Meeting. 29th September.
,958. paras. 20-23.15. PRELIMINAHY OBJECCIOZIS OF SOUTH AFRICA ~~9

trusteeship, would probably contain Bantu peoples only, thus
eliminating the major difficulties which had prevented Respondent
in the past from accepting United Nations accountability. '

67. When the Report of the Good OfficesCommittee came before
the Fourth Cornmittee at the 13th Session of the General Assembly,
Respondent appealed for discussion thereof separately from the
other aspects such as suggested legal action and the Report of the
Cornmittee on South West Africa, so as to avoid acrimonious

debate which would not be conducive to constructive negotiation.
The majority in the Fourth Committee, including both Applicants,
however opposed a separate discussion, and rnoreover acceded to a
request from petitioners for oral hearings specifically on the sub-
ject of the negotiations, despite the protests of Respondent and
others.

It was in such circumstances that the South African representa-
tive stated:
"Even before the vote it had been apparent [rom the procedural
debate that a number of delegations had come to the Assembly
determinedto wreck the work of the Good OfficesCommittee.That

course of events confirmed his Govemment's contention that the
forum of the United Nations was being used for the purpose of
waging propaganda and ideological warfare against a member
State. The Union Governmenthad not expectedthose developments
when it had agreed to enter into discussions with the Good Offices
Committee; on the contrary it had expectedthat its proposaiswould
be considered seriously and without prejudice". a

68. A resolution was adopted (Resolution 1243 (XIII)); rejecting
the Good Offices Committee's suggestion that the partition idea
be investigated; and requesting it to renew discussions with Res-
pondent to find a basis for an agreement which would continue to
accord to "South West Africa ns a whole an international status

and which urould be in conformity \\rith the purposes and principles
of the United Nations", bearing "in mind the discussions at the
13th Session of the General Assembly". a (Italicsadded.)
69. Again Respondent refrains from dealing with the extracts

from the Report of the Committee on South West Africa referred
to at pages 75 and 76 of Applicants kJemorials. '
70. At the same Session. the General Assembly adopted a reso-
lution, which had by now become standard, calling for South West

Africa to be placed under United Nations Trusteeship.
.. .. .
U.N. Lhc. Ajjyw, para.ja. p.8.
G.A..O.R., Thirtccnth Sess..FouComm.. 747th Meeting,30thSepteinber, ,958.
para. 27,p.25.
G.A. Rcrolution i243(X111)30th Oetober. iyjti. ir1G.AO.H.,ThirleenthSess.,
Sup. 30. in (A/)oyo), p. 30.
Vide l'art Apara. i supra.
C.A.R~~ol~lio~z1246(XIII).30th Octaber, ,958. inU.N. Doc.r\/qogo.p. 31.290 SOUTH WEST .4FRICA

1959
71. In its reply toan invitation by the Good OfficesCommittee to
renew discussions, Respondent referred to the unfortunate develop-
ments at the 13th Session of the General Assembly which, in Re-
spondents' view, showed that the essential elements of conciliation

and goodwill on the part of the majority of members in the General
Assembly, were absent. Respondent was nevertheless still prepared
to act in accordance with the spirit which animated the resolution
establishing the Good Offices Committee, and to collaborate with
the Committee on the basis of the terms of reference contained
in that resolution. It was difficult to see, however, what useful pur-
pose could be served by renewing, under the Committee's new and

more restricted terms of reference, the discussions which had been
initiated in the previous year in such completely different circum-
stances. '
When, however, the Good Offices Committee replied that its
terms of reference were "not essentially different from those under
the 1957 resolution", Respondent indicated that, while it did not

agree with this interpretation, it would meet with the Committee. '
72. The ensuing discussions showed, however, that the Good
OfficesCommittee felt itself bound to consider only proposals which
would involve acceptance by Respondent of accountability to the
United Nations in respect of the Territory as a wholea ,nd it pro-

posed a formula in the following terms:
"It is agreedthat further talks might be concentrated onthe nego-
tiation of some formofagreementto whichthe United Nations must
be a party for the supervision of the administration of South West
Africain a manner which would not imposegreater responsibilities
on the Union Govemment or impair the rights enjoyed by it under
the Mandate".

Respondent could not accept this formula because of its convic-
tion that it would be impossible to devise, within the framework
of accountability to the United Nations, a procedure which would

not impose on Respondent obligations greater than those which
had existed under the League.
In an effort to meet the view of the Good Offices Committee,
Respondent in turn proposed the following formula as a basis for
further discussion:

"It is agreed that further talks with the Union Government
should be concentrated on negotiation with the United Nations,
through its Good OfficesCommittee, of some form of settlement

VideU.N. Doc.A/4224. AnnexII,inG..4..O.R., FourlrcnlhScAnnexer(Agenda
itemIn8its lettof 19thJune. 1959.
a U.N. Doc. A14224. Annex III, p5.
Ibid. ,nnex IV. p.5.
' Ibid., paraIO.p.2. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 291
regarding South West Africa, which would not impose greater (or
more onerous) responsibilities on the Union Government or impair
any of the rights conferred upon it by the Mandate in 1920,it being
understood that such discussions will be without prejudice to the
juridical positiontakenup by the Union in the past". 1

The Good Offices Committee felt that this proposa1 did not im-
prove the position, and reported to the General Assembly that
"it has not succeeded in finding a basis for an agreement under
its terms of reference". (Italics added).
Thus negotiations were once more frustrated by the restrictive
terms of reference of the negotiating agency.

73. When the report of the Good Offices Committee was dis-
cussed at the 14th Session of the General Assembly, the South
Afncan representative expressed his Government's "real regret"
that it had not been possible to find a basis for agreement, and
informed the Fourth Committee that:

(a) The South African delegatiori would at the next session, as it
had done at the 14th Session, again participate in the discussion
of the report of the Committee on South West Africa.
(b) The South African Government would make auailable 10 the
United A'ntionsblue books (officialreports) and other reports issued
by the South West AfricaAdministration, Hansards (Parliamentary
Proceedings),of both the South African Parliament and the Legis-
lative Assembly of South West Africa; and other documents con-
ceming the administration of the Territory which are required,to
be laid before the South African Parliament and the Legislative
Assembly.
(c) The South African Government remained ready to enter into
discussions with an appropriate United Nations ad hoc body that
might be appointed after prior consultation with the South African
Govemment and which would have a full opportunity to approacii
its task constructively, providing for fullest discussion of al1possz-
bilities.

In giving these undertakings the South African representative
emphasised that Respondent could only carry them out within a
framework of CO-operation and he expressed the hope that further
developments would not force Respondent to re-assess itsattitude. '
74. The atmosphere was unfortunately marred by subsequent
developments including the following:

(a) Resolution 1360 (XIV) (sponsored. inter alia. by Ethiopia)
was adopted which, although apparently designed to create machin-
' Ibid.. pararq,p. 3.
Ibid.,para.16, p.4.
' U.N. Doc. A/<zz~.
' C.A., O.R. FourfrrnihSers.. Fourlh Comni.. 924th hleeting. 26th October. 1959.
para. z.p.221.
lbid.
".A. Rerolufion i36o(XIV). 17th Novc:mber, 1959, inG.A..O.H.. FourfeenIhSesS..
Sup. No. iG(A14354). pp. 28-29.292 SOUTH WEST AFRICA

ery for negotiation, contained paragraphs condemnatory of Re-
spondent. On the "negotiation" aspect Respondent was invited to

"enter into negotiations with the United Nations through the Com-
mittec on South West Africa, which is authorized under its terms
of reference to continue negotiations with the Union, or through any
other cominittee which the General Assembly may appoint, with a
view ta placing the Mandated Territory under the International
Trusteeship System" ;

and requested ta
"formulate for the consideration of the General Assemblv. at its
fifteenth session, proposals which will enable the ~andated Terri-
tory of South West Africa to be administered in accordance with
the principles and purposes of the Mandate, the supervisory lunc-
tions being exercised by the United Nations according to the terms
and intent of the Charter". '

The South African representative pointed out to the Committee
that Respondent could hardly be expected to enter into negotiations

when the resolution also contained paragraphs censnring the South
African Government. Furthermore the terms of referencelaid down
for the neg.tiations implied only trusteeship. He continued,
"the Cominittee \vas ivçll :i\i.art.of the Cnioii's attitude towards a
poiiil>lt trusteesliip agrceiiieiit : evçii the Court's opinion, adoytcd

hv tlic Gcncral .Assemhlv.indicatrd~ ~ ~ the Cnion \\.as not oblicrd
t; enter into a truste&ip agreement. There was therefore,-no
question of the Uiiion considering a tmsteeship agreement. As
operative paragraph 3 envisaged supervision according ta the terms
and principles of the Charter, it also aimed at supervision by the
Trusteeship Council. Moreover, the terms of reference of the United
Nations bodv which was to be entrusted with those neeotiations
>eeniédmurl;too restrictive. more restrictive in fact than tce prekent
terins ol rrference of the Good OnIcesCommittee. The South African
delegation would therefore.. .vote against the draft resolution as a
whole". a

(b) Together with others, both Applicants aiso sponsored a
resolution designed ta encourage Alember States to institute legal
action against Respondent. This resolution, inter alia, drew

"theallentionof Member States to the conclusions of the speciai
report of the Committee on South West Africa covering the legal
action open to Member States to refer any dispute with the Union
of South Africa conceming the interpretation or application of the
Mandate for South West Africa to the International Court of Tustice
for adjudication in accordance with Article 7 of the Mandace read
in conlunction with Article 37 oi the Statute of the Court".

' Ibid. parus.2 and 3,p. 29.
para..46, p. ?54.urkozfh Sers.. FourfCowzrn..~1st Ueeting. 29thOctober, 1959.
' C.A. Xcsolulion136r(XlV). ~7th Sovernber. 1959. in U.S. Dm. A14354. p. 29. PRELIMINARY OBJECTIONS OF SOUTH AFRlCA 293

The South African delegation had pointed out in vain that this
resolution was not consonant with a conciliatory spirit necessary
for successful negotiation. ' Other delegations also feared that this
resolution would have a deleterious effect and a forma1 proposal
was made to postpone consideration thereof until the 15th Session;
but after an appeal tothe sponsors by the representative of Liberia,

the proposal to postpone consideration was withdrawn.
75. The General Assemblp also adopted the annual resolution
(sponsored, inter alia, by Liberia) calling for the Territory to be
placed under United Nations Trusteeship. J

76. With regard to the extracts fromthe Report ofthe Committee
on South West Africa referred to at page 79 ofApplicants' Memo~ials,
it is desired merely to record that. without prejudice to its juridical
position, Respondent did at the 14th Session of the General Assern-

bly deal with certain allegations and information contained in the
Report. This was done to draw attention to the mis-statements
and the unjustified conclusions in the Report, as well as to show
that Respondent's refusal to supply information was due to its
inability to accept United Kations accountability and not to a
desire to hide the facts.
The Applicants allege at page YIof the Memouialsthat the South

African Representative "made no real attempt to deal with the
practice of apartheid. Nor did the Union dispute the existence of
an interlocking series of legislation which the Comrnittee deemed
oppressive". Respondent did nc~tintend or attempt to deal fully
with the various allegations and conclusions in the Report of the
Committee on South West Africa, inasmuch as Respondent did

not recognisesupervisory authority as vested in the Gnited Nations,
and was not accounting to the United Nations in that sense.
Respondent will not deal here with the allegations in the said
Report.

1960

77. When the Comrnittee on South West Africa invited Respon-
dent to negotiate with it in ternis of Nesolution 1360 (XIV), ' Re-
spondent on 29th July, 1960, replied:

"The Union Govemment have repeatedlyexpressedtheir desire
to find a solution which would be acceptableto al1the parties con-
cerned. To this end the Union Govemmenthave. over, a period of
years, made concrete proposals and expressedtheir willingnessto
examine others. The Union Govemment continue to desire that

' Ibid.O.znd FMeeting,30thsOctober,C1959,para.i,p.e259., para.50,p. 254.
a G.A. Rcsnlulion 1,3(XIV). 17thNoveml>er, 1959, inUN. Doc.A14354. p. 28.
' C.A.. O.H.,Fourirenlh Scsr.,FourlhCan,m.. R83rd. grqth, 9~5th. gr6th and
918th Meetings.
' Vide PartA. para.i rupro.
' Vide para.74(a)supro.=94 SOUTH WEST AFRICA

offers to the Fourth Committee last year, recorded once more the
Union's readiness to enter into discussions with an appropriate
United Nations ad hoc body that may be appointed after prior
consultation with the Union Govemment, and with terms of refer-
ence which would allow the fullest discussion and exploration ofal1
$ossibilities.
This offer did not, however, find a positive response and the
Assembly instead adopted resolution 1360 (XIV) which laid down
terms of reference for negotiation with the Union which were most
restrictive. The Union's representative pointed out. before the
adoption 01 ilircsolution. tt;at the teriiis ;f rcferçn~x\verc lar more
restrictivtlinn tliose of the Good OfficesCommittee and he voted
trrriinst tht adootion of the rcsolution. \'ou will tlicrtfore understand
tKat the UnioR Govemment could not see any possibility of fmit-
ful results flowing from negotiations which required the Union to
place 'South West Africa under the International Trusteeship
System'-terms of reference which prescribed the end result in
advance.
The Union Government still believe that negotiations on the basis
propbsed would not lead to any ositive results.
The Union Govemment woul%,however, wish to reiterate their
Nationssadthocbody that may be appointed after prior consultationd
with the Union Govemment and whichwould have a fullopportunity
to approach their task constructively, providing for fullest discus-
sion and exoloration of al1 nossibil1tie.s-on the understandine of
course, that'this is without bre.udice to the Union's c~nsistentl~
held stand on the iudicial .,uridica-. aspect of theissue".' (Italics
added.)

78. Respondent had intended reiterating the above offer at the
15th Session of the General Assembly which was to meet some
weeks later. A request by Respondent for early consideration ofthe
South West Africa question was, however, not acceded to by the
Fourth Committee and by the time it did came up for discussion,
Applicants had instituted these proceedings.
In the light of this event the South African representative in-
formed the Fourth Committee that, since the Committee's discus-
sion on South West Africa was likely to traverse the same field as
that covered by the proceedings instituted by Applicants, the
matter was, in Respondent's view, szrbjudiceand should, therefore,
not be discussed by the Committee. The South African representa-

tive argued his contention at some length, painting out that dis-
cussion, andadoption of resolutions, might have a prejudicial effect
on the judicial proceedings and could be constmed as an attempt
to usurp the functions of the Court. The Committee rejected Res-
pondent's proposal for an adjournment of the debate pending the
conclusion of the judicial proceedings-the Applicants voting
against the proposa1 for adjoumment.
'G.A., O.R.. FiflccnScss.Sup. No. 1z(A/4464)Annex Il C,p. 58. PRELlMlNhRY OBJECTIONS OF SOUTH AFRICA
295
The South African representative then informed the Committee
that his delegation could not he a party to discussion of a matter
which was the subject of a judicial action pending in the Court,

since in doing so it would itself be violating the sub indice nile. '
In view of these events it uras not possible for Respondent to
deal further with its offer to explore "al1 possibilities"
79. At page 82 of the Memorials, Applicants give an account of
certain events at the "Second Conference of Independent African
States" at Addis Ababa in June, 1960.The relevance of these events

to the proceedings before the Court is not apparent, Save that the
Libenan Representative's reference to the determination of his
Government "on behalf of al1 African States to pursue further
action to get this territory placed under the Trusteeship provisions
of the Charter", appears to confirm that in the so-cailed negotiations
with Respondent over the years, there had been but one objective
on the part of Applicants, namely, IJnited Nations Trusteeship for
South West Africa.

80. Applicants also refer at page 84oftheir Memorialsto General
Assembly Resolution 1565 (XV). This Resolution was adopted
after the filing with the Court of the Applications in these proceed-
ings. Respondent therefore does not inteud dealing with the con-
tents thereof, Save to state its strongest objection to the reliance

which Applicants, in referring to this Resolution. apparently place
on the conclusion of the majority in the General Assembly that
"the dispute which has arisen between Ethiopia, Liberia and other
Member States on the one hand, and the Union of South Africa on
the other, relating to the interpretation and application of the
Mandate has not been and cannot be settled by negotiation".

81. Respondent refrains froin dealing with the extracts from
the Report of the Committee on South West .Africa as quoted at
pages 83 and 84 of the Memorials. '

82. Respondent's submissionswith regard to the facts dealt with
in this Chapter are stated in Chapters III to VI below, in each case
to the extent relevant to the Objection considered in such Chapter.

There remains;however, to be dealt with the followingstatements
by the Applicants in a summary at the end of Chapter II of their
Memorials:

G.A..O.R.. FiflcenfhScsFourfhComm.. ro4gthMeeting,14th Novernber,1960.
paras.39-66,pp. 296-99.
' Of 18th December. rg60.in C.A., O.R..Fifleenlh Sesi., Sup. r6(Ai4684).
PP. 31-32.
* Videalso para. 8 of Chap. VI infra.
' VidePart A. para. r supra.296 SOUTH WEST AFRlCh

(a) "Upon tk dissolutiott of the League of Nations tk Union did
not concealils desireto annex the Territory".

In paragraphs I to IO of Part A above, Respondent indicated
that the Mandate for South West Africa gave effect to a compromise
arrangement which involved, inter alia, that C Mandates were, in

their practical effect, not far removed from annexation. Respondent
has further shown in this Chapter that it considered closer associ-
ation between South Africa and the Territory to be a natural
development and that it never made a secret of its conviction that
the interests of the inhabitants would best be served thereby. At
the time of establishment of the United Nations and even before
the dissolution of the League, Respondent clearly announced its
view that the hfandate should be terminated and the Territory
incorporated in the Union. Respondent's proposa1 to that effect,

supported by the wishes of the inhabitants, was however rejected
by the Gnited Nations in 1946,

(b) "pstead, shortlyafter the United Nations refusal to permit in-
corporatlon O/ the Territory. the Ultion contended that the United
:Vationshad no rights of supervision, or otkr pwcrs, with respect
10the Territory".'

Respondent's contention was in conformity with a general under-
standing to that effect amongst Members of the League and of the

United Nations, and given expression to beforeand after dissolution
of the League.

(c) "The Opinion of the Court being unsatisfactory ta the Union,
the latterdenouncedthe Opinion as beingin error,and proclaimedits
intention no&10 comply therezwith".'

Respondent did not "denounce" the Opinion, nor did it "pro-
claim" an "intention not to comply" therewith.
Respondent advanced,reasons why it could not accept certain of

the conclusions in the Opinion, the most important reason being
that certain vital information was not before the Court when the
Opinion was given. Although Respondent could not accept the
Opinion in loto. it nevertheless made concrete proposals and con-
sidered counter-proposais in an endeavour to find an acceptable
arrangement.

(d) "Tkre followedyearsof patient, tlwieghunauailling(sic),efforls
on tk part O/ the Gennal Assembly to obfain implementatia of
the Opinion, by means of negotintionand appeal". 1

' Applicantz' AJrmorialp. 46.
As \vil1I>efurther dealt winChap. III. paras. 3z(c) and (d) anintro. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 297

and,
"Having concluded after fourteen years of frzritless efforts to obtain
complianceon the part of the Union with the Mandate,that its dispute
with the Union has not beenand cannotbesettledy negotiation...'

As regards the implication contained in the last-mentionedstate-
ment, to the effect that there has not been compliance with the
Mandate on the part of Respondent, reference is made to sub-
paragraph (e) below.
The allegations conceming "unavailing efforts" and "fmitless
efforts". and the conclusion that there is a. dispute which cannot
be settled by negotiation, are dealt with in Chapters V and VI
below.

(e)"The CornmitLee'srepeatedfindings of Union uiolalions of Lhe
Mandafe and recommendationsthereonhue beenas nnauailing as the
Cornmittee's effortso negoliate", and other dlegations al page 86
concerningallegedviolations of the Mandate.
Respondent denies that its administration of the Territory has
not been in conformity with the provisions of the Mandate. For the
reasons stated in paragraph I of Part .4 above, Respondent refrains

from dealing with the substance of the Applicants' allegations in
this regard. SOUTH WEST AFRICA

CHAPTER III

FIRST OB JECTIOH

INTRODUCTORY

I. Respondent deals in this Chapter with its First Objection,
namely, that the "Mandate for German South West Africa",
upon Article 7 of which the Applicants' claim to jurisdiction is
founded, has lapsed, in the sense and to the extent that it is no
longer "a treaty or convention in force" within the meaning of
Article 37 of the Statute of the Court.
z. Applicants seek to found their claim to jurisdiction of the
Court upon Article 7 of the Mandate agreement and Article 37
of the Statute of the Court. 'They suggest that regard is also to be
had to Article 80, paragraph I, of the United Nations Charter; but
inasmuch as the latter is an interpretation clause only, to the effect
that Chapter XII of the Charter is not to be construed as altering

certain existing rights or instruments, Applicants could not seek
to base anything positive thereon.
Article 7 of the Mandate agreement, in its second paragraph,
provided as foliows:
"The Mandatory agreesthat, if any dispute whatever should anse
between the Mandatory and another Memberof the League of Na-
tions relatingto the interpretation or the applicationofthe provisions
of the Mandate, such dispute, if it cannot be settled by negotiation,
shall be subrnitted to the Permanent Court of International Justice
providedfor byArticle 14ofthe Covenantof the Leagueof Nations".
Article 37 of the Statute of the Court reads:

"Whenever a treaty or convention in force provides for 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."
Inasmuch as Article 7 of the Mandate agreement provided for
reference to the Permanent Court of International Justice, which
is no longer in existence, Article 37 of the Statute is a necessary
link in the chain of Applicants' contention that jurisdiction is now

vested in the International Court of Justice. For the purposes of
' VidlApplicants' Mcmorialr.88. PRELlhIINARY OBJECTIONS OF SOUTH AFRICA
299
Article 37 it is necessary that Applicants establish not generally,
that an obligation to submit to jurisdiction can be said to exist in
some way or another, but specifially that it exists as a provision
of a "treaty or conventionin force". And thus the basic contention
advanced by Applicants in regard to jurisdiction is, indeed, that

"The Mandate. including Article7 thereof, is in force, and is a
'treaty or convention' within the rneaning of Article 37 of the
Statute of the Court".'
Respondent submits that Applicants are unable to substantiate

this contention.
3. That the Mandate agreement came into existence, and oper-
ated during the life-time of the League of Nations, as a "treaty or
convention", can be regarded as common cause. The issue as
raised in this Objection is whether such operation continued after
the dissolution of the League.
In the 1950 Advisory Opinion the Court in effect held that, in

addition to its operation as a treaty or convention, the institution
known as the Mandate for South West Africa acquired an objective
or "reai" existence, as constituting a special status for the Territory,
and that in this objective or "real" aspect the Mandate survived
the dissolution of the League.
The correctness or othenvise of this proposition does not require
to be reviewed for the purpose of Respondent's Objection to juris-
diction-= wiii appear from reasons dealt with hereinafter. Irres-
pective of the question whether the Mandate as an institution
suMved the League in an objective or "real" sense and, if so,
with what exact content and to what exact extent, Respondent

contends that in its aspect of operating as a treaty or convention
the Mandate for South West Africa lapsed upon dissolution of
the League, and that for this reason Applicants' claim to juris-
diction must fail.
4. In developing this contention, Respondent will deal with
the matter in the following parts:

A. The contractual nature of the origin of the Mandate and of
the obligations created thereby for the Mandatory (the word
"contractual" being used in the sense of relating to international
agreement,whether bilateral "treaty" or multilateral "convention").
This part will also refer to the two broad categories into which the
obligations may be said to fall, uiz:

(i) Substantive, relating directly to the administration of the
Temtory ; and ij
(ii) Procedural, relating to supervision by League organs regard-
ing observance of the substantive obligations.

' "International slntur of South-West f~dvi~or~ Opinion: I.C.J. Rejw~ts
1950".pp. 132,154-57165-66.30° SOUTH WEST AFRICA
B. The International Person or Persons for whom the Mandate
as a treaty or convention involved rights or legal interests correl-
ative to the hlandatory's obligations. Respondent's submission will
be that the circle in this respect \vas limited to

(i) the League of Nations, regarded as an international legal
persona, or
(ii) the Illembers of the League, in their capacity as such, or
(iii)hoth (i) and (ii).

C. The effect of dissolution of the League upon the Mandatory's
procedural obligations (A (ii) supra). Respondent's submission will
be that these obligations were by their very content dependent for
their fulfüment upon the existence of the League, that on dissolu-
tion of the League they lapsed through impossibility of perfor-
mance, and that they were not replaced by, or modified into,
similar obligations to submit to supervision by the United Nations
or any other organisation.

D. The effect of dissolution of the League upon the Mandatory's
substantive obligations (A (i) supra). Respondent's submission will
be that although these obligations were not by their content
dependent for fulfilment upon the existence of the League, the
only International Person or Persons for whom the Mandate as
a treaty or convention involved rights correlative to the said
obligations, were the League of Nations and/or its hlembers in
their capacity as such; that due to dissolution of the I.eague its
rights lapsed: and that for the same reason States that had been
Members of the League, could no longer claim to possess rights or
legal interests by virtue of a treaty or convention that had rendered
such rights or legal interests dependent on membership in the

League.
E. Final observations on the effect of the conclusions arrived
at in Parts C and D upon Applicants' claim to jurisdiction. Respon-
dent's submission will be that whether or not objective or "real"
obligations survived the League, and whatever the possible nature
and scope of such obligations, the Mandate agreement is no longer
"in force" as a "treaty or convention" within the meaning of
Article 37 of the Statute.

5. By Article 22 of the Covenant of the League of Nations. the
Signatory Powers agreed that what subsequently came to be known
as the "Mandaté System" was to be applied to certain colonies and
possessions, including South West Africa.
As was indicated in Chapter II above, 1the agreement as even-
tually set forth in Article 22 was a compromise arrived at after

' PartA, paras2-10. PRELlhlINARY OBJEC'TIOSS OF SOUTH AFRICA 301
much travail at the Paris Peace Conference of 1919. The history
of the Article explains also why its provisions were in certain
respects vague and lacking in legal precision. Nevertheless the

broad trends of what was intended, as distinct from certain ques-
tions of detail, seem reasonably clear.
The Article commenced with setting out the signatories' agree-
ment that to the colonies and territories in question "there should
be applied the principle that the well-being and development of
[the inhabitants] form a sacred trust of civilization". It further
recorded their agreement that "securities for the performance of
this trust" should be embodied in the Covenant.
The second paragraph of the Article stated that "the best method
of giving practical effect to this principle" would be to "entrust"
the "tutelage" of the "peoples" concemed to suitable "advanced

nations", willing to accept it, who would "exercise" it "as Manda-
tories on behalf of the League".
The wording of the Article as a whole. as well as its historical
background, suggest strongly that these references to "trust",
"tutelage" and "Mandatory" ivere not intended to bear technical
legal meanings, by exact or close analogy to municipal law insti-
tutions of traast,lutelugeand mandataim.So, for instance. the English
word "trust", which is capable of a technical legal meaning as well
as ofa more general ordinary meanirig, depending on context, waç
rendered in the French version by the word "mission "eaning in
this context "task" or "undertaking", and thus confirming that
a non-technical connotation of "trust" was intended. The concep-

tion, also, of the "tutelage" of a backward people or community
by an "advanced nation" could at most have been intended in a
broad, metaphorical sense. It is significant that in the actual
Mandate agreements later entered into, the words "trust" and
"tutelage" did not appear at ali. Even in the case of the words
"hlandatory" and "Mandate", which were retained in the Mandate
agreements themselves, the analogy, if any, with a private law
rnandate<mwas probably intended to béof the broadest and most
general nature only. The more detailed and technical aspects of the
private law institution could hardly have been known to the Peace
Conference as a whole-as distinct possibly from certain of its

members-and cannot therefore fairly be presumed to have been
intended to be incorporated in its covenants It was probably by
reason of considerations such as these tbat the Majority of the
Court, in the 1950Advisory Opinion expressed the view that it was
"not possibleto draw any conclusionsby analogy from the notions
of mandate in national law or from any other legal conception of
that law". '

It seems, then, that what was said in the opening paragraphs of
Article 22 conceming a "sacred trust" and "tutelage", must be

' "lnicrnotionslnlurO/Sot'lh-WesAlricn. AdviroOpiniow: I.C.J.Reporl~
19.50"p. rjz.302 SOUTH WEST AFRICA

regarded as being descriptive of the idealistic or humanitarian
objectives involved in the Mandate System, and that the reference
to "Mandatones on behalf of the League" is to be understood as
affording a broad indication of the method whereby those objec-
tives would be sought to be attained. It is, therefore, to the more
detailed provision in Article 22 for "secunties for the performance
of this trust" that regard must be had in order to determine the
juridical content of the Mandate System as envisaged by the

signatories to the Covenant.
6. On analysis the following "securities" are found embodied
in the further provisions of Article 22:

(a) Although the Mandatories were to have authority and control
in respect of the temtories concerned, l in other words (at any rate
in the case of B and C Mandates) title or power of government and
administration, this would Vary according to circumstances and
would be subject to conditions. '
(b) The said conditions would be directed towards a two:fold

purpose, namely,
(i) to provide certain "safeguards in the interests of the indi-
genous population", and

(ii) to secure certain interests or benefits for Members of the
League and their nationals.
(c) More particularly, the conditions mentioned in regard to B
and C Mandates as directed towards safeguarding the interests of
the indigenous population were:

"... conditions which will guarantee freedom of conscience and
religion,subject only to the maintenanceof public order and morals.
the prohibition of abuses such as the slave trade. the ams traffic
and the liquor traffic, and the prevention of the establishment of
fortifications or military and naval bases and of military training
of the natives for other than policepurposes and the defenceof the
temto ry..."5

(d) Specifically directed towards the interests or benefit of
Members of the League and their nationals, would be conditions
to "secure equal opportunities for the trade and commerce of
other Members of the League". 6 This so-cded "open door" clause
would not, however, apply in regard to C Mandates. ' It is further
evident that certain of the conditions mentioned in (c) above as
directed towards indigenous interests, could in addition serve the

'Art 22(8).
lbid.. (5) an(6).
Ibid.,(3)and (8).
Ibid.. (6)and (5).
Vbid.. (5) read wit(6).
'Ibid., (5).
Vide limitative wordatthe end ofArt.22(6). PRELIMINARY OBJECTIONS OF SOUTH AFRICA 3O3

interests of League Members (e.g. the restrictions upon traffic in
arms and ammunition and upon fortification and armament).
(e) The Mandatory was to be under an obligation to render to

the Council of the League "an annual report in reference to the
territory committed to its charge". ' A Permanent Mandates
Commission would receive and examine the reports and advise
the Council "on al1 matters relating to the observance of the
mandates".
(f) The "degree of authority, control, or administration" to be
exercised by the Mandatory was to be "explicitly defined" in each
case-by agreement betureen Members of the League or by the

Council.
7. It will be observed that Article 22 did not itself purport to
put the Mandate System into operation. It set forth the agreed
idealistic objectives of the System, agreed methods whereby it
would be put into operation and agreed features which would be
incorporated therein. The provisions of Article 22 clearly envisaged
that concrete steps would have to be taken for the complete con-
stitution of the System, namely, towards entrusting the "tutelage"
of the inhabitants of particular territories to particular "advanced

nations", 'constituting those "nations" as "Mandatories on behalf
of the League", ' and explicitly defining the degree of authority,
control or administration to be exercised by them; 3 and those
provisions prescribed conditions which were in this process to be
imposed as obligations upon the Mandatories, substantively in the
interests of the Mandated peoples and Members of the League.
and $rocedurally with a view to international supervision over the
"observance of the mandates," i.e. over the exercise of the substan-
tive powers and compliance with the substantive obligations. '
In other words, Article 22 was an agreementbetweenMembers
of theLeagueas such, regarding a Mandate System to beconstituted
in pursuance thereof. The System itself, however, would begin to
operate only upon the agreementof the respectiveMandatories as

such (not necessarily Members of the League) to undertakesfiecific
Mandates in respect of particular terntories, and to accefitsfiecifi-
cally definedrights and obligation in connection therewith.
8. The concrete steps envisaged by Article 22 were duly taken,
in the follouing order:
(a) The Principal Allied and Associated Powers (in whose favour
Germany was to renounce her overseas possessions by Articles 118

' Ibid., (9).
a Ibid., (8).
nid.,(2).
Vbid.
Vide Art. zz(5) a(6)and para.6 supro.
' Art.22(7)and (9). SOUTH WEST AFRICA
304
and 119 of the Treaty) allocated the various territories to different
Mandatories, and, inter alia, decided on May 7th. 19x9, that the
Mandate for South West Africa should be held hy Respondent.'

(h) Draft Mandate instruments were considered by the Principal
Allied and Associated Powers and, after agreement ulth the desig-
nated Mandatories, submitted to the Council of the League. In
the case of South West Africa the agreement hetween the Principal
Powers and the Mandatory appears from the second and third
~ararra~hs of the ~reambie of the instrument as finallv approved.
. ., . . ..
(c) The Coiincil of the Leagile conrirnied the llandatcs. ' ttier~.t)!.
cunstitutine the desicnuted hlandatoricj as "\lan<l;iturivs iiiI~clialf
of the ~eaiue".
(d) The Council further, in pursuance of Article 22 (8). defined
the terms of the Mandates in the manner set out in the instruments

of Mandate t This was generally in accordance with the drafts
submitted, subject to very minor alterations, if any. And such
alterations must also have received the assent of the Principal
Powers and the Mandatories; for the final instruments record the
defined terms as heing in accordance with those "proposed" by
the Principal Powers and "agreed" to and "undertaken" hy the
Mandatories. '

9. The provisions of the Mandate for German South West
Africa. as defined by the Council on 17th December, 1920, and
agreed to by the Mandatory, were typical of C Mandates. They can.
for convenience, he grouped as follows:
(a) Mandatory's title: The preamble set out that there was
conferred and confirmed, in accordance with Article 22 of the

Covenant "a Mandate ...toadministerthe territory aforementioned",
which the Mandatory had undertaken "to exercise ...on behalf
of the League". Article 2provided that "the Mandatory shall have
full power of administration and legislation over the Territory
...as an integral portion of the Union of South Africa, and may
apply the laws of the Union to the territory, subject to such local
modifications as circumstances may require".

(h) Mandatory's substantive obligations: These were set out in
Articles 2 to 5. Article 2 imposed the general obligation to "pro-
mote to the utmost the material and moral weU-being and the
social progress of the inhabitants". Articles 3, 4 and 5 iinposed

'Ibid. Chapter IIl'artA,para.7 supra.
Annex B infra and L. 01N.. O.J..1921.p.89.Vide alsoI'reambles toother
C Mandates in L. of N.. 0.11921.pp. 84-94.
' End ofPrearnbleof Slandate for South West Afandaalso of other CJlandates,
footnote3supra.
Vide end of Preamble.
Wright. op.cil.p. riq.
Vide Preambles of C Mandates.
Paras.2and 3 of Preamble. PRELlMlNARY OBJECTIONS OF SOUTH AFRICA 3O5

conditions as contemplated in the portion of Article 22 (5)of the
Covenant cited in paragraph 6 (c)above-those in Article 3 relating
to "the prohibition of abuses such as the slave trade, the arms
traffic and the liquor traffic"; those in Article 4, to the prevention
of fortification and military training of natives other than for police
and defence purposes; and those in Article 5, to freedom of con-
science and religion. Article 5 \vas worded with reference, not only
to freedom of conscience and worship on the part of the inhabitants,
but also to allowing al1 missionaries who were "nationals of any
State Memher of the League of Nations" to enter into, travel and
reside in the Territory for the purpose of prosecuting their calling.
While ail the obligations imposed by Articles 2 to 5 were "safe-
guards ... in the interests of the indigenou'spopulation", certain
of the provisions (e.g. those of Article 5 relating to missionaries)
appear to have been intended to secure and serve in addition the
interests of Members of the League and their nationals.

(c) Mandatory's Procedural Obligations: Article 6 imposed the
obligation to render to the Councilof the League, toits satisfaction.
an annual report "containing full information with regard to the
territory, and indicating the measures taken to carry out the obli-
gations assumed under Articles z, 3. 4 and 5".
(d) Amendment of Mandate Prouisions: Article 7 provided that
the consent of the Council of the League was required for any
modification of the terms of the Mandate.

(e)Compulsory ]z~risdiction for Adjudication of Disputes: Ar-
ticle 7 also set out the Mandatory's agreement to the submission
to the Permanent Court of InternationalJusticeofdisputes between
itself and another Member of the League of Nations, insofar as
they related to the interpretation or application of the provisions
of the Mandate and could not be settled by negotiation. It will
be ohserved that in Article 22 itself there was no such provision
for compulsory jurisdiction. In the Mandate instruments the rele-
vant clause providing for such jurisdiction in each case commences
with the words: "The Mandatory agrees ..."

IO. That the Mandate for German South West Africa operated,
during the lifetime of the League, as an international treatyor con-
vention,cannot admit of doubt. Indeed, from what Applicants state
at page 88 of their Memorials, this appears to he common cause. '
Respondent wishes to stress hoth the contractual origin of the
Mandate agreement and the fact that it gave rise to contractual
international rights and obligations.

(a)ContractualOrigin :
As was observed above (paragraph 8). the Mandate agreements
received the assent or approval of the Principal Alliedand Associated30~ SOUTH WEST AFRICA

Powers. the respective Mandatories and the Councilof the League.
The Principal Powers acted in pursuance of the power of disposa1
conferred upon them by Articles 118 and 119 of the Treaty of
Versailles. And the Councilof the League acted in terms of authori-
sation conferred upon it by Article 22 (8) of the Covenant, which
was a convention between al1League Members.

(b) ContractualConsequences:
It was by agreement to the tenns of the respective Mandate
instruments that the Mandatories obtained the rights and accepted
the obligations set forth therein. These rights and obligations were
international in that they were valid against, and owed to, other

International Persons (as will be further discussed in paras. 13 to
17 below); and they were contractual through being contained in
the provisions of the Mandate agreements, to which they owed
their legal force.
II. Insofar as the 1950 Advisory Opinion stressed the objective
or "real" aspect of the Mandate institution. as involving specia'l

status for the Territory,' it seems clear that such "real" aspect
was additional to the contractual and did not displace it. In other
words al1 the rights and obligations provided for in the Mandate
agreement were contractual-in the sense of existing between
subjects of International Law by reason of an operative treaty or
convention. But some only of those rights and obligations in
addition acquired a "dispositive" or "real" aspect. This is rendered
clear particularly by Sir Arnold McNair at page 156 of the Opinion
where, after citing or stating the effect of al1the provisions of the

Mandate for South West Africa, he said:
"In addition to 1k persona1 rights and obligations referred to
above, it also created certain'real' rights andobligations".(Italics
added. ')
The learned Judge proceeded to indicate that the latter were
"certain rights of possession and government ..." and "certain

obligations binding every State that is responsible for the control
of territory. . ." (Italics added.)
On this approach to the matter, there could be controversy as to
which rights and obligations fell into the "real" category as pertain-
ing to status. and which did not: there can, however, be no contro-
versy about thefact that al1 rights and obligations contained in
the provisions of the Mandate agreement were contractual.

12. The obligations were imposed by Articles 2 to 6 of the
Mandate agreement and, as was noted above, fell into the following
two categories, namely :
' Ibid.para. 3.
'"I~~ter~tntiaal slalus of South-West AfAdvisoryOpinia: I.C.J.Repwir
1950".p. 156.
aIbid.
Vide paras. g(b)an(c)supra. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 3O7

(a)Substantive, relating directly to the administration of the
Territory (Articles 2 to 5); and
(b)Procedural, relating to supervision by the Council of the
League in respect of observance by the Mandatory of the substan-
tive obligations (Article6).
The substantive obligations can again be subdivided into two
groups, asfollows:

(i)Al1the obligations involved benefit for the inhabitants of the
area ;
(ii) Some of them, however, at least potentially involved benefit
aiso for Members of the League and their nationais.
It would be somewhat dificult to draw a.hard and fast line as
far as group (ii) is concemed. Clearly falling within its ambit would
b~ the provision in Article 5 for freedom of entry into and travel
and residence in the Territory to be allowed to "al1 missionaries,
nationais of any State Member of the League of Nations"; the
restriction in Article 4 upon military training of the natives and
fortification of .the Territory; and possibly also the provision in
Article 3 for the control of traffic in arms and ammunition.
But even this list is not necessarily exhaustive. Certain of the
other obligations, primarily intended for the benefit of the inhabit-
ants, might well under particular circumstances of application or
breach affect the interests of a Member State or its nationals: thus,

for instance, widespread liquor traffic in the Territory might
sometimes affect the nationals or dependents of a League Member
in a neighbouring territory.

13.The question of the International Person or Persons that
acquired contractuai rights or legai interests, correlative to the
Mandatory's aforesaid contractual obligations, can best be answered
with reference to the following potential holders of rights or legal
interests:

(a) The Principal Allied and Associated Powers;
(b) The League of Nations, viewed asan entity distinct fromits
Members and endowed with international legal capacity; and
(c) The Members of the League of Nations.
The situation concerning the inhabitants of the Territory as
possible holders of rights or legal interests is dealt with in ParE
below.

14.ThePrinci9ai Allied and AssociatedPowers:

Although the group of States known at the time as the Principal
Allied and Associated Powers participated, under that name, in the 308 SOUTH WEST AFRICA
establishment of the Mandate System, in the manner and to the
extent indicated above, lthe terms of the respective Mandate agree-

ments did not, either by themselves or as read against the back-
ground of Article 22 of the Covenant, provide for any function to
be fulfilled by the Principal Powers as such. In other words the
agreements did not confer rights or impose obligations .upon the
Principal Powers as a body orgroup, or as individual States because
of their membership of that body or group. Their role as Principal
Powers was apparently intended to be transitional only, uiz. to

esercise their po\ver of disposal over the ex-enemy territories in
such a way as to get the Mandate System established in respect of
the territories. Their CO-operation \vas particularly necessary with
a view to the establishment of the respective Mandatories' title to
the territories. Having done what was necessary from their side to
achieve that purpose, their function as Principal Powers in this
respect was fulfilled; in the operation of the System itself the role
contemplated for them would be that of individual hlandatories,

or of Members of the League, or of both.

15. The League of Nations:
ln determining whether the League was a party to and derived

contractual rights fromthe Mandate agreements, the first question
of importance is whether the League was to be regarded as a legal
pevsona and a subject of International Law.
There is a strong body of juridical opinion in favour of an af-
firmative answer to this question.
As Schwarzenberger States:

"In thecase of compreltensiueinternationalinstitutions, suchas the
Leagueof Nations or the United Nations, 'at present the supreme
type of international organisation', it is reasonableto assume tht
such an institution is intended to exercise andenloy 'functionsand
rights which can oitly be explained on the basis of the possessia of a
largemeasureofinternational personalityand the capacity to operate
upon an international plane'". (Italics added.)

Sch\i.arzcril~t~rgcr's(liii>tatii>n;.are froni the Ri.parirlior~ iijr rn-
jnrtrs srlderzd IVI/Iresrrorce01 1/16Unile./ .Yolions. rldvisory Opl~rlon
of April ~rth, 1949.
This Opinion dealt witli the 1946 "Convention on the Privileges
and Immunities of the United Nations", the terms of which created

riahts and duties between each of the sianatLries and the United
~itions Organisation.

! . ' Para. 8.
Art.4 of the Covenant provides that they will abeopermanent members of
the Council of the League.
Schwarzenberger,G. Inler~otio>znlLaw (3rd ed.), Vo1,p. 138.
' "Repnroiionforinjuries ruflercd inthe srrvoflhr United Notions, Aduirory
Opinion: I.C.J. Reports 1949". 179. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 3O9
The Court held:

"It is dificult to see how such a convention could operate except
upon the international plane and as between parties possessing
international personality.
In the opinion of the Court, the Organization was intended to
exercise and enjoy, and is in fact exercising and enjo ing, functions
and rights which can only be explained on the basis o tthe possession
of a large measure of international pers~naljtj, and the capn'ty
to operate upon an international plane. It is at present the supreme
type of international organization, and it could not carry out the
intentions of its founders if it was devoid of international person-
ality. It must be acknowledged that its Members, by entrusting
certain functions to it, with the attendant duties and responsibili-
ties, have clothed it with the competence required to enable those
functions to be effectively discharged.
Accordingly, the Court has come to the concluiion ,that the
Organization is an international person. That is not the same thing
as saying that it is a State, which it certainly is not, or that its
legal personality and rights and duties are the same as those of a
State.Still lessisit the same tliing as sayin that it is 'asuperState,'
whatever that expression may mean. It f ies not even imply that
al1 its rights and duties must be upon the international plane. any
more than al1 the rights and duties of a State must be upon that
plane. What it does mean is that it is a subject of international law
and capable of possessing international rights and duties. and tliat
it' has capacity to maintain its rights by bringing international
claims". 1

That the League of Nations was an international legal persona.
was accepted in the "Communications/rom theSwiss Federal Council
concerningthe difilornaticimmunities to be accordedto the staff of the
League of Nations and of the International LabourOfice", of Sep-
tember 18th. 1926. %
Article I thereof read:

"The Swiss Federal Goveniment recognises that the League of
Nations, which possesses international personality and legal capa-
city, cannot. in principle, according to the mles of international
law, be sued before the SwissCourts without its express consent".
On 20th September, 1926, the Council took note of this arrange-
ment. $

Quincy Wright stated:
"There remains the possibility that the League is itself a perso-
nality capable of contracting obligations and acquiring rights, apart
from its members. This is the most generally accepted theory ..."

' L.i0)N. O[.. 192h.P. I4ZZ.
a Ibid.pp. 1407,1422...
' Wright, op.cit.p.366. Vide the various authorities quoted in faop(a)e on
that page. Vide also StarkeJ. G. An lnlrodr<clion Io InlrrnntioLaw (3rd ed.).
p. 57; Verdross.A. Die Vcr/asrung der Volkcrrcchlsgcmeinscholl (~926). 5';
Williams. J. F. "The statu?, of the League of Nations in International Law",
I.L.A., Rep., XXXIV (rgz6). p. 688-8g.31° SOUTH WEST AFRICA

Oppenheim stated:
"The questionof the legalnature of the League waç a matter of
considerable controversy. The predominant opjnion was that the
League, while being a juristicperson sui generrs,was a subject of
International Law and an International Person side by side with
the severat States".'

If,in consonance with the above authonties, the view is accepted
that the League was an international legal persona, it must follow
that the League itself was a party to the Mandate agreements and
drrived contractual rights therefrom correlative to the obligations
impsed upon the respective Mandatones. Article 22 (2) of the
Covenant rendered clear that the respective Mandatories would
fulfil their functions "as Mandatories on behalf of the League".
Consequently. on the premise of "the League" being a legal persona,
the Council's rolein entering into the Mandate agreements with the
respective Mandatones, in pursuance of Article 22 (8) of the Cove-

nant, would be of the nature of an agency performed on behalf of
the League, whereby the latter would be constituted a party to the
Mandate agreements. In fact, each of the Mandate instruments
records in its preamble the Mandatory's undertaking to exercise its
Mandate "on behalf of the League of Nations"; and it was such a
Mandate that was in each case confirmedby the Council as "the
said Mandate", and the terms of which were definedby the Council
in pursuance of Article 22 (8) of the Covenant.
Briefly, then, the situation is that if the League was a legal
persona, it would through the agency of its Council have been a
party to the Mandate agreements, and the obligations imposed
upon the respective Mandatories by those agreements would. as

contractual obligations, be owed to the League.
16. The Members of the League:

(a) Ifthe League of Nations should for any reason be regarded
not as a legal persona but as a voluntary association of States
having no legal personality distinct from that of its Members, then
the expression "Mandatories on behalf of the League" would from
a strictly legal point of'view have to be regarded as inexact. It
would then have to be constmed as meaning Mandatory on behalf
of the States associated in the League as Members thereof. And the
Council's action in entenng into the Mandate agreements with the
respective Mandatories in pursuance of Article 22 (8) of the Cove-
nant, would have to be seen as an agency performed on behalf of

the Members of the League, in their capacity as such, authonsed
by tbem through their agreement to Article 22 (8) of the Covenant.
(b) On the basis, however, of the League of Nations being
regarded as a legal persona, on whose behalf the Council acted in

quoted in footootz.InUrnaliaal Loui (ed.),Vol. 1, p. 3Vi& the authoritis PRELlhllNARY OBJECTIONS OF SOUTH AFRICA
311
entering into the Mandate agreements, the position of Members
of the League with regard to those agreements becomes more
difficult to define. That the League Members did not participate
directly in the conclusion of those agreements,is clear. They did
not through their Govemments sign the Mandate agreements, or
observe the ordinary processes of ratification in regard thereto, or

in any other manner signify their assent as individual parties to
the agreements. Were they then, on the basis under discussion,
to be regarded as having acquired any rights or legal interests
under, and in pursuance of, the Mandate agreements? Various
possibilities fail to be distinguished in this regard:
(i) Insofar as the League itself, as a legalrsona, was a party
to whom the Mandatones' obligations were owed, it could take no
decision or action without participation therein by its Members,
in accordance with the provisions of the Covenant and niles of
procedure made thereunder. In other words, Membersof the League

could participate in the proceedings of the League and thereby
influence or determine the League's decisions and actions as a
party to the Mandate agreements. In this sense, then, and to this
extent, Members could be said to have had a certain right or locus
standi in regard to League proceedings conceming Mandates. But
this would be a right of League Members in their relationship inter
se and with the League: it would not be a right or legal interest
derived from the Mandate agreements and exercisable as against
the Mandatories.
(ii) Reference was made in paragraph 12 above to the fact that
certain of the substantive obligations imposed upon the Mandatory

for South West Africa involved potential benefit for Members of
the League and their nationais as well asfor the inhabitants of the
Territory; it is possible that they were intended to achieve such
a result. This applied in the case of al1Mandates, and included in
the A and B Mandates the important "open door" obligation to
allow "equal opportuniti~s for the trade and commerce of other
Members of the League". In the case of obligations of this nature
there may wellhave been a contemplation of rights or legal interests
on thepart of League Membersvis-à-vis the respective Mandatories.
If League Members are to be said to have acquired contractual
rightsin this regard, the basis would have had to be agency by the
Council of the League. In other words, Article 22 (8) of the Cove-
nant would have to be viewed as authorising the Council to act note

only on behaif of the League (in respect of al1terms of the prospec-
tive Mandate agreements), but aiso on behalf of Members of the
League to the extent of securing for them such rights as may
fairly be said to have been contemplated for Memben in Article 22.
On this basis, then, rights correlative to the obligations in question
would have been acquired by League Members through the agency
of the Council of the League, and League Members would be $70
tanto CO-partiesto the Mandate agreements. 312 SOUTH WEST AFRICA

Failing this basis, however, the provisions imposing the obliga-
tions under discussion could possibly be regarded as stipulations
by the League Council in favour of League Members, available
for acceptance and utilization by them if and when they wished-
in which sense then it could be said that Members of the League.
though not parties to the agreements, had legal interests in respect
thereof.
(iii) Insofars the substantive obligations discussed in paragraph
12 ahove could operate for the benefit of the inhabitants only,
there would be no potential reasons, corresponding to those dis-
cussed in (ii) ahove, for regarding the Members of the League either
as CO-partieswith rights under the Mandate agreements, or as the
holders of legal interests stipulated for their benefit.

17. The situation as regards the International Person or Persons
who acquired contractiial rights or legal interests from the Mandate
agreements, can therefore in Respondent's submission be som-
marised as follows:
(a) Onthebasis thattheLeagzreof Nations was not a legalpersona.
Al1 the contractual obligations imposed upon the Mandatory
would have heen owed to the Membersof the Leagzle,in their capa-
cily assuch,who would consequently have held the rights correlative
to the obligations.

(b) On the basis that the~ea~zteof Nations was a legal persona.
(i)All the contractual obligations imposed upon the Mandatory
would have been owed to the Leaqueof Nations, who would have
held the rights correlative thereto.
(ii)TheMembers of the League, in their capacity as such, could
have had contractual rights or legalinterests vis-à-visthe Mandatory
only insofar as the latter's obligations were intended to operate for
the benefitof Members and their nationals as well as of the inhabi-
tants of the Territory. Insofar as the obligations were imposed for
the benefit of the inhabitants only, the Members would have had
no right or legal interest vis-à-vis the Mandatory: they would merely
have had a right inter se and vis-à-vis the League to participate in
League proceedings regarding Mandates.
In Part D-helow Respondent will further develop the argument
that insofar as Members of the League acquired rights or legal
interests from the Mandate agreements, they did so only in their

. cremain Members,ers of the League and for such time as they might

18. Although, as submitted in paragraph 5 ahove, the authors
of the Covenant did not intend any close or technical analogy with PRELIMISARY OBJECTIONS OF SOUTH AFRlCA 3I.3

municipal law institutions of trust, tutelage and mandutum. the
Mandate System did provide certain features of broad resemblance
to those institutions. The reseinblance to tmst and tutelage lay
in the vesting in the Mandatories of title and powers of adminis-
tration, subject to conditions which involved obligations to utilize

the powers for the benefit and progn:ss of under-developed peoples.
The resemblance to mandatum was supplied by the notion that
the Mandatories would, in the exercise of these civiliiing functions,
act "as Mandatories on behalf of the League", and more specifically
by the provision requiring them to report to the Council of the
League relative to observance of their obligations in that regard.

19. In the history of the government and development of back-
ward countries and their inhabitants, this element of League super-
vision provided for in the Mandate System was an innovation
generally recognised to be of great importance.

The application of the "sacred tmst" and "tutelage" conceptions
in this sphere was nothing new. Following on views expressed by
earlier writers, l the colonial policies of western powers were, as
from the 18th century, described by various statesmen as civilizing
missions involving duties of tmsteeship and guardianship towards
the colonies and their inhabitants.

TheSe declarations were generally recognised to he of a moral
character and as involving no consequences in International Law.
P. T. Furukaki expressed the position thus:

"Heretofore certain powerful states of supenor civilization have
attributed to themselves a civilizing mission among hackward
peoples. France, for example, admits and practices the theory of
the colonization-tutelage.But this isa purely moralduty. voluntarily
accepted by the colonizing state as a politic means of justifying
in the name of ùvilization the conquest and the administration of
colonial territories difficult to justify from the democratic point of
view. This duty has been envisaged as the consequence of the
suzerainty over the colony. It allowssovereignty in its full integrity
to remain in the colonizinggovernment whichhas to render account
to no one for its action". a

Towards the end of the 19th century, during the period of the
so-called "scramble for Africa" on the part of colonial powers,
various international conventions were entered into between them
in relation to, inter alia, the welfare of native peoples. The General
Act of the Berlin African Conference of 1885 provided in Article 9
thereof that the slave trade was "forbidden" by "the principles

' Vide Chowdhuri. R. N. Infernalional Mandntcs and Tvurtctship Syslc(1955).
pp. 16-r8.
' Ibid.,pp. 18-22.Vide also Toussaint. O. E. Th' Trurf~cship Syrlemof lhc
United Nations (1956)p.p. 5-8; Halop.cil.pp. 97-rm: Bentwich. NThe Mondales
Syrlem (1930). p4.
Furukaki, P. T. "Nature juridique des mandats internationaux de la Socidtd
des Nations", Bib. Un. (July-December. igz6j. p.385, as cited by Wright.
op. cil.pp. 536-37.
21314 SOUTH WEST AFRICA
of international law as recognised by the signatory Powers"; and
in regard to the area known as the Conventional Basin of the Congo

the powers undertook towards each other not only to apply the
"open door" principle but also
"to watch over the preservation of the native tribes and to care
for the improvement of the conditions of their mord and matenal
weiibeing, and to hel in suppressing slavery. and especiaily the
slave trade". (Article i.) '

Later international conferences, mainly at Berlin and Brussels,
in the years 1890, 1899, 1900, 1906, 1907 and 1912. resulted in the

recognition as between the signatory powers of principles anddes
relating to abolition of slavery and the slave tradeandto regulation
of the importation of arms and trade spirits into Africa. a
Although it is in a sense correct to say that by these conventions
the welfare of backward peoples was rendered "a matter of inter-
national concern", 3 there were as yet no sanctions to the conven-
tions. As Bentwich puts it :

"The signatory Powers had no defined means of intervening if
things were done contrary to the convention; and, in fact, they did
not interfere". '

According to commentators this weakness led to evasion and
inadequate observance of the conventions. ' Moreover it gave rise
to uncertainty as to the exact manner in which certain aspects of
the conventions were to be viewed-more particularly whether, in
providing for native welfare in covenants as between civilized
States, the conventions were to be regarded as giving rise to legal
obligations in International Law or whether they resorted in the

sphere of morality only.
The Mandate System. whilst also containing provisions in accord-
ance with the "sacred trust" and "tutelage" ideals, sought to
overcome this weakness and uncertainty by the introduction, in
accordance with the mandatum conception, of international accoun-
tability in the form of League supervision. And thus it ww that
Wright commented:

"The distinctivefeatureof the system isundoubtedly the League's
supervision. The p~ciples of tmsteeship and tutelage have often
been avowed before and sometimes practised but only as self-
limitations".*

'General Act of the Berlin African Conference. Art. 6. (Referred to in Hdl.
Op. cJ.,p. 104,)
* VideHall, op.cil.pp. oz-04; Toussaint.op. cil.pp.8-9; Chowdhuri, op. cil..
pp.zo-zz; Bentwicb. op.cil.p. 5.
' Toussaint.op.cil.p.9.
' VideHall,oop.cil.p. 104-05,
Wright. op. cil.p. 64. PRELIMINARY OBJECTIONS OF SOUTH AFRICA
3I5
And commentators generdy are agreed that it was through
the provision for League supervision that the Mandatones' obliga-
tions in respect of the welfareof the mandated communities becarne
"juristicaily sanctioned. '

zo. Although commentators frequently employ the broad de-
scriptive terms "League supervision" and "supervisory functions
of the League", such phraseology did not occur in the relevant
provisions of Article zz of the Covenant or of the Mandate agree-
ments. These provisions were as foiiows:

(a) Article22 (7) of theCovenant:"In every caseof mandate,the
Mandatory shall render to the Council an annual report in reference
to the temtory cornmitted to its charge".
(b) Article22 (9)of the Covenant: "A permanent Commission
shallbe constituted to receive and examine the annual reports of
the Mandatories and to advise the Council on ail rnatters relating
to the observanceof the mandates".
(c),Article 6 of the Mandate for South West Africa. (and corres-
ponding provisionsin other Mandate instruments). "TheMandatory
shallmake to the Councilof the Leagueof Nations an annuai report
to the satisfaction of the Council,containingfull information with
regard to the territory, and iiidicating the measures taken to carry
out the obligationsassumed under Articlesz, 3, 4 and 5".

(d) These specific provisions are further to be read in the light of
(i) the provision in Article zz (z) that the "tutelage" should be
exercised by advanced nations "as Mandatones on behaif of
the League", and
(ii) the Mandatones' undertakings (as set out in the preamble of
the Mandate instruments) to exercise their Mandates "on behalf

of the League of Nations".
The "supervisory functions of the League" spoken of by commen-
tators was a concept in essence denved from the obligatiio mn-,
posed upon the Mandatories by the above provisions, to reemt
with reference to the Temtory and to the measures taken to cary
out the substantive obligations. Thereports would (by implication)
regularly he considered by the Permanent Mandates Commission
and the Council of the League with a view to ensuring observance
of the Mandates, if necessary by Council resolutions directed to
that end.
Moreover the Council, without express provision to that effect
in the Covenant or the Mandateinstmments. accepted that the

consideration of petitions regarding aileged grievances about
observance of the Mandates by the Mandatories would form part
of its functions as the supervisory organ. And it laid down in that
regard the mies of procedure alreadv referred to above. a Briefly

' Vide e.gFunkaki. as eited by Wright.op.cil.p. 537; BenMch, op. Of.
P.*.VidcChap. II..Part A. par14rupro.316 SOUTH WEST AFRICA

these involved that petitions from inhabitants were to be forwarded
through the respective Mandatories, who could then at the same
time fumish their comments, and that petitions £romother sources
were to be addressed to the Chairman of the Permanent Mandates
Commission, who was to decide whether they merited attention
and, if so, to fonvard them tothe Mandatory concerned for comment.
Thus the regular consideration of reports and of petitions and
the Mandatories' comments thereon, with a view to securing ob-
servance of the Mandates, constituted League supervision correla-
tive to the Mandatories' obligations to report and account to the

Council. Without the imposition of this obligation on the Manda-
tories, there would be no justification for an inference that the
League Council was intended to exercise a "supervisory function",
or for speaking of any obligation to submit to such supervision.
So, by contrast, Article 23 (b) of the Covenant of the League
imposed upon League Members the obligation "to secure the just
treatment of the native inhabitants of territories under their
control". But in the absence of any additional provisions requiring
the Members affected by Article 23 (b) to act in this respect as
Mandatories on behalf of the League, and to render reports to the
League indicating the measures taken to comply with the obligation
undertaken in that sub-article, nobody has ever suggested that the
League was given a supervisory function with reference to that
obligation or that the Members in question were obliged to submit
to any such supervision.
It is evident, therefore, that the essence ofeaguesupewision or

the supewisory functions of the League was the Mandatories' obli-
gation to report and accountto the Council of the League in respect
of compliance with the substantive obligations pertaining to ad-
ministration of the temtories and protection and development of
the inhabitants. The further obligation relative to supervision, uiz.
to fonvard petitions, was purely subsidiary and dependent on the
fact that the Council was the supervisory organ-which fact in tum
depended on the obligation to report and account.
21. The sourceand origin of this obligation to report and account
was contractual,the Mandatories becoming hound thereto by their

agreement to the Mandate instmments. lThe other party or parties
to the agreements would have been,
(a) the League of Nations, viewed as a legal persona, or
(b) the States associated in the League as Members thereof-if
the League should not be viewed as a legal persona.
Even on the basis of the League being viewed as a legal persona,
the obligation to report and account might be regarded as being
intended, inter alia, for the benefit of Membersof the League, insofar
as their substantive rights or legal interests might be affected

' Vi& particularly para. iosupra.
* Vide paras. 13-supra. PRELlMlNARY OBJECTIONS OF SOUTH AFRICA
3I7
thereby. A third possibility is therefore that Members, in addition
to the League, could have had a right or legal interest correlative
to rhe Mandatories' obligation to report and account-on the same
principles as discussed in paragraph 16 (b) (ii) supra relative to the

substantive obligations there dealt with.
Thus the other party or parties to the Mandate agreements may
briefly be said to have been the League and/or its Members.
22. By nature and content,too, the obligation and the right cor-
relative thereto were of a purely contractualor "personal"nature,
as distinct from "real" nghts and obligations. The obligation was
not in any way constitutive of the status of the Territory or of the
Mandatory's title thereto, as might be said of other aspects of the

Mandate System. It was not part and parcel of the substantive
obligations involved in the "sacred trust" and "tutelage", but an
obligation to report and account in respect of the observance of
those substantive obligations. Although considered ofgreat practical
importance, as has been indicated above, ' its severability from the
substantive obligations involved in the "trust" and "tutelage" is
manifest-as is also illustrated by the examples of earlier inter-
national conventions mentioned in paragraph 19 supra.
In the Advisory Opinion of 1950 there seemed to be general
agreement (in Respondent's respectful submission, correctly,) that
the obligation to report and account did not fa11within the category

of "real" rights and obligations relating to the status of the Terri-
tory. Sir Arnold McNair expressly cllrssifiedit as "personal", and
did not include it amongst "real" rights and obligations involved
in status. aThe same distinction seems to have been intended in the
Majonty Opinion at page 133. where a line was drawn between
obligations "directly related tothe administration of the Temtory",
representing the "very essence of the sacred trust of civilization",
and on the other hand tbose "related to the machinery for imple-
mentation", "closely linked to the supervision and control of the
League", and corresponding to "the securities forthe performance
of this tmst". From page 136it appears that by this latter class was
meant particularly the obligation to report and account to the

Council, there described by the Court as "an important part of the
Mandates System". Similarly, Judge Read distinguished the "legal
duties which wereconcemed with .. . supervision and enforcement"
as a special class, and rendered it clear that they were severable
from the rights and duties pertaining to status.
23. By its content the obligation required the Mandatories to
report and account to a specific supeniisory body, constituted and
functioning under the provisions of a particular international con-

Vide paraig srrpro.
"lntcrnatimrol slntus of South-West Africo, Aduisovy Opinion: I.C.J. Re~olfs
1950Ibid.. pp. 164-66.318 SOUTH WEST AFRICA

vention. It was not an obligation to submit generally to "inter-
national supervision" or to supervision by the "international com-
manity" or "the Family of Nations" or "the civilized nations of
the world" or the like. It was an obligation to report and account
to a specific organ of a specific organisation of cedain of the nations
of the world, viz. the Council of the League of Nations.
The implications of this feature are of major importance. The

League was constituted by a Covenant. the provisions of which
were known to the Mandatones, andto which al Mandatories were,
initially, signatories. The constitution of the Council andthe manner
in which it was to function were laid dom in the Covenant. As has
been noted above, 1the provisions of the Covenant in that regard
required, interdia, unanimity, a general mle, for Council decisions
(Article s), and an invitation to any Member of the League not
represented on the Council to be represented at any meeting during
the consideration of matters specially affecting the interests of that
Member (Article 4). The Council would in regard to Mandatesbe
assisted and advised by a permanent Commission (Article 22 (9)). It
was to supervision through machinery governed, inter alia, hy these

provisions of the Covenant, and to no other, that the Mandatories
consented to submit.
The practical importance of the fact that the obligation related
to specific supervisory machinery, is iiiustrated by certain state-
ments made by delegates at the Paris Peace Conference. It will be
recalled that on 30th January, 1919, when the compromise ar-
rangement regarding the Mandate System was arrived at. the South
African Prime Minister, General Louis Botha, stated that:

"Personally he felt very strongly about the question of German
South-West Africa. He thought that it differed entirely from any
prepared to Say that he was a supporter of the document handedhe
in that morning,becausehe kltewthat,if theid- fruclified,theLeague
of Nationswould consistmostly of the same9eoplewhowerepresent
therethat day, whounderstoodthe position and whowould not make
it impossiblefor any mandatoryto gouernthecountry.That was why
he said he wouldaccept it". '(Italics added.)

To this explanation by General Botha, added significance is lent
by earlier. statements of the British Prime Minister, Mr. Lloyd
George. and President Wilson of the United States of America,
in the Council of Ten on 28th January, 1919, as follows:

"MR.LLOYD GEORGE said that he agreedwith M.Clemenceauthat
if the League of Nations were made an executive for purposes of
governing, and charged with functions which it would he unable to
perform, it would hedestroyed from the heginning. But he had not
so interpreted the mandatory principle when he had accepted it.

' Yi& Chap.II. PartA. para.12supvn.
*Ibid., par6. PRELIMINARY OBJECTION SF SOUTH AFRICA 3I9
PRESIDENW T ILSON said he too had not so interpreted it.

MR.LLOYD GEORGE c,ontinuing, said that he regarded the system
merely as a general trnsteeship upon definedconditions. Only when
those conditions were scandalously abused would the League of
Nations have the nght to interfere and to caUon the mandatory
for an explanation. For instance, should a mandatory aUow fou1
liquor to swamp the territories entnisted to it, the League of
Nations would have the right to insist on a remedy of the abuse". 1
This contemplation of a conservative approach to the possibility

of League interference with Mandatory government. becarne a reali-
ty upon the establishment of the League. On 5th August, 1920, the
Council of the League unanimously adopted a report by M. Hymans,
which included the following passage:

"The Annual Report stipulated for in Article 7 should certainly
include a statement as to the whole moral and material situation
of the peoples under the Mandate. It is clear, therefore. that the
Councilalsoshouldexaminethe questionofthewholeadministration.
In this matter the Council wiU obvimrsLyhave lo display extrem
prudence, :O thattheexcrciseof its rightsof catrol shouldnotprovoke
any lustrfiablecomplai&s,and thusinneusethedifüulties of thetask
undertakenby theMandatoryPower". a(Italics added.)
The Permanent Mandates Commission was constituted with a

view speciaiiy to securing an impartial and non-political approach
to the exercise of the supervisory functions. Reference has been
made above to the independence and the individual ment of the
members of the Commission. and to their expressed endeavour to
exercise their authority

"les as judges from whom critical pronouncementsare expected.
than as collaborators who are resolved to devote their expenence
and their energiesto a joint endeavour". a
The dual function of supervision and co-operation was again
stressed in later reports, ' and observed in practice.
The Council of the League seldom took any action in regard to

Mandates supervision Save on the basis of the Commission's advice,
and usually accepted it when given; resolutions were tactfully
worded as suggestions or invitations to Mandatones; and due to
the considerable representation of hlandatory Powers on the Council,
it was in general likely to be sympathetic to the Mandatones' point
of view. 'Thus the agreed supervisory rnachinery was in fact very
carefully checked and balanced so as to render unlikely any in-

juno--, biassed or unfair interference with Mandatory government.
' For. Rd. U.S.:The Paris Puce Cmrfcrcnc~.rgq, Vol. III, pp. 769
a L. ofN.. CouncilMin.. VIII. p. 187.
L.O/ N., O.J., 1921, pp. irzq-zVidc alsoChap. II. Part A. para.
' P.M.C., Min..VIII. p.zoo and Wright. op.cil.pp. r96-97.
' Wright,op. cil.pp. 199-zoo and Hallop.cil.p. 209.
' Wright.op. cil.p. 128.
' Ibid.. pp. 87-89.320 SOUTH WEST AFRlCA

24. In paragraphs 21 to 23 above emphasis has been laid on:
(a) the contractualorigin of the obligation to report and account,
being agreement between the respective Mandatories andthe League
of Nations andior its Members;
(b) the purely contractadalor "personal" nature of the obligation;

and
(c) itssfiecificcontentas relating to partica~larand careiully deuised
supervisorymachinery, with important praclical implicatzo~zstending
towards consideratetreatment of the Mandatories in the exercise of
the supervisory functions.
It seems self-evident that during the lifetime of the League no

Mandatory could have been required to submit to supervision by
any other international organisation as regards performance of its
functions under the Mandate. If, for example, a group of Nations
which did not join the League had formed an organisation of their
own, with objectives similar to those of the League and with organs
capable of exercising a supervisory function in regard to the govern-
ment of Mandated territories, it could surely not have been contend-
ed that the Mandatories. having agreed to submit to "international
supervision" by League organs, must for that reason be regarded
as obliged to submit to "international supervision" by some organ
of the parallel organisation. Such a contention would seek to
attributeto the Mandatories an obligation to which they had never
agreed. Sirnilarly it could not have been contended that the Manda-
tories would, without fresh consent on their part, be obliged to
submit to "international supervision" by some other international
organisation in fact established and having for its members largely

the same States as the League of Nations-such as. for instance,
the International Labour Organisation. Again such a contention
wouldseek to attribute to the Mandatories an obligation substantial-
ly different from that agreed to by them in the Mandate instruments.
Even within the League of Nations organisation, an alteration
in the supervisory machinery provided for in the Covenant could
not be imposed upon the Mandatories without their consent-e.g.
an alteration transfernng the supervision from the Council to the
Assembly, or providing that the Council could in matters of Man-
date supervision arrive at valid decisions by a simple majority
or by a two-thirds vote. For again such an alteration would seek
to impose upon the Mandatories an obligation of a content different
from that agreed to by them in the Mandate instruments. Article 26
of the Covenant did provide for amendments to the Covenant,
through ratification by the Members whose representatives corn-
posed the Council and a majority of the Members whose represent-
atives composed the Assembly: but it proceeded to provide that
no such amendment would bind a Member signifying dissent there-

from, although the dissentient would then cease to be a Member
of the League. At worst, therefore, a Mandatory refusing to agree PRELIMINARY OBJECTIONS OF SOUTH AFRICA 32 I
to an aiteration in supervisory machinery could lose its member-
ship in the League, but the aiteration could not be rendered binding

upon it as a Mandatory without its consent-given either expressly,
or tacitly through acquiescence without dissent in a Covenant
amendment in terms of Article 26.
25. Regard has been had above to the resolution adopted by
the Assembly ofthe League of Nations on 18th April, 1946,whereby
the League was dissolved with effect as from the next day, Savefor
the purpose of the liquidation of its affairs. '

As a result of this resolution the League of Nations and ail its
organs ceased to exist, and it accordingly became impossible for
any Mandatory to comply with the oblig3tion that had been im-
posed upon it by the Mandate agreements to report and account
to the Council of the League, or with the subsidiary obligation to
fonvard petitions to it from inhabitants of the Territory. Respon-
dent contends that in the result the said obligations lapsed. As
was stated by Judge Read in his Separate Opinion,. 1950:

"It was.no longer possible forthe Union to send reports to a
non-existent Council,or to be accountable to, or supervisedby, a
non-existent Permanent MandatesCommission". '

26. Applicants, however. in their Mernorials in effect contend
that the obligations "continue" in force in a modified form, viz.
as obligations to report and account and fonvard petitions to the
General Assembly of the United Nations, which must for the pur-
poses of the said obligations be regarded as the new supervisory
authonty. aApplicants rest their case in this regard entirely on the
Majority Advisory Opinion of 1950 and ask for re-affirmation
thereof. 4
Respondent contends respectfully that the general considerations

which normally operate in favour of affirmation of a previous
advisory opinion, are in this case outweighed by certain speciai
considerations to the contrary. The first and foremost of these is
that vital factuai information was not placed before the Court for
the purposes of its Advisory Opinion in 1950. The information in
question casts clear light on the real intent involved in the final
resolution of the Assembly of the League of Nations regarding
Mandates, dated 18th Apnl, 1946, and also on the corresponding
general intent and understanding on the part of the Members of

the United Nations at the time of its formation and during the early
years of its existence. Knowledge on the Court's part of the facts
in question would, in Respondent's submission, almost certainly

' Vide Chap. II, Part A. para. 32 supra.
' "Inlarnaiionnl slatO/South-West Atrica, Advirory Opinion: I.C.J. Reports
rg5o". p.r66.
a Vide Applicants' submission Nz.(p.197 ofthe itlrmori~lr) rwithpp. 52,
53'9Vide Chap. IV of the Mrmovials.3z2 SOUTH WEST AFRICA

have led to a conclusion contrary tothat arrived at in the Majority
Opinion. The information and its significance will be dealt with
below. Respondent must also point out, with respect. that there
were in any event two Minority Opinions on this question. In the
critical comment of writers on International Law-which may also
have been based on fuller information regarding the relevant facts

than the Court had at its disposal in 1950-the weight of opinion
appears to favour the reasoning and the conclusions arrived at
in this regard in the Minority Opinions. In al1the circumstances a
de nouo and thorough consideration of the whole question seems
essential.

27. It will be recalled that the United Nations Charter \vas
drafted at San Francisco during the period 25th April to 25th June,
1945, and came into force on 24th October, 1945-i.e. some six
months before the League of Nations was dissolved. As was indi-
cated in Chapter II above, the United Nations was a new inter-
national organisation which had for its Members some, but not all,
of the Members of the League of:Nations at that time, plus some

States that were not then, and a large number that never had been,
Members of the League.' Although it in many respects adopted
principles and objectives identical or sirnilar to those of the League
of Nations, it was not asuccessor in law to the League; indeed two
of its major founder Members were known to be strongly averse to
succession in law. 9 After the Charter and the new organisation
had commenced to function, and upon dissolution of the League,

certain League assets were taken over by the United Nations and
certain League activities were "assumed and continued by it;
but this was effected by special agreements and arrangements
pertaining to those assets and activities, and again in language
which intentionally avoided any impression of succession in law.
In providing for the establishment of a Trusteeship System which
would. in a broad sense, correspond to the Mandate System of the

League of Nations, the United Nations Charter created supervisory
machinery which differed very materially from that which had
operated under the Covenant in respect of Mandates. In the
Trusteeship System the supervision of first instance would not be
by a commission of independent experts, but by a Trusteeship
Council consisting of governmental representatives of Member
States. ' And the ultimate supervisory authority would not be

a Council in which Mandatory Powers exercised strong influence
and in which a unanimity mie prevailed, but either the General
Assembly of the United Nations. 6which could arrive at decisions
by a bare majority or, on important questions, by a two-thirds

' Vide Chap. II, PaA, pars. zj and24supra.
Ibid.paras28.(c). 3r-34.
Art.86 ofthe Charter.
Ibid.A.rts85.87-89 PRELIhlINARY OBJECTIONS OF SOUTH AFRICA 323

majority, ' or the Security Council in the case of trusteeship over
"strategic areas", in which event decisions could be taken by
seven affirmative votes including those of the five permanent
members out of a total of eleven. '
By the same reasoning as is set forth in paragraph 24 above, it
seems evident that no Mandatory could, by reason of its agreement
in 1920 to report and account to, ancl thus to submit to the super-
vision of, the Council of the League of Nations. now be held obliged
to report and account to, and submit to the supervision of, the

United Nations or any of its organs. The content of the latter obli-
gation would be materially diflerent, in substanceas well as in form,
from that agreed to in 1920by the Mandatories: and for this reason
alone it follows that a Mandatory could only have become bound
to such an obligation by fresh agreementand consent thereto.
28. The question, therefore, whether Respondent is obliged to
report and account to, and submit to the supervision of, the General
Assembly of the United Nations, in essence resolves itself into an

enquiry whether Respondent by any binding juristic act has
consented to such an obligation.
29. Although the enquiry as thus posed essentially concerns
Respondent's consent to an obligation as postulated, it must of
necessity also have reference to another aspect, viz. to whom such
an obligation if any, would now be owed by Respondent. (The
Majority Advisory Opinion of 1950 does not expressly refer to this
aspect of the question.) As was demonstrated above 5the obliga-

tion to report and account to the Council of the League of Nations
was, by the Mandate agreement, owed by the Mandatory to the
League and/or its Members. As from the dissolution of the League
in 1946, there was no longer such a conception as "the League and/
or its Members". The new obligation would consequently also have
to be owed to new parties.
It is theoretically possible that, in contemplation of the disso-
lution of the L'eaguein 1946, the Mandatory could have agreed
with the League, as representing its Members, or directly with the
then Members of the League, to continue to be bound to tlzem, i.e.
the then League Members, by an obligation to report and account.
and that the supervisory authority in terms of such an obligation

would he some organ of the United Nations. But such an agreement,
in order to be effective after the dissolution of the League, would
have had to bind the Mandatory to the States in question indepen-
dently of their membership of the League, in other words to those
States individually or as an ad hocgroup or as Members of the new

' Ibid.. Art. 18.
' Ibid.. Ar83.
Ibid.. Ar27 (3).
Ibid.. Arzj.
Vara. ïr readwith paras. 13-17.94 SOUTH WEST AFRlCA
organisation, the United Nations. (In this last event the obligation
would not be owed to al1States that were Members of the League at
the time of its dissolution, inasmuch as al1 of them did not join

the United Nations). '
A second theoretical possibility is that the new obligation could
be owed to the United Nations and/or its Members. To that end
would be necessary an agreement between the Mandatory and the
United Nations and/or its Members, casting upon the Mandatory
the obligation to report and account to some organ of the United
Nations.
A third possibility would be something of the nature of a.tripar-
tite agreement involving consensus as between (i) the Mandatory,

(ii) the League and/or its Members at the time of its dissolution,
and (iii) the United Nations and/or its Members. The result could be
an obligation owed by the Mandatory to one or to both of the other
groups of parties to the agreement (except for the League itself),
depending on the intent apparent from the agreement.
Any other possibilities would have to be mere variants of the
above three. And the enquiry is therefore directed towards ascer-
taining whether Respondent at any time bound itself by agree-
ment, either with the Members of the League at the time of its

dissolution (directly or via the League as representing them), or
with the United Nations and/or its Members, or with both these
groups, to an obligation as postulated. Such an agreement could
conceivably have been either part and parce1 of general multi-
partite conventions concerning the formation of the United Nations
and/or the dissolution of the League, orsfiecial as between Respon-
dent and others who could conceivably be parties thereto as
aforestated.

30. The United Nations Charter:
There has never been any suggestion that the provisions of the
Charter of the United Nations by themselves rendered Respondent
obliged to the United Nations or the other Members thereof to

report and account to, or to be subject to the supe~sion of, any
organ of the United Nations with regard to performance of its
functions under the Mandate for South West Africa. In this respect
there appears to have been general agreement in the Advisory
Opinion of 1950. The Majority Opinion particularly emphasised
tha~~~

"The Charter has conternplated and regulated only a single
systern, the International Tmsteeship System. It did not contem-
plate or regulate a CO-existing Mandates System". '
The whole of the portion of the Opinion in which this statement
occurred (answer to Question (b)) was concurred in by Judge

' Vide Chap. II. Part A. par24supra.
1950".p.r140.onolrtaturof South-WcrtAfrica,.4duirory Opinion: I.C.J. Reports PRELlMINARY OBJECTIOXS OF SOUTH AFRICA 325

McNairand Judge Read; ' andthe particular statement wasagreed
to by Judge de Visscher, * Judge Krylov and apparently also
Judges ZoriEitand Badawi Pasha (whoconcurredin the dissenting
opinion of Judge de Visscher). ' It is borne out entirely on reference
to the Charter. The provisions of the Charter make no mention of
anything pertaining to supervision in regard to Mandates. They
do make provision for supervision of administration under the
Tmsteeship System, but render it clear that this would apply only
to cases in respect of which trusteeship agreements are entered
into. Quite clearlythey impose no obligation uponany Mandatory
to enterinto a trusteeship agreement,aswas(withrespect, correctly)
held by the majonty of Judges in the Advisory Opinionin 1950.
In any event Respondent had at the San Francisco Conference
when the Charter was being drafted, rendered clear and explicit
that it did not intend to place South West Afnca under United
Nations Trusteeship.
In the circumstances it is manifest that, by agreement to the
Charter, Respondent did not agree to any United Nations super-
vision of the performance of its functions under the Mandate.
Furthemore, inasmuch as the Charter provided for supervisory
machines. only in respect of trusteeship agreements voluntanly
entered into, there would have had to be some further appropriate

arrangement, in amplification or possibly even amendment of the
Charter, if United Nations supervision was to be brought about
regardingany Mandateor Mandatesnot convertedinto Tmsteeship.
31. United Nations Resolutions of January-February, 1946,
9ertaining to assumfition of certain Leaguefunctions and establtsh-
ment of the Trusteeshi9System.
(a) These resolutions and their history, as dealt with in Chapter
II above, 'in the first place clearlydemonstrate that the United
Nations did not consideritself to be an automatic successorin law
to any League functions, and consequently that in its contempla-
tion the assumption and continuation of any League function by
it would have to be a matter of active arrangement. Indeed, in
contrast with assets, which were to be "transferred" in terms of
the mutudy adopted "commonplan". the earlieridea ofa "trans-
fer" of certain functions and activities was abandoned in favour
of one of "assumption" by United Nationsorgans of certain func-
tions and powers. @

Ibid.. p.186.andr64respectively.
* Ibid.. p.igr.
'Ibid.. p.145.
'Arts.77 and79ofthe Charter.
'Ibid.. para.7-29.rt A, par.5-16 supro.
Ibid.. para.8 (cand jz.
*Ibid., para.7-28.326 SOUTH WEST AFRlCA
(b) The secondfeature of importance isthat in Resolution No. XIV
as finally adopted by the General Assembly on 12th February,

1946, he statement of general willingness to ensure the continued
exercise of League functions was carefully limited to ficnclions of a
non-polilical character. This would obviously not include the
function of supervision regarding Mandates. The only portion of
the Resolution under which such function could possibly fall would
be Part 1, 3, C whicli read asfollows:

"C. Functions and Powers under Treaties, International Conuen-
tiopls,Agreementsand OtherInstrumentsHauinga Political Character
The GeneralAssembly will itself examine, or will submit to the
appropriate organ of the United Nations, any request from the
parties that the United Nations should assume the exercise of
functionsor powersentrusted to the League of Nations by treaties,
international conventions. agreements, and other instruments
haviiig a political character".'

In other words, for the assumption of a supervisory function
regarding Mandates, the procedure envisaged by the Resolution
would involve a "request from the parties" to the respective
Mandates, and a decision ~cceding 10 the request by the General
Assembly or other United Nations organ considered to be the ap-

propriate one.
(c) Even, however, insofar as the said Part 1, 3, C of Resolution
No. XIV supplied a method rvhereby it might be possible, at the
initiative of the parties to the Mandates themselves, to effect an
assumption of supervisory functions in respect of Mandates by some
United Nations organ, it seems unlikely that there could have been
a real contemplation that the method wouid be utilized to that end

at al]. The procedure envisagedin the Resolution would be extremely
cumbersome if applied to the case of Mandate agreements. For the
parties to such agreements would include the League of Nations
and/or al1 of its Members, some of whom did not join the United
Nations: ' consequently a "request from the parties" would not be
a matter of easy accomplishment. It is in the circumstances not
surprising to find in the history of Resolution XIV that it was not

designed for Mandates supervision at all-at any rate as far asits
proposers were concemed. For it will be recalled that the Resolution
was based on a recommendation of the United Nations Preparatory
Commission, which in tum had considered a prior report from its
Executive Committee. The relevant portion of the Executive Com-
rnittee's Report, had stated, inter alia, that

C.A.Resolufion XIV, 12th FebniarigqG,in U.N. Doc.A/b+ pp 35-36Cited
in Chap. II. PaA. para.28 (c) rupro.
a Pari1.para.3. A and Bof the Resolution.
' VideChap. II, ParA..para.24supra.
Vbid., para.28 (a) and (b). PRELlhlISARY OBJECTIONS OF SOUTH AFRICA
327
"Since the questions arisingfrom the winding up of the Mandate
spsteni are dealt with in Part III, Chapter IV. no recommendation
on this suhject is includedhere". 1

"Part III, Chapter IV" as there referred to formed part of the
history leading eventually to Kesolution No. XI, adopted at the
same session of the General Assembly, on 9th February, 1946, which

next requires consideration.
(d) The said "Part III, Chapter IV" of the Executive Committee's
Report dealt with the establishment of the Trusteeship System. It
will be recalled that a recommendation was made therein for the

establishment of a Temporary Trusteeship Committee, one of whose
functions would be to

"advise the General Assemblyon any matters that might arise
with regard to the transfer to the United Nations of any functions
and responsibilitieshitherto exercised underthe MandatesSystern".'

The recornmendation regarding establishment of the Temporary
Tnisteeship Committee iras, hoivever, rejected by the Preparatory
Commission; and no other proposa1 regarding investigation of, or
machinery for, the possible "transfer to" or "assumption by" the
United Nations "of any functions and responsibilities hitherto exer-

cised under the Mandates System", was substituted for the rejected
proposal. Resolution XI as adopted in effect merely urged expe-
dition in the submission ofpropcisedtmsteeship agreements by "the
States administering territories now held under Mandate".

(e) In adopting Resolution No. XI the Assembly knew beforehand
that such proposed agreements would not be submitted in respect
of al1Mandated territories. Express reservations had been made by
the South African representative indicating an intention on the
part of his Govemment to refrain from placing the Mandated
Territory under United Nations Trusteeship and to seek recognition
for incorporation thereof in the Union. From reservations made by

the representative of the United Kingdom, the future of the
Palestine Xandate was known to be uncertain. Furthemore, the
Pacific Islands under Japanese Mandate were occupied by the
United States and no decision had been come to as to their future.
In addition the representatives ofthe United Kingdom and France
had indicated that their Govemments' wiiiingness to place certain
Mandated territories under United Nations Trusteeship depended

upon their being able to obtain satisfactory terms. "

' Doc.PCIEXIII~~R~ V,p. rio.
* 16id.p.. 56.
a Vide Chap. II, ParA,para. 29(c) supra.
' Vide text in Chap. II, Pa* A. pa29.(g)supra.
'Chap. II. Part A, para29 (d) and(e)rupro.
* Ibid., par29 (0.328 SOUTH WEST AFRICA
(f)In al1the circumstances,the silence onthe part of the United
Nations in regard to supervision of Mandatory govemment is
significant. Its Members wereaware that time would elapse before
the coming into effect of the Tnisteeship System, and that there
could be no certainty that al1Mandated territories would end up
as Tmst temtories (sub-paragraph (e)supra). Yet no attempt was
made to arrive at a general arrangement either for interim super-
vision (after dissolution of the League) regarding Mandated terri-
tories until they should become Tmst temtories. or for any super-
vision at al1in respect of Mandated territories which might not
become Trust territories. The United Nations made elaborate
provision for the "assumption" of certain League functions and
powers,and transfer to it of Leagueassets, knowing, however,that
its Resolution (No. XIV) in this regard was neither designed for,
nor really practically suited to, supervisory functions in respect of
Mandates (sub-paragraph (c)supra). A specificproposal envisaging
investigation and recommendation conceming possible"transfer"
of "funçtions ...under the Mandate System" was rejected and
seems inescapablethat the omissionswere deliberate. It isnfehighly
unlikely that it would have been possible to achieve a gencral
arrangement applicable to al1Mandated territones in view of the
widely varying circumstances pertaining to them and the differing
intentions of the Mandatory States in regard to their future-with
the result that the matter perforcehad to be left to specialarrange-
ment, if any, to be arrived at in each particular case.
(g) ~owever that might be. the contents and history of Reso-
lutions XI and XIV clearly showthat,at the time oftheir adoption,
being shortly prior to dissolution of the League of Nations

(i) there had been no agreement between Respondent and the
United Nations and/or its Memberswhereby Respondent consented
to United Nations supervision regarding the performance of its
functions under the Mandate;
(ii) that the onlyprovisionmadeonthe part ofthe UnitedNations
whereby such agreement could possiblycome about, if at all, was
that contained in Part 1, 3, C of Resolution XIV, envisaging a
request therefor by the parties to the Mandate and agreement
thereto by a United Nations organ; and
(iii) that inviewofthe repeated reservationsmadebyRespondent,
the Members of the United Nations must have realised that the
prospects of Respondent being a party to such a special request
were remote.
32. RelevantLeagueof Nations Resolutionsduring last Sessionof
its Assembly,8-18thAgwil,1946:
The texts of the relevant Resolutions that were adopted by the
League Assemblyon 18thApril, 1946,are setout abovein ChapterII.
Part A. paragraphs 33, 34 and 35 (f). PRELIMINARY OBJECTIONS OF SOUTH AFRICA 329
(a) As will appear from the preamble of the Resolution relating
to assumption by the United Nations of League functions and
powers arising out of international agreements, lthe Assembly of
the Leaguehad "considered the United Nations General Assembly
Resolution No. XIV of the 12th Febmary, 1946, on the same
subject. aThe League Resolutionin question, as did the one follow-
ing upon it and set out in paragraph 34 of Part A of Chapter II
above, specificallyconfineditself to functions, powersand activities
of a non-politicalcharacter,and contained provisions designedto
facilitate assumption of such functions, powers and activities by
the United Nations in terms of its Resolution XIV. It remained
silent in regard to functions and powersarising out ofinternational
agreements of a political character, as dealt with in Part 1, 3, C of
the United Nations Resolution No.XIV. The inference seemsclear
that the League Assembly consideredthat that was a matter in
regard to which it had no role to play, and which was to be left to
the ad hoctreatment envisaged by Part 1, 3, C of United Nations
ResolutionXIV. In other words,the League Assemblyclearlyknew
that the United Nations wished each case involving political
functions to be dealt with separately, by way of a request by the
interested parties to the United Nations and consideration thereof
by the United Nations Assemblyor other appropriate organ: and
if it contemplated or intended transfer of such functions to the
United Nations in any other manner, it could be expected to have
said so.

(b) This wasexactlywhat had beencontemplatedin the firstdraft
proposal by ChinaconcerningMandates. aThe secondparagraph of
the draft invited the League Assemblyto express the view that
"the Leaguefunctionsas supervisoryorgan formandated temtories
should be transferredto the United Nations after dissolution ofthe
Leaguein order to avoid a period of interregnumin the supe~sion
of the Mandated temtories". The third paragraph invited it to
recommend submission of annual reports by the Mandatories to
the United Nations until the T~steeship Council should be consti-
tuted. Here, then, was a proposal involving a course of action
differingfromthat contemplatedin Part 1,s.C.ofthe UnitedNations
General Assembly ResolutionNo.XIV: instead ofseparateconsider-
ation by United Nations organs of separaterequests from parties
interested in particularMandates,the proposal envisagedtransferto
the United Nations .of supervisory functions in respect of al1
Mandatedterritmiesand submissionto the United Nationsofreports
by ail Mandatmies.
It seemsquite clear that such a proposa1couldnot have obtained
the unanimoussupport required fora League AssemblyResolution.

Vide Chap. II. Part A. para. 33 supra.
The League resolution erroneously refers to the date as 16th February. 1946.
Vi& Chap. II. Part A. par(c)ru*.
22330 SOUTH WEST AFRICA
By reason of the reservation stated by South Africa in regard to
South West Africa-being, in effect, that neither a Mandate System
nor a TrusteeshipSystem should in future apply to the Territory-
the Union could not support the original Chinese proposal. ' Nor

does it seem that that proposai could have received the support of
the United Kingdom, which, in terms of the statement by its repre-
sentative, reserved its future intentions in regard to Palestine. a
Furthermore, the reservation by the representative of Egypt ' was
to the effect that Mandates would, in his Government's view,
terminate with the dissolution of the League, and that Palestine
must in any event be considered to have outgrown the need for
being governed under Mandate or Trusteeship: thus it also seems
most unlikely that Egypt could have supported the original Chinese
proposal.

(c) In the light of the above considerations, the significanceof the
fact that the original Chinese draft was dropped after informa1
discussions and replaced by an agreed draft, which was then unani-
mously adopted, is self-evident. It willbe observed that in paragraph
3 of the Resolution, as adopted, 4 the Assembly "recognises" that
on dissolution of the League its functions with respect to Mandated
temtories wiii come to an end, and'it "notes" the existence in the
Charter of the United Nations of principles "corresponding to" those
of Article 22 of the League Covenant: but it says nothing in regard
to transfer to the United Nations of the League's functions with
respect to Mandates, or of assumption or continuation of such
functions by the United Nations. In paragraph 4 it expresses a

contemplation of "other arrangements" that may be "agreed be-
tween the United Nations and the respective mandatory powers";
and as regards the interim period, pending such agreement upon
"other arrangements", it "takes note" of the "exfiressedintentions"
of those powers to continue
"to administer [the temtories] for the well-beingand development
of the peoples concerned in accordance withthe obligations con-
tained in the respectivemandates".

In al1the circumstances, the only inference that can be drawn
is that the omissions in the adopted Resolution, as compared with
the original Chinese draft, were intentional. The proposer of that
kraft had also envisaged an interim penod, described by Dr. Liang
on the 9th April, 1946, as follows:
"in view of the fact that the Tmsteeship Council of the United
Nations has not yet been appointedand wasnot likely to be set up
for some time",

' Vide text of staternent in ChapPart,A, para. 35 (b) (ii).
Para.35 (b)(i) supra.Viseount Cecil of Chelwood as cited in Chap.Part A,
a Vide Chap. II, para. 3(e) supla.
' Vide text in Chap. Part A, para. 35 (iJsupra.
' Vide Chap. IIPartA, para. 35 (c). PRELIMINAR Y BJECTIONS OF SOUTH AFRICA 33I

and descrihed in the last paragraph of the draft itself as
"until the trusteeship councilshall have been constituted.l

It was specifically in respect of this interim period that the
proposer of the original draft wished
"to avoid a period ointmegnum in the supervisionof the Mandated
territories",

and consequently invited the Assembly
(i) to express the view "that the League functionas supervisory
organ for mandated territories should be transferred to the United
Nations",

and
(ii) to recommend "that the mandatory powers ..shail continue
to submit annual reports on theseterritoriesto theUnited Nations".

Instead, as indicated above. the adopted Resolution in respect
of such interim period confined itself to stating that the Assembly
"takesnote" of "exfiressedintentions""to administerthe territories"
in a certain manner.
That the representative of China was himself fuily aware of the
significance of the contrast, appears from what he said upon intro-
ducing the eventual agreed draft, on 12th April, 1946, ascompared
with his earlier speech on the 9th April, 1946.4 He emphasised (on
12th April) that the functions of the League in respect of Mandates
"were not transferred automatically" to the United Nations and
that the Assembly "should therefore take steps to secure the con-

tinued application of the principles of the mandates system".
But instead of moving from this foundation to the earlier proposai
"recommending that the mandatory powers should continue to
submit annual reports ...to the United Nations", he then stated
that, as the Australian representative had pointed out the previous
day, the League "would wish to be assured" as to the future of
Mandated territories. He referred to statements by representatives
of other Mandatory States, and descrihed as "gratifying" the fact
that aU had "announced their intention to administer the tern-
tories under their control in accordance with their obligations
under the mandate system until other arrangements were agreed
upon". His comment on the substance of the matter concluded
that "it was to be hoped" that "the principles of tmteeship under-
lying the mandate system" "would" be applied to the temtones
"in full" by "the future arrangements to bemade".
Clearly then, the conclusion is inescapable that there was in the
finai result a deliberate refrainment from attempting to secure a

Ibid.
Ibid., Vidsecondpara.ofdraft.
Ibid.. par35(d).
' Ibid.. par35(c). .332 SOUTH WEST AFRICA
generai transfer to the United Nations of League supervisory
functions in respect of Mandates not converted into Trusteeship,
and even fromattempting to securea recommendationthat reports
should in respect of such Mandates be rendered to the United
Nations. The intention must have been to leave to such "other
arrangements", ifany,asmaybe"agreed ineachcase,thepossibility
of the assumption by the United Nations of supervisory powersin
respect of Mandates not converted into Trusteeship-in other
words,tothe ad hoc method whichwasthe onlypossibilityprovided
for by the United Nations Generai Assemblyin Part 1,3, C of its
Resolution XIV of the 12th Febmary, 1946.

(d) The above conclusionsare further confirmedby the fact that
none of the "expressed intentions" of Mandatory States referred
to in paragraph 4 of the Resolutionincluded an intention to report
to the United Nations pending such "other arrangements": they
were confined to administration of the terntories in accordance
with obligations regarding protection and promotion of the well-
being and development of the inhabitants, and certain of the
statements strongly suggested that there would be no reporting
pending the "other arrangements". Thus the statementl of the
South Afncan representative pointedly referred to "the disappear-
ance of those organs of the League concernedwith the scpervision
of mandates, primarily the Mandates Commissionand the League
Councii",as somethingwhich would"necessanly preclude complete
compliance with the letter of the Mandate"; and immediately
before, he had stated an intention of continued administration
by the Union in accordance with the obligations of the Mandate.
for the advancement and promotion of the interests of the inhabi-
tants, "as she has done dunng the past six years whenmeetingsof
the Mandates Commissioncould not be held" (and when reports
were in fact not rendered). The Australian representative also
stated, inter aliathat
"AfterthedissolutionoftheLeagueofNationsandtheconsequent
liquidalion of th Permanent MandatesCommission, it will be%y-
possible to continue th Mandates System in its entirety".(Italics
added.)
And the United Kingdom'sintention was expressed as being

"to continueto administer these temtories in accordancewith the
gcnerai@incifilesof the existing mandates"."Italics added.)
(e) In viewof the above, the conclusionis clear that the relevant
resolutions of the Assembly of the League of Nations at its last
sessiondid not embody any agreement, either express or implied,
between Respondent and the League and/or its other Members.

Zbid.. para.35 (ii).
Zbid.. par35(b)(vi).
Ibid.. pa35(b) (i). PRELIMINARY OBJECTIONS OF SOUTH AFRICA 333

whereby Respondent was rendered obliged to report or account to,
or to submit to the supervision of, any organ of the United Nations
relative to performance of its functions under the Mandate. On the
contrary, the indications point to a mutual understanding that,
pending "other arrangements" which may be "agreed" upon
between the United Nations and Respondent. there would be no
reporting or accounting or supervisory authority. Such "other
arrangements" could potentially, as far as the League Resolution
was concerned, cover a variety of possibilities such as,

(i) recognition of a new status for the Territory.ch as was being
proposed by Respondent, or independence, or partition as in the
case of Palestine; or
(ii) a Tmsteeship Agreement; or
(iii) the "assumption" by the United Nations, in terms of Part 1,
3. C of its Assembly's Resolution XIV of 12th February, 1946, of

supervision regarding continued Mandatory administration of the
Temtory in pursuance of a request to that end.
33. Negotiationssubsequentto dissolutionof theLeague:
The evidence shows that subsequent events never led to any
agreement whereby Respondent was rendered obliged to submit
to the supervision of any United Nations organ.

"Other arrangements", as contemplated by the Resolution of
the last League Assembly, were never "agreed" upon between the
United Nations and Respondent. The United Nations was not
prepared to agree to an arrangement whereby recognition would be
given to incorporation of South West Africa in the Union, nor to
other proposals subsequently made. ' On the other hand, Respon-
dent, for the reasons explained in Chapter II above, a was not
prepared to agree to Tmsteeship for the Temtory. And there never
was, in terms of Part 1, 3, C of the United Nations General Assem-
bly's Resolution No. XIV of 12th Febmary, 1946, any "request
from the parties" or agreement thereto by any United Nations
organ as to "assumption" by the United Nations of supervisory
functions regarding continued Mandatory administration of the
Territory.
In Chapter II, Part B above, the history is dealt with of Respon-

dent's undertaking, later withdrawn, to submit statistical and
other information "in accordance with Article 73, paragraph (e),
of the Charter". Article 73 (e). where it applies as a matter of law.
does not involve an obligation to submit to "supervision". The
whole of Article 73 comprises a counterpart in amplified form of
Article 23 (b)of the League Covenant, in respect of which, as indi-
cated above in paragrapti 20, no obligation concerning supervision
applied. The same situation was intended to apply in Article 73

' Vide Chap. II, Part B. p4. 41and68 rupro.
Ibid.para. 5. SOUTH WESTAFRICA
334
of the Charter; and it is to this end that paragraph (e) thereof
emphasises that the transmission is to be "for information pur-
poses". '
In the present case there was a purely voluntary undertaking to

furnish information "in accordance with" or "on the basis of"
Article 73 (e), coupled with an express denial of liability to submit
to United Nations supervision, and with an understanding that
the information was not to be dealt with as if a trusteeship agree-
ment had, in fact, been concluded. J Inasmuch as the United
Nations neither accepted nor observed the conditions attached to
the undertaking, in which circumstances the undertaking was
withdrawn, there was never any consensusad idem or agreement,
even as regards the furnishing of information in accordance with
Article 73 (e), much less as regards Respondent being ohliged to

submit to supervision on the part of the United Nations.

34.Practice of States :

During the years immediately after establishment of the United
Nations and dissolution of the League, the practice of States
showed a general understanding that the League supervisory powers
in respect of Mandates had not been transfemed to, or assumed by,
the United Nations.
(a) The Tmsteeship Agreement for the Mandated Territory of
Nauru was entered into as late as November, 1947. ' i.e. more than
two years after the Charter had come into force: and the United

Kingdom withdrew from the administration of Palestine only as
from the 15th May, 1948. Yet no reports were in the interim period
submitted to the United Nations in respect of either temtory. And,
as far as the United Nations records show and Respondent is aware,
no State ever suggested that such reports should be submitted-
either in respect of these territories or in respect of any other
Mandated temtories during the period after dissolution of the
League and prior to "new arrangements" being "agreed" upon
in regard to them.

(b) The case of Palestine is of particular significance inasmuch as
it was investigated and reported upon by a United Nations Special
Committee, consisting of representatives of eleven Members of the
United Nations. ' In its Report, dated the 3rd September, 1947,

' Vide Hall. op. cil.. pp. 285-86. 288-89.
Vide Chap. II, Part B. para2. 6.7 and 9
Ibid.
' lbid.. parari.
''The Mandate terrninated on 15thMay,.1948.Thezllast Brititroops left frorn
Haifaon 30th June.1948. Vide Keesinf'r Contem~orery Archiucs. Vol. VI1 (1948-
1950). P. 9354.
Australia, Canada, Czechoslovakia. Guatemala. India, Iran, the Ketherlands.
Pem. Sweden, Uruguayand Yugoslavia. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 335

this Committee clearly expressed its understanding that there was,
as from the dissolution of the Leaeue. no suoervisorv authoritv in
respect of the administration of kalestine 'and no'obligatioi on
the part of the Mandatory to submit to any supervision. This
appears abundantly from the folloaing extracts from the Report,
al1 from portions unanimously agreed ta by the Committee:

"Following the Second World War, the establishment of the
thefollowingyear opened a new phase in the history of the manda-ons
tory regime. The mandatory Power, in the absence of the League
and its Permanent Mandates Commission, had no international
authority to which it might submit reportsandgenerallyaccountfor the
exercise ofits res~onsibiiities in accordance with the terms of the
Mandate ~osing'this in mind, at the final session of the League
Assembly Ihe llniled Kingdom represenlalivedeclaredthat Palestine
\i.ould be administered 'in accordanceüilh rheeeneralbrincibles' of
the existing Mandateuntil 'fresharrangements Ladbeen'reach'ed'". '
(Italics added.)

After recommending unanimously that :
"The Mandate for Palestine shall be terminated at the earliest
practicable date",

the Committee commented asfollows:

"It may be seriously questioned whether, in any event. the
Mandate would now be ~ossible of execution. The essential feature
to the mandated territories. This involved a positive element of
international res~onsibiiitv for the. mandated- territories and an
inlernaiionai acr~unlabilih>'lothe Council of the League of Nations
on the part of each mandatory for the well-being and develol>ment
of the ~eoulcj of thost territoriej The Permanent Mandates Com-
missioi; wis created for the specific purpose of assisting the Council
of the League in this function. But the League of Nations and the
Mandates Commission have been dissolved. and there is now no
meanr of disrhargingfully the fnternalimial ubiiRalionuith rega10a
manduted lerrilor) olkr lhan by placing the lerrilo7\ under the Inler-
nalionul Trusteeshib SvstemO/ the Cntted !Valions.
The ~nternation'al ?msteéship System, however. has not auto-
matically taken ouer the functions of the mandates system with
regard to mandated temtories. Territories can be placed under
tmsteeship only by means of individual trusteeship agreements
approved by a two-thirds majority of the General Assembly.
The most themandatory could now do, therefore,in the event of the
continuation of the Mandate, wouid betucarry out its administration,
in the s rrrt of the Mandate, m'thoutbeing ableto dischargeits inter-
nation$" obligations in accordancewdh the intent of the mandates
system. At the time of the termination of the Permanent Mandates
Commission in April. 1946, the mandatory Power did, in fact.
declare its intention to cany on the administration of Palestine,

'G.A.,O.R. ,econd Sess.SufiNo. i i\'ol1.(Al3Gq). pp26-27,336 SOUTH WEST AFRICA

pending a new arrangement. in accordancewith the general pnnci-
ples of the Mandate. The mandatory Power has itself now referred
the matter to the United Nations". ' (Italics added.)
(c) The above Report on Palestine contained, intn alia, also a
special note by Sir Abdur Rahman, representative of India. The

following passage occurred therein:
"Moreover. the international machinery in the form of the
Permanent Mandates Commission. whichhad been created for the
purpose of scrutinizing the actions of the mandatory Powen, and
to which they were bound to submit annual reports, has, along
with the League of Nations. ceased to exist. Thmcare no mcans by
whichthe idenational obligationsin regard to mandata con bc dis-
charguibythe UnitedNations.
The Mandate has in any case become infmctuous, and must. in
my opinion,go. Whether it couldbe supersededby an other system
within the present Charter is a different matter, andrwill be dealt
with when 1considerthe solution of the present problem".' (Italics
added.)
(d) At an earlier stage, on zznd November, 1946, the represent-
ative of New Zealand had clearly expressed a similar understanding
that, in the case of a Mandate not converted into Trusteeship, there

was no question of United Nations supervision. The statement was
made in a sub-committee of the Fourth Committee. dunng the
Second Part of the First Session of the General Assembly, in a
debate concerning a draft Trusteeship Agreement for the Territory
of Western Samoa, held under Mandate by New Zealand, and was
as foilows:
"New Zealand, although it would be most CO-operative,could
not be forced to amend its draft agreement. The result of disap-
proval of the draft agreement by the General Assembly would be
that New Zealand would carry on, as in the past. its sacred trust
tolead the people of Samoain their orderly progress towards self-
govemment. Znthis eventuality.New Zealandwouldhave 10carryon
m'thoutthefirivilcgeofthesupervisionbythe UnitcdNations whichit
dcsircd".' (Italics added.)

(e) On 2nd Apnl. 1947, dunngthe 124th meeting of the Security
Council. a similar understanding emerged from statements made by
the representative of the Union of Soviet Socialist Republics. He
was participating in discussion of a draft trusteeship agreement for
the former Japanese Mandated Islands, more particularly with
reference to a Pofish amendment to insert in the preamble the
words :

"Whereas Japan has violated the terms of the above mandate
of the League of Nations and has thus forfeited her mandate".
Zbid.. p.43.
Zbid.Vol.II'(Alj641Ad d).p. 38.
C.A., O. R.. First Scrr.. SePart. Faurlh Comm..Part II,FifthMeeting,
zzndNovember, rg46. p.28. PRELIUINARY OBJECTIONS OF SOUTH AFRICA 337

Mr. Gromyko's statement, on behalf of the Soviet Union. con-
tained the following:
"It seems to me that there is no need for such an amendment.
Thereis no continuity, either1t:galor otherwise,between themandatory
system of the League of h'ations iind the Trusteeship System laid
downin the United Nations Cliarter.There istherefore nothing which

might entitle the Security Councilto discuss this question, let alone
take any decisionson it. The mandatory system of the League of
Nations is distinct from the Trusteeship System which the United
Nations is now trying to establish". (Italics added.)

After referring to "a difference in the fundamental principles" of
the two systems, he proceeded:
"It seems to me, moreover, that in this connexion we should not
lose sight of the fact that, since there is no continuity such as would
permit and justifythediscussioiiofthisquestion bytheSecurityCouncil,
the latter cannot investigate the substance of the matter. For the

reasons which 1 have just stated, theSecurity Council is not compe-
tent to decide 10mhat extent Japan may have uiolatedthe conditions
of the mandate system and the dulies invohed in the administration
of mandated terrilories". '(Italics added.)

(f) On 19th March, 1948, dunng the qxst meeting of the Security
Council, in a debate regarding Palestine, the same understanding
emerged once again from a statement by the representative of the
United States of America, as follows:

"The United Nations does not automatically faIl heir to the
responsibilities either of the League of Nations or of the Mandatory
Power in respect of the Palestine Mandate. The record seemsto us
entirely clear that the United Nations did no1take ouerthe Leagueof
Nations Mandate qystem". a (Italics added.)

(g) The understanding which emerges from the above written
and oral statements made on behalf of a large number of States,
Members of the United Nations, in a variety of circumstances and
situations, and within a relatively short time after the establish-

ment of the United Nations and the dissolution of the League,
when the events were still reasonablv fresh in memory, in Respon-
dent's submission cffectively rr:futes -iny suggestion tacit airee-
ment asbetufcen Members of thr tin~.e- ~ ~~ons or otlier interestcd
parties to theeffect that Mandatories would be subject to United
Nations siipervision in respect of Mandates not converted into
Trusteeship.

35. The Aduisory Opinion of 1950:
(a) The Majonty of the blembers of the Court came to the
conclusion :

' S.C. ..R.. Second Year. No31. iqth Meeting, 2nd April,1947 p. 648.
Ibid.T.hirdYenr, Nos.36-51, z7tst Meeting. 19th Murch1948,p. 164.338 SOUTH WEST AFRICA

"that the General Assemblyof the United Nations is legallyqualified
to exercise the supervisory functions previously exercised b the
League of Nations with regard to the administration of the gerri-
toty, and that the Union of South Africa is under an obligation to
submit to supervision and control of the General Assembly and to
rerider annual reports to it"'

At the next page followed a consequential conclusion regarding
petitions, viz :
"In view of the result at which the Court has arrived with respect
to the exercise of the supervisory functions by the United Nations
and the obligation of the Union Government to submit to such
supervision, and having regard to the fact that the dispatch and
examination of petitions form a part of that supervision. the Court
is of theopinian that petitions are to be transmitted by that Go-
vernment to the General Assembly of the United Nations, which is
legally qualified to deal with them".

The Court's reasoning in support of its above main conclusion,
is set out at pages 136 to 137 of the Report. It commences with a
recognition of
"the fact that the siipervisory functions of the Leaguewith regard
to mandated territories not placed under the new Tmsteeship
System were neither expressly transferred to the United Nations
nor expressly assumed by that organisation".

Then follour what in the Court's words "nevertheless ... seem to
be decisive reasons" forits conclusion. These can briefly be summa-
rised as follows:

(i) The obligation to accept "international supervision" and ta
submit reports is an important part of the Mandate System-con-
sidered by the authors of the Covenant to be requiredfor eflective
performance of the sacred tmst: and similarly regarded by the
authors of the Charter relative to the International Tmsteeship
System. The "necessity for supervision" continues despite disap-
pearance of the League. The "obligationto submit to supervision"
cannot be admitted to have disappeared "merely because thesuper-
visory organ has ceased to exist", when the United Nations has
another international organperformingsimilar, though not identical,
supervisory functions.

(ii) ,"These general considerations" are confinned by Article 80 (1)
of the Charter, which cannot "effectively safeguard" the rights of
the peoples of Mandated territories without international super-
vision and a duty to render reports to a supervisory organ.
(iii) In its Resolution of 18th April, 1946, concerning Mandates,
the Assembly of the League of Nations gave expression to a "corre-

sponding uiew".In the Court's view "thisresolutionpresupposes that

1050".p.r137.onolslofur of South-WeAfrica. Aduirory Opinion:I.C.J. Reports PRELlMlNAKY OBJECTIONS OF SOUTH AFRICA 339

the szq5ervisoryfz~nctionsexercisedby the Leagzie wozild be taken owr
by the United Nations".
(iv) The General Assembly of the United Nations is rendered
competent to exercise such supervision and to receive and examine
such reports hy Article IO of the Charter.

(b) It seems evident that the Court could not have meant that
each of the above four "reasons" was to be regarded as in itself
affording full justificationfor the conclusion arrived at.
So, for instance. Reason No. (iv) is concerned merely with the
determination within the United Nations of an organ which wozdd
be competentto undertake the supervision. But this "reason" has
no relevance in the enquiry unless there should he an obligation to
submit to United Nations supervision. The General Assembly is said
to be such a competent organ hy reason of Article IO of the Charter,
which is a general provision as follows:

"The GeneralAssemblymay discussany questions or any matters
within the scope of the present Charter or relating to the powers
and functions of any organs provided for in the present Charter,
and, except as provided in Article12,may make recommendatioiis
to the Membersof the United Nations or to the Security Council
or to hoth on any such questionsor matters."
Clearly the relevance of Article 10 depends on the prior question

whether a supervisory power in respect of the Mandate for South
West Africa is a "question or matter within the scope of the .. .
Charter" or a "power" or "function" of any "organ provided for in
the . .Charter". And that, in turn, is just another way of putting
the question whether the Maridatory is under an obligation to
suhmit to United Nations supervision in respect of the adminis-
tration of South West Africa. Reason No. (iv) above, ohviously does
not purport to touch upon this question, but. on the contrary.
assumes that it has already been affirmatively answered by Reasons
Nos. (i), (ii) and (iii).

(c) Similarly Reason No. (i)does not appear to have been intended
as justification, by itself, for the conclusion that Respondent is
under an obligation to suhmit to United Nations supervision. On
analysis this Reason in the first place emphasises the importanceof
the element of international supervision in the Mandate System.
Although the phrase "necessity for superuision" is used, the word
"necessity" is clearly employed in the relativesense of necessary/or
effective performanceof the sacred trust, and not in the absolute
sense of necessity for the existence of the sacred trust or of the
Mandate. This is rendered clear, not cinlyby the wordirig of Reason
No. (i) in the Opinion, but also hy the earlier finding in the same
Opinion, that the Mandate was stiil in existence because of the fact

that the substantive obligations of the Mandatory, contained in
Articles 2 to 5 of the Mandate, and representing the "very essence
of the sacred trust", "did not depend" for their fulfilment "on the340 SOUTH WEST AFRICA
existenceof the League,"and "couldnot be broughtto an end merely
becausethis supervisory organ ceasedto exist". ' Thereby the Court
itself indicated the severahility of the Mandate or "sacred trust"
itself from supervision over the performance thereof-and it would
have been inconsistent had it later suggested that supervision was
an absolute necessity in the sense that the Mandate or "sacred tmst"
could not exist without it. In effect then, "necessity", in the context

of Reason Nb. (i), was intended to mean no more than desirability
with a ziiewto eflectiveperformance.Reason No. (i) proceeds to point
out that this desirability continues to exist despite thedisappearance
of the League. And it further, in effect, signifies that the mere fact
of dissolution of the League did not bring about a situation in which
there could not possibly be an obligation to submit to supervision,
inasmuch as there was now in existence an organ of a new inter-
national organisation, the United Nations, performing similar super-
visory functions.
On a fair interpretation Reason Nc. (i) signifiesno more than the
above. What is said in the course of Reason No. (i)is imrnediately
afterwards descnhed as "these general ronsiderations". Apparently
the 'purpose thereof was to demonstrate firstly a general likelihood
(because of the importance and desirability of international super-
vision) that the interestedparties would have intended to keep alive,

after dissolution of the League, the obligation to submit to inter-
national supervision in respect of Mandatory administration; and
secondiy,that there was an appropnate organ of a new organisation
which the parties may well have intended to be the successor to the
supervisory function. Read in this way, Reason No. (i) would not,
in itself, lead to the conclusion that Respondent is under an obli-
gation to submit to supervision by the General Assembly of the
United Nations; it would merely consist of general considerations
tending to support a possible inference of a tacit agreement between
the interested parties, whereby such an obligation was imposed upon
Respondent; in other words, it would be mere supporting material
for the reasons following upon it.
If Reason No. (i) is read as purporting to be full justification, in
itself. for the Court's conclusion in question, it would have to be
interpreted as meaning in effect that because international super-
vision is desirable, therefore the Court holds that it must exist ;and,
that because the United Nations has an organ performing super-

visory functions under a Tmteeship System, which are similar to,
though not identical with, the supe~sion previously exercised by
the League organs in respect of Mandates, therefore the Court holds
that a Mandatory previously obliged to submit to League super-
vision must now be obliged to submit, in respect of its Mandate, to
supervision of the United Nations organ (and that so, despite the
fact that the Mandatorv is not obliged and may not be willing to
' "lnternnlionnl slnlur of Soulh-Werl .4AdvisoryOpinion: I.C.J. Reports
'950".P. 133. PRELIMINARY OBJECTIONS OF SOUTK AFRICA 34'
submit to the Trusteeship System). If this were what the Court
meant, it would involve violation of the most fundamental and

elementary principles of law which the Court was under a duty to
apply in terms of Article 38 of its Statute: for the Court would
then have forsaken its function of deciding in accordance with law
and would bave assumed the role of a legislator; and it would
further have ignored the universal principle of law and logic that
a party whicb by agreement accepts an obligation of a certain
content, cannot, merely by that reason and without fresh consent
or agreement on its part, he held liable to an obligation of a sub-

stantially different content.' It is not reasonable to suppose that
the Court would thus have failed in its functions.
Nor does it seem that the Court could have intended to applythe
principle that an obligation is not extinguished by impossibility of
performance when the impossibility affects only one of two or more
equivalent methods of compliance therewith. The said principle
cannot find application in the present case, for the reasons stated in
paragraphs 24 and 27 above. The obligation was not one to submit
to "international supervision", but to the specific supervision of the

League organs. Submission to IJnited Nations supervision would
be a different obligation in substance as well as in form, and not a
mere equivalent method of complying with the same obligation.
That there were certain inherent and unavoidable differences,
appears to have been acknowledged by the Majority of the Court
in the 1955 Advisory Opinion, particularly in the following passage:

"The voting system is related to the composition and functions
of the organ. It formsone of the characteristics of the constitution
of the organ. Taking decisions bya two-thirds majority vote or by
a simple majority vote is one of the distinguishing features of the
General Assembly,while the unanimity mle was one of the dis-
tinguishingfeatures of the Councilof the League of Nations. These
two systems are characteristic of different organs, and one system
cannot be substituted for the other without constitutionalamend-
ment. 'Cotransplant upon the General Assembly the unanimity
rule of the Councilof the League wouldnot be simply the introduc-
tion of a procedure, but would amount to a disregard of one of
the characteristics of the General Assembly. Consequently the
question ofconformityofthe voting systemof the General Assembly
with that of the Councilof the League of Nations presents insur-
mountable difficultiesofa juridical nature".
In the result it seems evident that the interpretation of Reason

No. (i) is to be preferred whereby it was intended merely to provide
supporting material for the reasons following upon it.

' Vi& paras.23and 27 supra as to thematerial difierence in form and substance
between an obligation ta submit to Leaguesupervision in ofsMandates and
one tosubmit to United Nations supervision.
' "South-West Atrica-VolingProccdt<rAdvirory Opinionof June7th. 1955:
I.C.J. Reports 1955p. 75.342 SOUTH WEST AFRICA
(d) Reason No. (ii), by its wording, is intended as confirmation
of the "general considerations" contained in Reason No. (i). Ar-
ticle 80, paragraph 1, of the Charter reads as follows:

"1. Except as may be agreed upon in individual trusteeship
agreements, made under Articles 77, 79 and 81, placing each
territory under the trusteeship system, and until such agreements
have been concluded, nothing in this Chapter shall be construed
in or of itself to alter in any manner the rights whatsoever of any
states or any peoples or the terms of existing international instru-
ments to which Members of the United Nations may respectively
be parties".

The gist of the Article is that existing rights and instruments
would not beaffected by anything"in this Chapter .. .in or ofitsely'.
In other words, the Article does not purport to "maintain" or
"safeguard" existing rights and instruments against anything not
contained "in this Chapter". If, for instance, an existing right or
instrument should be extinguished, Say by common consent of the
interested parties or by impossibility of performance or the like, the

provisions of Article 80 (1) would not, nevertheless, keep them alive.
The matter is very aptly put by Joseph Nisot:
"This expression (maintains) is likely to lead to a misconception
as ta what Article 80, interpreted in accordance with its wording
and spirit, really means. The only purpose of the Article is to
prevent Chapter XII of the Charter from beingconstrued as in any
manner affecting or altering the rights whatsoever of States and
peoples, as they stand pending the conclusionof trusteeship agree-
ments. Such rights draw their judicial life from the instruments
which created them; they remain valid in so far as the latter are
themselves still valid. If they are maintained, it is hy virtue of
those instruments, not by virtue, of Article 80, which confines
itself to providing that the rights of States and peoples-whatever
they may be and to whatever extent they may subsist-are left
untouched by Chapter XII";

and,
"But, even supposing it did maintain anything, Article 80 could
only maintain whatever existed. It could neither resurrect extinct
rights nor create new ones". '

That the Court in 1950 was itself fully aware of the true meaning
and effect of Article 80 (I), appearsfromwhat was statedabout this
provision earlier in the Majority Opinion:
"It is true that this provision only says that nothing in Chapter
XII shall be construed to alter the rights of States or peoplesor the
terms of existing international instruments".

' Sisot, J."The Advisory Opinion of the International Court of Justonethe
International Statusf South-West Africa", S.A.L.J., 68.Part 3(August. 1951).
PP. 278-79.
"Znlrrnnlionnl slolO/ South-Werl Ahica: Advirory Opinion: 1.C.J Reports
'950". PP. 133-34. PRELI><INARY OBJECTIONS OF SOUTH AFRICA
343
It cannot, therefore, be assumed tliat the Court, in referring to
Article 80(1)in its Reason No. (ii), intended to apply the provisions
thereof to a purpose and effect for which, as the Court was aware,
they were not intended: this would again be tantamount to legis-

lation instead of interpretation and appiication of the law.
How, then, is the reference to Article 80 (1)in Reason No. (ii) to
he understood? The answer seems to be, again, that the Court was
concerned merely with a "generai consideration" of probability,
concerning a possible underlying, tacit intent or contemplation on
the part of the authors of the Charter, rather than with the effect
of the express provision as inserted in the Charter by them. In its
earlier reference to Article 80(I), at page 134,the Court had said that

"as far as mandated territories are concemed ... this provision
presupposesthat the rights of States and peoples shall not lapse
automatically on the dissolution of the League of Nations. It
obviouslywas the intention to saleguardthe rigiits of States and
peoplesunder dl circumslancesand in alrespects, ntil eachterritory
shouldbeplaced under the TrusteeshipSystem". (Italics added.)
This "preszrp~osition"and "ohviousintention" clearly refer not
to the contents of Article 80 (1).but to something tucitwhich in the

Court's view must probably have been in the minds of the authors
of the Charter. In dealing with Article 80 (1) in its Reason No. (ii),
the Court referred back to what it had said earlier and added that
"the purpose must have been to provide a real protection for those
rights" (italics added), i.e. including "international supervision"
and a duty to render reports to a "supenisory organ". Clearly this
"+urpose" also refers not to the contents of Article 80 (I),but to
the tacit presupposition or intent considered by the Court to have
probably existed in the minds of the authors of the Charter.
In other words, the Court was arguing from what it considered
to be probabilities inherent in objective features referred to by it
in its Reasons Nos. (i) and (ii), andseekingto drawfrom thoseproba-

bilities an inference of tacit agreement between the parties to the
Charter of the United Nations to the effect that Mandatories would
be obliged to submit to the United Nations supervision, pending
Trusteeship or other agreements with the United Nations. And, in
Reason No. (iii), it sought to draw a similar inference of a corre-
sponding tacit agreement on the part of the Members of the League
of Nations at the time of its dissolution. Respondent contends that
neither of these inferences could have been justified or would have
been drawn, had the Court been fully informed of aii the relevant
facts.

(e) In his judgment in the case ofRexv. Blom,Judge Watermeyer,
a South African Judge of Appeai and later Chief Justice of the
Union, stated as foiiows:
"In reasoning by inference there are two cardinal mles of logic
which cannot be ignored:344 SOUTH WEST AFRICA
(1) The inference sought to be drawn must be consistent with
al1the proved facts. If it is not, the inference cannot be drawn.
(2) The proved facts"shou1d be such that they exclude eve-
reasonable inference from them Save the one sought to be drawn.
If they do not exclude other reasonable inferences, then there must
be a doubt whether the inference sought to be drawn is correct".

These rules of logic are clearly of general application. In particular
theyare applied bv Courts of civilized States to the question whether
a tacit aiGement, or a tacit term in an express-agreement, can

justifiably beinferred or implied in a given case. The English Courts
are in this regard generallyguided by the "leading case" of Hamlyn
v. Wood, in which Lord Justice Kay said as follows:
"The Court ought not to imply a term in a contract unless there
arises from the lanauaae of the contract itself. and the circuni-
stances under ivtiicl;'it'is entered into, such an inferrnce that the
p:irties mu;[ Iiav~ intended tlie stipulation in qiirstion that the
Court ijiicces;:iril\ driventliïconclusionthat itiiiiistbc iinpliçd".'

To a similar staternent in his judgrnent, Lord Esher had added:

"It is not enough to Saythat it would be a reasonable thing to make
such an implication. It must be a necessary implication in the sense
that 1 have mentioned". a
A fresh exposition was given by Lord Wright in his judgment

in the House of Lords in Luxor, Ltd. v. Cooper, as follows:
"It is agreed on al1 sides that the presumption is against the
adding to contracts of terms which the parties have not expressed.
The general presumption is that the parties have expressed every
material term which they intended should govern their agreement,
whether oral or in writing. It is well recognised, Iiowever, that
there may be cases where obviously some term must be implied if
the intention of the parties is not to be defeated, some term of
which it can be predicated that 'it goes without saying', some term
not expressed, but necessary ta give to the transaction such business
efficacy as the parties must have intended. This does not mean
that the court can embark on a reconstruction of the agreement
on equitable principles, or on a view of what the parties should, in
the opinion of the court, reasonably have contemplated. The impli-
cation must anse inevitably to give effect to the intention of the
parties. These general observations do little more than warn judges
that they have no right to make contracts for the parties. Their
province is to interpret contracts". '

(f) When regard ishad to the considerations set out in the above
quotations, it is self-evident that in the absence of knowledge of
certain relevant facts, a conclusion arrived at in reasoning by

'Rcx v.Blom. 1939 A.D. r88.atpp. zoz-03.
' Hombn &Co. v. Wood &Co.: (r891) zQ.B. 488,p.494
Ibid. atp.491.
'Luxor, Lld.v.Cooper 1,941(1)A.E.R. 33).at pp.52-53. PRELIMlh'AKY OBJECTIONS OF SOUTH AFRICA 345

inference may be vitally different from what it would be if al1the
facts were known and considered.
In what appears to have been its crucial Reason, No. (iii), for
arriving at its conclusion under consideration, the Court inferred
that the League Assembly Resolution concerning Mandates, adopted
on 18th April, 1946, "presupposes that the supewisory functions
exercised by the League would be taken over by the United

Nations". Thereby the Court presumably meant that there must
have been a tacit agreement to that effect between the parties to
the Resolution. Similarly, as observed above, the factors involved
in the Court's Reasons Nos. (i) and (ii) were apparently relied upon
towards inferring a corresponding tacit agreement on the part
of United Nations Members, to the effect that Mandatories would
be obliged to submit to United Nations supe~sion pending or
failing Tmsteeship or other agreement. It seems quite evident that,

with knowledge of certain crucially important facts that were not
placed before the Court in 1950, the Court could not possibly bave
arrived at these conclusions by inference. Of particular importance
amongst the facts and material not presented to the Court in 1950,
were the following (in time sequence) :

(i) Respondent's express reservation of 11th May, 1945, at the
San Francisco Conference 'during the drafting ofthe Charter, which,
by itself and together with the reservations in the Preparatory Com-
missionand later at the First Part of the First Session of the General
Assembly in London during January, 1946, a rendered quite clear
that there wason Respondent's part no tacit agreement to, or acquie-
scence in, trusteeship under or supervision by the United Nations.

(ii) The rejection by the Preparatory Commission of its Execu-
tive Committee's proposal for a Temporary Trusteeship Committee,
without substitution of anythirig regarding possible transfer to,
or assumption by, the United Nations of any "functions under the
Mandates System", which factor, together with the other aspects

of the history of Resolutions XI and XIV, as dealt with in para-
graph 31 above, negatives a tacit intentionon thepart of the United
Nations that such functions would be transferred or assumed. '
(iii) The facts conceming the original proposal by China at the
final session of the Assembly of the League of Nations, and the
subsequent withdrawal thereof and substitution therefor of the

Resolution actually adopted. The originalChineseproposalsought
to achime by ex+ressresolutionwhat the Court considered tobe the

Vide para.30 supra and Chap. II. Part Aparas. 25-26 ruprThe text of the
memorandum set out in Chap. II. Part A, para. 25 suprwas before the Court in
1950. but the Courwaî not informed of the further paragraph set out in fo1tnote
at pVide para. 31 (e) supra andChap. II. Part A, para. zg (d)(e)suplo.
a Vide para.31 (d) suprn.
' Vide particularlpara.jr (fsupra.
* Vide para.32 (b) and (c) supya.

23346 SOUTH WEST AFRICA
tacit intention of the parties. But it had to be withdrawn becatcseit
becameplain that certainof the pavties would not agreethereto.Hence

this history by itself renders plain that there was no room for a
tacit intention as inferred by the Court; and together with the
other factors dealt with in paragraph 32 (d) and (e) above, it
shows that the tacit understanding was the reverse, viz. that
pending "other arrangements" there would be no obligation to
report and account.
(iv) The unanimous comments of the United Nations Special

Committee on Palestine, composed of eleven Membersof the United
Nations, and the statements by representatives of various States
during various debates at the United Nations, as set forth in para-
graph 34 (b) to (f) above. These comments and statements show
most unmistakably a general (or at least very widespread) under-
standing amongst Members of the United Nations that no super-
visory functions regarding Mandates (not converted into Tmstee-
ship) had ken taken over, and thus refute any suggestion of a
general tacit intention to the contrary.

Had the above facts been known to the Court in 1950, it seems
inconceivable that the Court could have arrived at its conclusion
regarding an obligation on Respondent's part to submit to United
Nations supervision.
36. Dissent /rom 1950 Opinion concerningSupernision:

(a) Minority Opinions :
Even on the basis of the facts before the Court in 1950,two of its
Members, Sir Arnold hlcNair and Judge Read, were not prepared to

subscribe to the finding that Respondent is ohliged to submit to
a supervisory power on the part of the United Nations, and gave
full reasons fortheir dissent. lAs far as Respondent is aware, these
reasons and the conclusions drawn from them have invited no
adverse criticism from writers on International Law. On the con-
trary, they find considerable support in the cntical comments of
such writers-as wiiiappear from sub-paragraph (b)below. Further-
more, the additional factual information now brought into consider-

ation, ' confirms the correctness of the result amved at in these
Minonty Opinions.
(b) Opinions of Writers :

(i) Even before the 1950Advisory Opinion, Haii, in deaiing with
the effect of the dissolution of the League upon Mandates, stated,
inter alia:
"...the supervisory functions of the League had corneto an end
beforethe supervisoryfunctionsof the United Nationscould begin
to operate, especially since the plan for a ternporary tmsteeship

' "Infernalional sfolus ofSoulh-Wesl Atricn, Advisory Opi:iI.C.JR.eports
1950". pp. 159-62,66-73.
' Vide para. 35(f] supra andearlier parthere referrto.348 SOUTH WEST AFRICA
And regarding the applicability and effect of Article 80 (1) of the
Charter he remarked:

"Article 80 (1) of the Charter seems to be the principal basis of the
Court's conclusionthat the Union of South Africa must report to
the General Assemhly. This Article provided that, until the con-
clusion of Trusteeship Agreements, nothing in Chapter XII of the
vightswhatsoeuerof any states or any fieoplesor the terms of existing
international instruments' (italicssupplied). The textclearly shows
anintention that Chapter XII shouldnot effectany alteration ofrights
or terms. This intention was 'entirely negative in character'. The
provision served an obvious purpose when Chapter XII of the
Charter was drawn UD: the Mandate was still in force at that time:
as the League of Nati'onshad not then heen dissolved, any alteration
of the existing situation was amatter for its consideration. Article
80 (1) was a precautionary provision designed to negative the
accomplishment of any change in the existing situation hy reason
of Chapter XII 'in or of itself'. It is not surprising that Judge
McNair found it 'difficultto see the relevance of this article'.
Yet the Court gave an affirmative effect to Article 80(I),turning
it into a positive 'safeguard' for maintaining the rights of states
and the rights of the peoples of the mandated territory. This is the
more notable because at a later stage the Court stressed the
'entirely negative' character of Article0 (z),declining to Say that
the latter imposed a positive obligation on the Mandatory even tu
negotiate with a view to the conclusion of a Trusteeship Agree-
ment.
No attention was paid by the Court to the fact that certain
states, which as Members of the former League of Nations may
have 'rights'under Article22 ofthe Covenant andunder theMandate
itself, had no responsibility forthe Charter and have never become
Members of the United Nations. For example, Finland, Ireland and
Portugal, which wererepresented at the final sessionof the Assembly
of the League of Nations in 1946, are in this category. If their
rights are 'maintained' by Article 80 (1)of the Charter, they bave
no voice in the supervision to be exercised hy the General Assem-
bly". 1
(iii) In August, 1951, followed the article by Joseph Nisot already
referred to in paragraph 35 (d) above. Apart from the comment
already cited there concerning Article 80 of the Charter. the
learned author stated:

"Now, what, in actuality. were the rights derived by peoples
from the Mandate and from Article 22 of the Covenant? They were
not rights to the henefit of abstract supervision and control. They
consisted of the right to have the administration supervised and
controlled by the Councilofthe LeagueofNations, and, in particular,
the right to ensure that annual reports were rendered by the man-
datory Power to the Councilof theLeagueof Nations, as it was, and
the right to send petitions to theemetariatoftheLeagueof Nations. PRELIMIXARY OBJECTIONS OF SOUTH AFRICA 349
What has become of these rights? They have necessarily disap-
peared as a result of the disappearance of the organs of the League
'(Council,Permanent Mandates Commission, Secretariat).
The Court could not correctly conclude that such rights had been
maintained by Article 80, except hy contending at the same time
that for the purposes of the Mandate for South West Africa, the
said organs had snrvived the dissolution of the League.
,... Being unable, and for good reasons, so to contend, the Court
creates new rights. To the Court, the right of peoples 'maintained'
by Article 80 is linked to the United NationsOrganisato i n...
According to its thesis, it is because Article 80 'maintains' the
rights of peoples that these, though linked to the League, must now
be deemed linked to the United Nations! To infer this from a text
worded as is Article 80 amounts to assnming that, with respect to
the mandates system, the United Nations stands as the legal
succesior of theLeague. an assumption inconîistent with the dis-
cussions of San Francisco and with tlie very fact that the Cliarter
provides for the conclusion of tmsteeship agreements". '

Regarding the resolution of the 18th April, 1946, of the League
Assembly, he continued:

"... one fails to see how this statement can provide any support
for a suggestion that it was the Assembly'sopinionthat a mandatory
Power, though not bound by a triisteeship agreement, was under
an obligation to suhmit to supervision and control by the United
Nations. This was no more the opinion of the Assembly of ,the
League of Nations than that of the General Assembly of the United
Nations, which, by its resolution of 9th February, 1946,urged the
conclusion of tmsteeship agreements. implying that no impiemen-
tation of the principles of the tmsteeship system-therefore, no
supervision or control-was possible in the absence of such agree-
ments". '
In the final portion of this part of the article, Nisot referred to
the failure of the authors of the Charter

"to provide for international supervision with res ct to the obli-
gations incumbent on a mandatory State, shoul8eit elect not to
conclude such an agreement" (i.e. Tmsteeship Agreement).

He concluded:
"This Jack of foresight has resulted in the present situation, which
the Court attempts itself to redress, stepping out of its role as
interpreter of the law to assume that of legislator". a

(iv) Georg Schwarzenberger commented, intea rlia, as foiiows:
"... the World Court was facedwith the issue of whether the United
Nations had become responsihle forthe <liscliargeof the supcrvisory
function \r,liicIithe 1.eagurhaclfornierly excrcised in relation to the

Xisot, S.A.L.J.. Vo68 (1951).p. 279,
a Ibid.p. 281.39 SOUTH WEST AFRICA

only still surviving mandate. In support of a positive answer, the
Court could neither rely on any general principle of succession
betweeninternational personsnor auy relevant transaction betmeen
the two collectivesystems... The still misçinglink with the United
Nations was provided by the Court's interpretation of Article 80
ty Opinionthat 'thisprovisiononlysays that nothing in Chapter XIIri-
shallbe construed to alter the rightsof States or peoplesor the terms
of existing international instruments'. Still, with the assistance of
a somewhat debatable presupposition and 'obvious'intentions, the
lastgap was bridged. It is not surprising that Judge McNairshould
have found it 'difficultto see the relevance of this Article'.
Having filled the legal void which separated the supervisory
functionsof the Leagueof Nations fromthose ofthe United Nations,
the Court proceeded with its self-imposed task of 'judicial legis-
lation' "'

Again the cnticism of the Majority Opinion of 1950 was possibly
in a large measure derived from the feature that the Court did not
have aU the relevant facts before it in 1950.

37. Respondent submits that the Court will in this case, for the
reasons advanced above, conclude that Respondent's obligation,
derived from the Mandate agreement, to report and account to, and
submit to the supervision of, the Council of the League of Nations.
lapsed upon dissolution of the League and has not been replaced by
any similar obligation to submit to the supervision ofany organ of
the United Nations or any other organisation or body.

38. In Part B of this Chapter Respondent stated the submission

that the only International Persons with whom the Mandate agree-
ment could have been contracted as parties to a treaty or convention,
and who could have derived rights or legal interests therefrom uis-
à-uitshe Mandatory, urerethe League of Nations and/or its Members.

39. The League itself could have been a party to the agreement,
deriving rights therefrom against the Mandatory, only on the basis
of the League being regarded as a legal persona, and, naturally, only
forsuch time as it existed as such. It must follow, then, that upon
dissolution of the League it could no longer be a party to a treaty
or convention, and no obligations could any longer be owed to it.
Itfollows further that, on the premise stated in paragraph 38 above,
only the situation as regards League Members requires further con-
sideration with a vie~ to detemining whether the Mandate could
possibly, as a treaty or convention, have survived the League.

' Schwarrenberger.op.cit(3rd ed.). Vo1,l'p.101-OZ. PRELIIINARY OBJECTIOSS OF SOUTH AFRICA 35I
If, on the premise of the League heing a legal persona, League

Members were not co-parties to the respective Mandate agreements,
those agreements would have been ordinary bilateral treaties which,
on the demise of one party thereto (Le. the League) would have
terminated or become void. '
If it be assumed, however, that League Members did become
parties or co-parties tothe Mandate agreements, this could only have
been on one or other of the bases discussed in paragraph 16 above.

On this assumption Respondent will proceed to deal firstly with the
premise stated in paragraph 38 above, viz. that apart from the
League, no International Persons, other than League Members,
could have acquired contractual rights or obligations against the
Mandatory, and wiil thereupon develop the submission that the
League Members could have obtained their contractual rights or
legal interests vis-à-vis the Mandatory only in theircapacity as, and

for the duration of their being, Members of the League.
40. The history of the Mandate agreement itself shows that no
States other than League Members could have been parties thereto-
Savefor the limited participation of the Principal Allied and Associa-

ted Powers. which did not, however, result in any rights or legal in-
terests for them as Principal Po~~ers.~ The Council of the League, in
agreeing with the respective Mandatories, acted in pursuance of
Article 22 (8) of the Covenant, which was a Convention as between
League Members. Insofar as Article 22 (8) could be regarded as
being an authorization to the Council to act on behalf of States as
distinct from the League itself,'it remained an authorization to

represent League Members and League Members alone. The only
manner, therefore, in which non-Member States could in any
possible sense become parties to the hfandate agreements, would be
by joining the League as Members thereof. As was stated by Sir
Arnold McNair,

"As regards States which are not members of the League, the
basic fact is that the Covenant and the mandates are fiactaquae
tertiis necnocentnecproscmt,and it is not open to a group of States
to create a new international institution and then to demand that
other States should recognize it". '

41. On analysis it will he found that the Covenant of the League c
and the Mandate instruments made in pursuance thereof, bear out

' Vide Oppenheim. op.cil.(8th ed.), Val. 1, p. 944; Schwarzenbergeop. cil.
(3rd ed.)Vol. 1,p. 176; McNair, A. D. The Law O/ Trenfies-BritishPractice and
Opinions (1938). pp. 389, 390. 405 and 433; Starke, op. ci(.(3rd ed.). p. 324;
François.1. P. A.Grondlijneri"an hel Volkenrech(2nd ed.). p. 349.
Vide para. 14 supra.
a Ibid...oara10.
' McNair. A. D. "Mandates". C.L.J., Vol. 111, No.2 (~928). p. 157.Vide also
Wright. O."Treaties Conferrins Riahts in Mandated Territorieç", A. I.IVol. 18
(0c~ober: 1924). pp. 786-87.- -352 SOUTH WEST AFRICA

fuiiy that States other than League Members were not intended to
derive contractuai rights or legai interests from their provisions.
The Covenant provided. inter alia, as follows with regard to
Membership in the League:

those of the Signatories which are named in the Annex to thise
Covenant and also such of those other States named in the Annex
as shaUaccedewithout reservation tothiscovenant". (Article I(I).)

(b) "Any fdiy self-governing State, Dominion or Colony not
admission is agreed to hy two-thirds of the Assembly,provided..."
(Article I (z).)

(c) "Any Memher of the League may, after two years' notice
of its intention so to do, withdraw from the League, provided ..."
(ArticleI (3).)
(d)"Any Member of the League which has violated any cove-
nant of the League may be declared to be no longer a Member of
the League by a vote of the Councilconcurred in by the Repre-
sentatives of al1 the other Members of the League represented
thereon". (Article 16(4).)
(e) "No such amendment [to the Covenant] shall hind any
Memberof the League which signifiesits dissent therefrom, but in
that caseit shallaseto bea MemberoftheLeagueW.(Article26 (z).)

The Covenant did not mention, in so many words, the possibility
of dissolution of the League, but Article 3 in general terms em-
powered the Assemhly to deal with any matter within the sphere of
action of the League.

42. In al1 except four of the Articles of the Covenant (the ex-
ceptions being Articles 2, 9, 21 and 24) the expression "Member(s)
of the League" is employed; and that so in dealing both with nghts
and benefits conferred on Member States and with obligations and
duties imposed on them. As examples the foliowing are mentioned:
Article3: Assembly consists of Representatives of "the Members
of the League". "Each Member of the League" has one vote.

Article4: Representation in the Council for the Principal Powers
and "four other Members of the League" to be elected by the
Assemhly.
Article6: Obligation imposed upon "the Members of the League"
to contnhute to expenses of Secretariat in accordance with ap-
portionment.
Article 7: Diplomatic privileges and immunities of Representa-
tives of "Members of the League".

Arricle 8: Obligation upon "the Members of the League" to
interchangr ii.formation as to armaments, etc.
Article 12: Obligation upon "the Members of the League" to
suhmit disputes between themselves to arbitration. PRELIAIISARY OBJECTIOSS OF SOUTH AFRICA 353
Article 15: Obligation upon "hfembers of the League" to submit

disputes between themselves to the Council of the League.
Article zz:Equal opportunities for trade and commerce of "other
Nembers of the League".

13. Certain provisions of the Covenant were such that non-
hfembers of the League could benefit from them, in an indirect
manner or by the grace of the League or its Members. Thus pro-
motion of the League'sgeneral object "to acbieve international peace
and security" 'would certainly benefit al1nations, whether >lembers
of the League or not. But this factor would not, by itself, enable
such non-hlember States to claim that they were parties to the
Covenant or that its provisions conferred any rigbts or legal inter-
ests upon them, as little as they would have been prepared to accept
a suggestion that the provisions of the Covenant imposed any legal
obligations upon them.
Throughout the Covenant the intention was clear that insofar as
its provisions conferred rights or legal interests or imposed legal

obligations upon States,they diclso with reference only to Members
of the League. There wereno provisions capable of being interpreted
as stipulations for the benefit of non-Member States, resulting in
"legal interests"' being vested in such States, and capable of being
turned into rights by acceptance or exercise on their part. The
basic pnrpose of the authors of the Covenant in that regard was
obvious, viz. to reserve rights and legal interests for such States as
were, inter alia, willing ta accept also the obligaLionsof Membership.
Significant illustration was affordeti by the provisions of Articles
16 and 17 of the Covenant. Article 16 provided that a Member
resorting to war "in disregard ofits covenants under Article 12,
13 or 15". would be deemed, i$so facto, to have committed an act
of war against al1other Members of the League: the latter would
then be obliged to take certain action against the "covenant-break-
ing State" and to support one another in that regard. Articles 12,13
and 15 related to methods of peaceful settlement of disputes. but
only disputes between Members of the League: hence Article 16

applied only where a Member had failed to resort to those methods
relative to such disputes. Article 17 proceeded to deal with disputes
between a llfember and a non-Member State, or between non-
Member States inter se, in order to niake, for such cases, provision
corresponding to that contained in Article 16. But as a prerequisite
it prescribed that non-Members involved in such a dispute should
be "invited to accept the obligations of membership in the League
for the purposes of such dispute, upon such conditions as the Council
may deem just". Upon acceptaiice of the invitation the provisions
of Articles rz to 16 would apply, with such modifications as the
Council might deem necessary: in other words, the non-Men~ber
--
' Preamble othe Covenant.354 SOUTH WEST AFRICA

State(s) would then have the benefitof those provisions, on the same
basis as League Members, bnt only after acceptanceof corresfionding
Members' obligations. In the event of a non-Member's refusa1 to
accept the obligations of membership for the purposes of a dispute,
and resorting to war against a League Member, the provisions of
Article 16 would apply "as against" it: in other words the non-
hlember could thenexperience the detrimentenvisaged by Article 16
(for protection of a League Member). but could not invoke the
benefitthereof upon being attacked by another State.

44. In terms of Article 22 of the Covenant the "tutelage" en-
trusted to Alandatories over Mandated territories would he exer-
cised "on behalfof the Leagzie".
The Mandatories were, therefore, in terms of Article 22, to be

responsible to the League-in other words, either to a distinct inter-
national entity existing apart from its Members, or to a collection
of States which togetherformedan association. On eithersupposition
non-Members would again be excluded from the circle of inter-
national peFsonsintended to acquire rights against the Mandatory.

45. The distinction between the position of Members and non-
hlembers, as above observed, in the provisions of the Covenant,
was maintained in the Mandate agreementsmade in pursuance of
the Covenant. In the preambles the Mandatories undertook to
exercise their Mandates "on behalf of the League". Although non-
Members could here also benefit indirectly or by grace of the
hlandatories, they would not be able to point to any provision
intended to operate in their favour and conferring upon them a
legal interest or right against the hlandatones. There could on their

part be no claim, asof right, for substantive benefits such as "open
door" facilities or acceptance of missionaries that were their nation-
als. It was in keeping with this lack of substantive right or legal
interests on the part of non-Members that procedural facilities with
a view to enforcement of substantive rights and interests were also
confined to League Memhers (Le. participation in League super-
visory activities and the bringing of contentious proceedings in the
Permanent Court of International Justice under the clauses in the
various Mandates corresponding to Article 7 in the Mandate for
South West Africa).

46. The practice of States and of the League itself bears out that
non-hfembers were not intended to acquire rights or legal interests
from the Covenant or the Mandate agreements. Thus,

(a) The United States of America, which did not join the League,
entered into separate treaties with certain Mandatories in order to
secure the same rights in the temtories as Members of the League. '

' Vide SIcNair, C.L.J.. Vol.(1928)p. 157; Wright. oci;p. 55. SOU'i'H\VEST .\FRIC:\
356
like\vise, obligations and duties imposed \rfould be binding on a
State as long as its membership continued and no longer-hence the
proviso in the last paragraph of Article I of the Covenant to the
effect that a hlember is allowed to withdralrr voluntarily, on the ttvo

years' notice there prescribed, only if "al1 its obligations under this
Covenant shall have been fulfilled at the time of its withdrawal".
48. Again the same intention as in the Covenant is manifest from
the provisions of the Alandate agreements entered into in pursuance
of the Covenant.

(a) The very concept of a "hlandatory on behalf of the League", '
tends to negative any contemplation of rights or legal interests being
retained by a State after loss of its membership in the League.
(b) Attention should be drawn again to the different bases upon
xvhich it might be possible at al1 for rights or legal interests to be
vested in League Members, as distinct from the League itself.

The first of these would be that the League is not regarded as a
legal persona. On this basis the concept of a "Mandatory on behalf
of the League" would have to be interpreted as meaning really a
Mandatory on behalf of theslates associntedin theLeagtieas Members
thereof;2 this would logically confineMembers' rights to the duration
of their membership, otherwise the description would become inapt
as soon as certain members left the League: for then the Mandatory
would be a Mandatory "on behalf of League Members and certain
other States". In the late 1930's this would have meant that the
Mandates would have been heldalso "on behalf of" somefitteenStates

other than League Members. Moreover, inasmuch as League
Jfembers would in their verycovenanlof associationhave authorised
the Council to act as an agent on their behalf in entering into the
Mandate agreements, the only natural construction would be that
the authority \vas confined to rendering them parties to the agree-
ments /or the purposes O/their association in the League-in other
words, for as long as they should be hfembers of the League.
The secondbasis upon which the matter is to be considered is that

the League is regarded as a legal persona and therefore as the party
primarily represented by the Council in the contracting of the
Mandate agreements. It would be surprising if, on this basis,
Members could have obtained rights more durable than on the
basis of the League not being a legal persona and they themselves
being the principal parties represented by the Council. And, indeed,
this cannot be so. For, on this bais, an intention to confer a right
or legal interest upon Members themselves can only be arrived at
by inference from the fact that certain of the provisions of the
hfandate agreements would appear to have been intended for their

' .Art22 of the Covenant and the l'reambles to the Mandate agreements.
' Videpara. i6 (asupra.
Vida \Valters. op. cit..1.pli. 64-65. PRELIMINAKY OBJECTIOSS OF SOUTH AFRlCh 357
benefit.' They would not, however, be able to point to any pro-
vision justifying an inference that they were intended to continue
to enjoy the interests independently of their membership in the

League.
(c) Strange anomalies, similar to those discussed in paragraph 47
above, would be involved in a suggestion that a State would
continue to hold rights or legal interests by virtue of the Mandate
agreements after loss of membership in the League. Such a State
may have been expelled because of belligerency, and would then
nevertheless be entitled to cal1 the Mandatory to task concerning
fortification of the Territory or military trainof the natives. Or
the cause of expulsion may have been a flagrant breach of the
obligation undertaken in Article 23 (e) "to secure and maintain

freedom of communications and of transit and equitable treatment
for the commerce ofal1Membersof the League" :and yet such State
could then still insist on freedom of entry, residence and movement
in the Mandated territory for its nationals as missionaries. and in
the case of A andB Mandates, on "open door" privileges for al1its
nationals.
49. For the above reasons the conclusion follows that insofar as
Members of the League were parties to and/or the holders of nghts

or legal interests conferred upon theni by the Mandate agreements,
they. in pursuance of the manifest intention of the agreements
themselves, ceased to be such parties and lost such contractual
rights or legal interests when they ceased to be Members of the
League upon dissolution thereof.

E. FINAL OBSERVATION ON EFFECT OF CONCLUSIOSA SRRI\.ED
AT IN PARTSC AND D
50. The effect of the conclusions stated in PaCtand D above is
that, upon the dissolution of the League, the Mandate for South
West Africa lapsed in sofar as its previous existence as an operative

treaty or convention was concerned. Part C demonstrated that the
procedural obligations, pertaining to supervision by the Council of
the League, were dependent for performance on the existence of
the League and lapsed for that reasori upon its dissolution. Part D
demonstrated that the substantive obligations lapsed insofar as
they were contractual obligations iowed ta other international
persons: they could not be owed to a non-existent League; and
insofar as they may have been intended to be owed to States, they
were not covenanted to be owed to any States not Members of
the League. If the League had been a legal persona which could
have been a party to a treaty or convention, it ceased to be so on
its dissolution and its Members ceased to have the qualification in

consequence whereof they might have been parties.
Consequently there ceased to be "in force" a "treaty orconven-
' Videpara16 (b) (ii) and (iii) supra.358 SOUTH WEST AFRICA
tion": theparty or parties with whom the agreement had been con-

tracted, fell away, ' as well asthecontractual obligationsundertaken
vis-à-v thesm; and there were no longer "provisions" to the"inter-
pretation or application" of which a compulsory jurisdiction
clause could have reference.
It follows further that insofar as any powers, rights and obli-
gations may have survived the dissolution of the League, this would

have to be in an objective or "real" sense independent of the
operation of a treaty or convention.

51. The fact that upon the dissolution of the League the inhabit-
ants of the Mandated territories continued to exist as communities
for \vIi~sebeneht :idministration in accordance with the "sacred
trn?t" \vasirit<:ii(lcd,o~~ ~ ~~-~~ ~i~crthe above soiicliision. \\'hatever
might have been the position of the peoples inhabiting A Mandated
areas, 2the inhabitants of a C Mandated area could not on ordinary

principles of international customary law be regarded collectively
as an international person or separately as international persons.
The possibility exists that individuals, though not ordinary or
full subjects of International Law, can by agreement between States
be the bearers of rights in International Law in a sense and to an
extent intended by the parties to such agreement. Whether such
intent exists in a particular case, is always a matter for interpre-

tation of the agreement in question. The general trend of opinion
appears to be that rights in International Law cannot be considered
to have heen conferred upon individuals unless there is covenanted
for them procedural capacity to pursue their interests in an inter-
national political andior judicial forztm. '
In the case of the C Mandate agreements, although obligations

imposed upon the Mandatories were undoubtedly intended for the
benefit of the inhabitants of the territories, there is nothing to
indicate that rights in International Law vis-à-v thesMandatories
were intended to be conferred upon them. Certain writers suggest
that the inhabitants were, in a sense, accorded such rights in that
they were permitted the facility of petitioning the League. ' It is
to be recalled, however, that there wasno provision for such petitions

either in the Mandate agreements or in the Covenant of the League.
The Mandatories did not by international agreement undertake any
obligations relative to petitions by inhabitants. Insofar as the rules
of procedure regarding petitions, as laid down by the Council,
required petitions from inhabitants to be forwarded through the
respective hlandatories, thiswasin reality directed towards affording

the Mandatories an opportunity of commenting on the contents of

' Vidc Part D. paragraph 39 and the authorities quoted in footnoiean
p. '39 supra.
* Vide Francois. opcil.(2nd ed.), p. 233. Karowicr. M. St. "The Roblem of the
International Personality of Individ~als", A.J.I.L., Vol. 50,(iq561, pp. 536.561.
' Ibid.
Vide e.g Wright, op.cit,p. 457. PRELIMINARY OBJECTIOSS OF SOUTH AFRICA 359
the petitions. ' If there could be said to have been an obligation

upon the Mandatories to fonvard the petitions to the League, the
obligation was of a procedural nature only, concerning the Manda-
tories' relationship with the League; and it was not of the nature
of an obligation towards the inhabitants undertaken by treaty or
convention. Moreover, although inhabitants could subinit petitions,
they had no capacity of Pursuing such petitions in the proceedings
of the League itself; even consideration of the petitions depended
entirely upon the will of the Members and Organs of the League.
In al1 these circumstances it seems erroneous to suggest that the
facility for submitting petitions was to be regarded as a right in

International Law. vested in the inhabitants vis-à-uis the Manda-
tories.
However, even if such a suggestion could be countenanced, the
"right" involved therein would have been dependent entirely on
the existence of the supervisory body. Upon the dissulution of the
League and the consequent lapse of the Mandatories' obligation to
report and account to the Council as supervisory organ, the very
basis of the suggested "right" on the part of the inhabitants also
fell away.

In the result no possibility exists of the inhabitants having rights
which involve any procedural capacity for them in an international
forum, whether political or legal. If they could possibly he said to
have rights in International Law in any other sense, such a pro-
position would have to be fonnded on some hasis other than inter-
national treaty or convention.
52. Although there could be controversy on the question whether

the "sacred trust" and "tutelage" intended for the benefit of the
inhabitants are now to be regarded as falling within the realm of
International Law at all, or whether they are matters of domestic
law or of morality only, a decision thereon is not necessary for the
purposes of Respondent's objection to jurisdiction in the present
case. For that question concerns the nature and scope of aspects
of the Mandate institution which could only exist, if at all. inde-
pendently of the continued operation of the Mandateas atreaty or
convention-also referred to in the Advisory Opinion of 1950 as
corresponding to "real" rights and obligations. Whatever nature

and extent may be assumed for such aspects of the Mandate
institution, the contention that the Mandate has ceased to operate
as a treaty or convention is not affected.
53. As has been referred to in paragraph z above, Applicants
rest their claim to jurisdiction on Article 7 of the Mandate for
South West Africa, read with Article 37 of the Statute of the Court.
Respondent has also pointed out that inasmuch as Article 7 pro-

vided for reference tothe Permanent Court of International Justice,
' VidcChap. II,Part A, para14supra.
Vidc e.guncertainty expreçsed by the United Nations Special CornOnttee
Palestine, para. 34 (b) supra.
a Videpara. 3 rupo.360 SOUTH WEST AFRICA
Article 37 of the Statute is a necessary link in the chain of Appli-
cants' claim, ' and that Applicants must therefore perforce base
such claim on the contention that the obligation to submit to
compulsory jurisdiction, as originally covenanted in Article 7 of
the Mandate agreement, still exists as a provision of a "treaty or
co~tve~~lioilz force".
A contention that the obligation in question survived the disso-

lution of the League as an aspect of the Mandate institution which
was inclependent of the continued operation of the Mandate as a
treaty or convention. would in Respondent's submission be un-
tenable. ,An obligation of a State to submit to the jurisdiction of
an international Court at the instance of specified other States,
must rest on operative agree~neno t r co?tse~tt that effect-in other
uzords it must necessarily be "contractual" in nature and cannot
possibly he said to be something "real" pertaining to title to or the
status of a territory. So, also, Article 7 of the Mandate for South
West Africa bound Respondent as long as it was part of an operative
convention or treaty, and no longer. But even if such a contention
could be tenable, it would not avail the Applicants, inasmuch as
it would not bring their claim within the provisions of Article 37
of the Statute.

54. For the reasons that have been advanced in this Chapter,
Respondent suhmits that the basic premise of the Applicants' claim
to jurisdiction does not apply. The Mandate could have survived
the League of Nations, if at all, only as an institution existing
independently of treaty or convention. In the sense that the
Mandate uras, in the time of the League of Nations, a treaty or
convention with "provisions" operating between international
persons, which "provisions" could give rise to disputes between the
parties thereto or between the Mandatory and States having legal
interests therein, and which provisions inctuded in their number an
Article 7, providing for reference of such disputes to the Permanent

Court of International Justice-it is in the sense of being such a
treaty or convention that the Mandate has lapsed and is no longer
"in force" within the meaning of Article 37 of the Statute of the
Court.

Ibid.para.2. PRELIMISARY OBJECTIONS OF SOUTH AFRICA 361

CHAPTEK IV

SECOND OBJECTION

THE ALLEGED DISPUTE 1s NOT BETWEEN RESPONDENT AND
"ASOTHER ME~IBE RF THE LEAGUE OF NATIONS' 'N TERIIS OF

ARTICLE 7OF THE MANDATE.

I.In this Chapter Respondent deals with its Second Objection,
namely, that even if there could be said to exist a "treaty or con-
vention in force", in terms of Article of the Statute of the Court,
to the provisions of which Article 7 of the Mandate could have
application, the Applicants have no loczrsstandi inasmuch as they
both ceased to be Members of the League of Nations at its dissolu-
tion in April,1946.1

2. Each of the Mandate instruments contained identical pro-
visions (save for an addition in the case of the Mandate for Tan-
ganyika) for compulsory jurisdiction of the Court, in the following
terms:

"The Mandatory agrees that, if any dispute whatever should
arise between the Mandatory and another Memberof the Leagueof
Nations relating to the interpretation or the application of the
provisions of the Mandate,uch dispute, if it cannot be settled by
negotiation,shall be submitted to the Permanent Court of Inter-
national Justice provided for by Articleof the Covenant of the
League of Nations".
For the Court to have jurisdiction by virtue of the aforesaid

provisions there must be concurrence of al1 the following essential
conditions, namely:
(a) there must be a "dispute":

(b) the dispute must exist "between the Mandatory and another
Member of the League of Nations";
(c) the dispute must relate to "the interpretatioor application
of the provisio'nsof the Mandate";

(d) it must be established that the dispute "cannot be settled by
negotiation".
This particular Objectioninvolves only the one essential require-

ment mentioned in (b) above, nsmely, that because Applicants are
not Members of the League of Nations the alleged dispute is not
with "another Member of the League of Nations".
' V~deApplicantMemor~alp.go.

24362 SOUTH WEST AFRICA
3. In construing the expression "another Member of the League
of Xations" in Article 7 of the Mandate agreement, the following

accepted rules of interpretation are applicable:
(a) The Mandate instrument records the terms of the Mandate
as "defined" by the Council of the League of Nations, acting for

the League and/or its Members on the one hand, and accepted by
the Mandatory on the other hand.'
In the interpretation thereof effect must accordingly be given to
the common intention of the parties, which must be ascertained
from the laneuaee used bv them. read in the lieht of the circum-
stances prev$ling at the time whln the instrumeGt was drafted and

the Mandate accepted upon the terms therein defined. a Circum-
stances arising thereaftec unless and except insofar as they result
in an alteration of the terms of the Mandate by agreementof the
parties concerned, cannot be relied upon to give any article in the
Mandate instrument a meaning other than that which it was

originally intended to have.
(b) The doctrine of in pari materia permits of reference to con-
temporaneous instruments covering the same field as, and inti-
mately linked with, the Mandate instrument in question as an

aid towards ascertaining the intention involved in a particular
provision in the Mandate.
Thus in the Mavrommatis Case where the Court was concerned
with the interpretation of an article in the Mandate for Palestine,
reference was made to the Mandate for Tanganyika. '

(c) There must be observance of the rule that international
engagements purporting to confer jurisdiction on the Court ought
to be strictly interpreted, and unless it is clear that the parties
agreed to confer jurisdiction over the concrete case, jurisdiction
should be declined.

' Vidc Preamhle to the Mandate.
Vidc InirrplclolioofrhcCavcniia of1919 caccrning Emplayment of Women
dtdringthe Nighi. P.C.I. J..Ser.A/B,Fasc.No50, 15th November, 1932. p.383-"the
words have no value except as an expression of the intention of the parties"; McNair.
op. cil., p. 185. On contemporaneivide Fitrmaurice, G. "The Law and Procedureof
the International CourtofJustice 1951.4: Treaty Interpretationand other Treaty
points".B.Y.B.I.L., (1957).pp.203-04,212.
Gnternporaneity"itas "a major principle" oftreaty interpretation.intsr alio. for
the reason that "Unlike private contracts, the average duration of which is rela-
tively short, treaties may endure for considerahle periodr and even for centuries".
(B.Y.B.I.L. (1957). pp. 203-04).
The Mnurommntis Pnlcrtrnc Cactrriar. P.C.I.T..Ser.A. No. 2.30th August,
,924 Vtdt dissenting optnions of Judger Moore and Rustamante at pp 61 aid 82
reslwcti\,elgVide al% Inlrtplrrorionof rhrCavcni~a O/1919 ~accrn8ng Emplny-
ment 01 Womrn durtng rhoNtn"l..I'C 1 1 .Scr A R. Fass So .0. 1.th Sovenll>er.
1g3z.P~. 380-8r. -
' Case caccrning the Fnclory <ilChorzdw. P.C.I.J.. Ser. A. No. 9. 26th July. 1927,
p. 32; Phosphates in Morocco. P.C.I.J.,>r.AIB, Fasc. No. 74, 14th June. 1938, pp.
23-24; Rosenne. S. Th Intcrnatiaal Coirvl of justice(1957). pp. 260. 318-20.
Vide alro The Maur~nmolis Palestine Cmtc~ssiar, P.C.I.J., Ser. A. No. z.30th
August. 1924, pp. 16-19. PRELIlillNARY OBJECTIONS OF SOUTH AFRICA 363

As Lauterpacht States:
"The Court .. . has emphasised repeatedly the necessity for
extreme caution in assuming jurisdiction, whichmust be proved up
ta the hilt. NumerousJudgrnents showthe Court as 'bearingin mind
the factthat its jurisdiction Limited,that it is invariabl based on
the consent of the respondent and only exists in sa ar as this
consent has been given'. Nothing should be done which creates
the impression that the Court, in an excess of zeal, has assumed
jurisdiction wherenone has been conferred upon it". '
4. The provisions of Article 7 of the Mandate could be invoked
by other Members of the League of Nations for the enforcement
of the Mandatory's obligations in which they had a legal interest,
insofar as such interest was intended to be justiciable.

In Chapter III above the legal interest of Members in the obli-
gations imposed on the Mandatory were stated to have been as
follows, depending on whether the League of Nations was a legal
persona or not, viz:
(a) On the basis that the League was not a legal persona, al1the
contractual obligations would have been owed to the Members
of the League, who would then as Mernbershavehad a legal interest
in the observance by the Mandatory of al1such obligations.

(b) On the basis, however. that the League mas a legal +ersana,
the said obligations would have been owed ta the League itself;
and Members of the League would have had a legal interest in
such obligations vis-à-vis the Mandatory only insofar as the latter's
obligations were intended to operate for the benefit of Members
and their nationals (in addition to operating for the benefit of the
inhabitants of the Mandated territory).'
It is not necessary for the purposes of this Objection to deal with
the nature and compass of the disputes intended to be justiciable

under the compulsory jurisdiction clause, a matter which will he
dealt with fully in Chapter V below. It is, therefore, unnecessary
in considering this Objection, ta decide whether the legal interests
of Members were as stated in paragraph (a) above or as stated in
paragraph (b) above and to what extent such interests were in-
tended to be justiciable.
Although Respondent denies, for the reasons stated in Chapter
V below, that the alleged dispute raised by Applicantsis justiciable
under the compulsory jurisdiction clause. Respondent will for the
purposes of the argument in this Chapter assume the widest possible
ambit (during the lifetime of the League) of Members' legal interests
and of the compulsory jurisdiction clause. In other words, Respon-

dent will for the said purposes assume that Members of the League
' Asquoted fromthe Mavrommnlir Case.
Lauterpacht. The Dcvelopncnt of Ini~rnnfionnlLaw by the International Cour1
(1958).P.gr.
' VidcChap. III. para.(a)reawithpara 16(a)supra.
Ibid.. par17 (bread with para16 (b). 364 SOUTH WEST AFRlCA
had a legal interest in al1 the substantive obligations imposed by

the Mandate, even where these obligations were intended solely
for the benefit of the inhabitants, and will also assume that the
compulsory jurisdiction clause was intended to apply in respect of
al1such obligations.
Respondent's submission is that, on the wide assumption stated,
and a fortiori on the basis of any narrower ambit of Members' legal
interests and of the compulsory jurisdiction clause, the Applicants
are not qualified to invoke the said clause in that neither of them
is "another Member of the League of Nations".

5. The Mandate agreements were entered into in pursuance of
Article 22 of the Covenant of the League of Nations. In Chapter
III above it has been shown that upon a proper and detailed
analysis of the Covenant the expression "Member of the League"
wherever it appears in that document contains within itself a

qualification, namely, membership. which must be satisfied at the
time when the provisions of the Covenant are sought to be invoked
both for the exercise of a right and for the enforcement of an obli-
gation due by another. l
Likewise it has been shown that, insofar as the Mandate instru-
ments incorporated obligations for the benefit of Members of the
League, such benefits were intended to be enjoyed by a State only
while it continued to be a Member.
Upon termination of its membership a State ceased to be qualified

for the enjoyment of such benefits and therefore lost its legal in-
terest in the observance of the said obligations. In respect of obli-
gations imposed solely for the benefit of theinhabitants of Mandated
territories the position was exactly the same insofar as other
Members of the League had any legal interest in the observance
thereof by the Mandatories. Upon termination of membership such
legal interest would also have disappeared.
It is precisely for the reasons aforestated that the compulsory
jurisdiction clauses in the Mandate instruments were so worded

as to make the provisions thereof available to Members of the
League only. Once a Stateceased to be a Member of the League it
lost its legal interest in the administration of the Mandates ' and
the very reason for affording it a voice in the affairs of Mandated
territories would have disappeared. Such a State would then have
no right to participate in League debates or resdutions concerning
Mandates and would not be entitled to implead the Mandatory
before the Court in terms of the compulsory jurisdiction clause.
That State would stand in exactly the same position as a State

which, never having been a Member of the League and therefore

' Vide Chap.III. para41-44, 46-4supra.
a Ibid., paras. 46. 48.
Ibid.. para. 49.
' Exceptfora Mandatory inrespect ofioivnMandate.366 SOUTH WEST AFRICA
membership of the League, and that Germany would not then,
upon the League's refusal to entertain its complaint, have been
entitled to raise the same complaint in contentious proceedings
before the Court.

7. It is submitted that by application of the doctrine of in pari
materia support for the contention advanced hy Respondent is
found in the use of the expression "Member of the League of Na-
tions" in the provisions of al1the Mandate instruments.
This expression was used in al1 the B and C Mandates where
provision was made for rights of entry, movement and residence

to be enjoyed by missionaries who were nationals of "any State
Memberof theLeagueof Nations".'
Pursuant to paragraph 5 of Article 22 of the Covenant, al1the B
Mandates provided for equalopportunities for the trade and com-
merce of other "Members of the Leagzreof Nations" in the said
Mandated temtories. a
Somewhat similar provisions in favour of "Members of the
Leagueof Nations" were contained in some of the A Mandates.

In al1 the aforesaid provisions the expression "Member of the
League of Nations" could have been used in one sense only, namely
Members at the time when the intended privilege was sought to
be enjoyed, and not as including States which had ceased to be
Members of the League.
There is not one instance in which the said expression was used
in another sense in any other provision of the Mandate instruments.
When, therefore, the compulsory jurisdiction clause in each of
the Mandate instmments contained an identical expression, it

seems evident that, in the absence of a clear indication to the
contrary, it was intended to hear in that clause the same meaning
as in the other provisions of the Mandate instruments.
8. If, despite the considerationsmentioned in paragraphs 6 and 7
above there should still beuncertainty as to whether it was intended
that a State which hadceased to he a Member of the League should

be entitled to invoke the compulsory jurisdiction provision in the
Mandate instmments, then it is contended that, in confonnity
with the rule of strict interpretation as mentioned in paragraph 3 (c)
above, a conclusion that the Court has jurisdiction would not be
justified.
A contention to the effect that a State which is in fact no longer
a Member of the League, could nevertheless claim stili to be "an-
other Member of the League of Nations" within the meaning of

' Vidcc.g. British Mandate for Tanganyika8);BelgiaMandate for Ruanda-
Urundi (Art.8);Mandate for German Samoa (Art. ..;Mandate for South West
Africa(Art.5).(U.N. Doc.A@.)
' Videcg. BritisMandate forTogoland (Art6);British MandateforTangan-
yika (Art. 7); Belgian MandforRuanda-Urundi (Art. 7). (U.N. Dac. A17a.)
* Vida c.gMandate for Syria and the Lebanon (A11)Mandate forPalestine
(Art. r8). (U.N. Doc A/~o.) PRELIMINARY OBJECTIONS OF SOUTH AFRICA 367
Article 7of the Mandate Agreement, must, to Saythe least, rest on
a strained and unnatural interpretation of that Article. Such an

interpretation is in general to be avoided, but more particularly
soin the case of a compulsory jurisdiction clause, which requires
strict interpretation.
9. For the reasons aforestated, it is submitted that on a proper
constmction of Article 7 of the Mandate for South West Africa it
follows not only from the clear and unambiguous language of the
Article, but also by application of the accepted rules of interpre-
tation that a State is entitled to refer to the Court a dispute such

as mentioned in the said Article only if at the time when the pro-
visions of the Article are invoked that state is a Member of the
League of Nations.
IO. In theirtreatment ofthis aspect ofjurisdiction theApplicants:
(a) make the submission that as Members of the League, they
had a legal interest in the proper exercise of the Mandate;

(b) state that the question before the Court is whether their legal
interests have survived the dissolution of the League;
(c) submit that the phrase "'another Member of the League of
Nations' as used in Article 7 of the Mandate should be construed
as referringto formermembersof the League,as well as to members
of the United Nations". ' (Italics added.)

For the purposes of this Objection, Respondent does not dispute
that during the lifetime of the League, the Applicants, as Members
thereof, had certain legal interests in the proper exercise of the
Mandate.
For the reasons previously herein stated, Respondent submits
that the said interests did not survive the dissolution of the League:
once the Applicants' membership of the League terminated, they

lost their legal interests; and having lost their legal interests they
stood in the same position as States that had never been Members
of the League.
But in any event the decisive question relative to jurisdiction
is not whether Applicants' interests have survived the dissolution
of the League, but whether Applicants have the qualification
(membership of the League) which the parties to the Mandate
instrument (Le. the Council of the League and the Mandatory)
intended, accordirig to the express provisions of Article 7, that
prospective applicants should have in order to invoke the said
Article. Clearly the answer to the question is in the negative.
Applicants' submission as to the construction of the expression
"another hlember of the League of Nations" as used in Article 7
is untenable in law because:

'AVidcpara.qsupra.inls. go.368 SOUTH WEST AFRICA

(i) it requires the insertion in the Article of words not meant to
be there (Le. the words "former" as well as "and ?neinbersof the
United Nations"); and thereby, in effect, attributes to the Council
of the League and to the Mandatory in the year 1920 when the
Mandate terms were agreed upon, knowledge of the dissolution of
the League and the establishment of the United Xations which
came about some twenty-five years thereafter;

(ii) bysuch insertion of words the scope of the Article is altered
in order to make provision for something contrary to the clear
intention of the Council of the League and the Mandatory-i.e.
interference with Mandate administration by States not heing
Members of the League :

(iii) it would result in the subjection of the Mandatory to juris-
diction which the Mandatory had never consented to.
On the Applicants' approach to this matter, Article 7 must be
construed not as a provision in an instrument framed at the in-
ception of the League of Xations, when dissolution of the League
and creation of the United Nations were not in contemplation, but
as an instrument framed at the time of, and in contemplation of,
the dissolution of the League-which in fact it is not.

II. The Applicants' suhmissions on this aspect of jurisdiction

include a reference to the 1950 Advisory Opinion of the Court.
In the proceedings in Court in connection with the said Opinion,
Dr. Steyn, who appeared on behalf of Respondent, advanced the
contention that by reason of the dissolution of the League there
were no longer any States which could invoke Article 7 of the
Mandate. He appears to have regarded this contention as a legal
proposition which did not require further argument. The opinion
of the majority of the Judges with regard to the application of
Article 7 of the Mandate was expressed in the following passage of
the Opinion, uiz:

"According to Article 7 of the Mandate, disputes between the
mandatory States and another Member of the League of Nations
relating to the interpretation or the application of the provisionsof
the Mandate, if not settled by negotiation, should he submitted to
the Permanent Court of International Justice. Having regard to
Article37 of the Statute of the International Court of Justice, and
Article 80. paragraph 1,of the Charter, the Court is of opinion that
this clausein theMandateis still in forceandthat,therefore,the Union
ofSouthAfvica is undn an obligation toacceptthecompulsoryjuris-
diction of the Court accwding to thoseprovisions".'(Italics added.)

It is not clear what conclusion was intended to be conveyed by
the words italicized above.

' "lnfernaiional stafofSouth-Werl Africo. AdvisorOpinion: I.C.J. RePo*Is
1950ASwaçralso pointeout byRosenne. op. cit.282. PRELIMINARY OBJECTIOSS OF SOUTH AFRICA
Y59
As has been stated in paragraph I above, Respondent assumes
for the purposes of the argument in this Chapter that, contrary to
the contention advanced in Chapter III above, the Mandate, in-

cluding Article 7, still exists as a treaty or convention in force.
If the words in the Court's Opinion, as italicized above, wesc
intended to mean that Article 7 still stands as part of the Mandate
instrument and that the Mandatory would be obliged to accept the
jurisdiction of the Court according to the provisions of Article 7,
then, upon the assumption aforestated, the literal correctness of
what the Court stated cannot be denied. But in the application of
the provisions of Article 7 it must then follow that the ilfandatory is

obliged to accept the jurisdiction of the Court only at the instance
of Members of the League of Nations-and since the dissolution
of the League there are no longer States of that capacity.
If, on the other hand, the urords in question were intended to
convey an opinion that the Mandatory is obliged to accept the
jurisdiction of the Court at the instance of a State which is no
longer a Member of the League, theri it is submitted, with respect,
that no reason in law is advanced, or can be advanced, to arrive at

that conclusion.
Article 37 of the Statute of the Court reads as follows:
"Whenever a treaty or convention in force provides for seference
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".

This Article goes no further than to substitute the International .
Court of Justice for the Permanent Court of International Justice
in treaties and conventions containing a reference to the latter.
Its effect could merely be to read Article 7 of the Mandate as if
it provided as follows:

"The Mandatory agrees that, if any dispute whatever should
arise between the Mandatory and another Memberof 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 International Court of
Justice".

When Article 37 of the Statute of the Court was accepted by the
Signatories to the Charter of the United Nations in the year 1945,
the League of Nations was still in existence and it continued in
existence until April, 1946. Article 37 of the Statute does not in
terms, and was not intended to, amend treaties or conventions by
altering qualifications upon which the right to refer a dispute to
a tribunal or the Court was dependent--it merely substituted a
new forum for the adjudication of disputes. l

' "Ambnlielor case(jurirdirliJudgnzertO/July 1st1952: I.C.JReports 1952".
p. 39. VidealsoHudson.A.J.I.L.Vol.qj (1951)p. 15;Roîenne,op.cil.p.283.370 SOUTH WEST AFRlCA

Article 80, paragraph I. of the Charter, also accepted by the
Signatories to the Charter when the League of Nations was still in
existence, merely provides that nothing in Chapter XII of the
Charter (dealing with the International Trusteeship System)
"shall beconstrued in or of itself to alter in any manner the rights

whatsoever of any States or any peoples or the terms of existing
international instruments to which Members of the United Nations
may respectively be parties".
This Article dealstherefore with the construction and application
of Chapter XII of the Charter and does not, and was not intended
to, serve in the interpretation of other instruments. nor to effect
alterations in other instruments. '
To suggest that Article 80. paragraph I,of the Charter has any

bearing on the question whether States, not being Members of the
League of Nations, can exercise rights under Article 7 of the Man-
date, would be to apply Article 80. paragraph 1, for a purpose for
which it was not intended: and to conclude that by viftue of the
said paragraph, Article 7 of the Mandate is still in force (in the
sense that its provisions can be invoked by States not being Mem-
bers of the League of Nations) would run counter to the very object
embodied in Article 80, paragraph 1,of the Charter.

12. The Applicants further quote in support of their submissions,
certain statements extracted from the Separate Opinion of Judge
McNair. 2
Respondent cannot, with respect, accept the said statements as
being correct legal conclusions. and with regard thereto the fol-
lowing submissions are made:

(a) Judge McNair's statement :
"EueryState whichmas a Memberof the Leagueat ths lime of ifs
dissolution still has a legal interest in the proper exercise of the
Mandate". (Italics added).

Judge McNair does not appear to have taken into account the
very basis upon which States were accorded a legal interest in the
administration of the Mandate, namely membership of the League.
From this basis, as indicated in paragraph 5 above, it followed that
membership was a qualification for the continued existence of that
legal interest and in the result also a qualification for enforcement
of that interest through. the compulsory jurisdiction provision in

the Mandate instrument.
Al1States who were Members of the League at its dissolution,
like al1States that had ceased to be Memhers prior to dissolution,
lost the qualification for having a legal interest in the adminis-

' Vide Hudson. A.J.I.L., Vol. 45 (1951). pp14-15;Nisot. S.A.L.J., Vol. 68
(1951). pp. 278-79; Schwarrenbergop.cil. (3rded.). 1,p. 105.
' Applicants' Mcnioriolr. p. go.
19.50"p. 156.ianl rfatuO/Soulh-W1s1 Alrico.Advirory Opinion: I.C.J. Rcporlr PRELIMINARY OBJECTIOSS OF SOUTH AFRICA 37'
tration of the Mandate, and therewith their right to invoke Article 7
of the Mandate automatically clisappeared.

The leamed Judge did not state upon what reasoning a distinc-
tion could in law be drawn, as he apparently did, between League
Members which ceased to he such prior ta the dissolution of the
League and States which, though Members at the time of disso-
lution, ceased to be such by reason of dissolution.
There can in law be no distinction, because in whatever way
memhership terminated the result was the same, namely a loss of
the erstwhile legal interest and of the qualification provided for
in Article 7 of the Mandate.
(Thecomment in this paragraph applies also tothe view expressed
by Judge Read in his Separate Opinion namely:
"... the legal rights and interests of the Membersof the League in
respect of the Mandate survived with one important exception-in
the case of Membersthat did not become parties to the Statute of
this Court, their right to implead the Union before the Permanent
Court lapsed".)'

(b) Judge McNair's statement :
".. .I haveendeavouredto showthat theagreement between theMan-
datory and other Members 01the League embodredin the Mandate
is still 'in force'.The expression'Memberof the Leagueof Nations'
is descrifiliue,in my oflinzon,notconditional.anddoesnotmean'solong
as theLeagueexists and theyare Membersof it' ".' (Italics added).
Even if the view expressed in the first part of the above passage
is correct, namely, that the agreement between the Mandatory and
other Members of the League is still in force, it can only be in force
in accordance with its provisions, and its provisions accord the
benefit of Article 7 only to Members of the League of Nations.
As already shown, the Mandate instrument provided for the

exercise and enjoyment of rights hy Members of the League, but,
only aslong as they continued to be Members.
To Say that Article 7 of the Mandate must be so interpreted that
the expression "Member of the League of Nations" is descriptive and
not conditional, is in direct conflict with the intended meaning of
that expression not only in each and every one of the Mandate
instruments, but also in the whole Covenant. The absurd conse-
quences which would follow froni such an interpretation have heen
demonstrated in paragraphs 47 and 48 (c) of Chapter III above.
Moreover, as a description, the expression, in the context of
Article 7, would be meaningless unless qualified with reference to
a point of time, and the following comment by Manley O. Hudson
seems justified:
"Judge McNair expressed the view that this expression is
'descriptive,not conditional', and that it does not mean so longas

' Ibid.p.169.
Ibid.pp.r58-gg.372 SOUTH WEST AFRICA

the Leagueexistsand theyare Members of ilYet what States does
it describe? Does the phrase mean another State which was a
Member of the League of Nations on December 17, rgzo? If so.
Brazil would be included, though it withdrew from the League of
Nations in 1923,and Egypt and Mexicowould beexcluded because
they were admitted to the League of Xations at later dates. Does
League just prior to its dissolution? Judge McNair seems to have
been willingto giveit this import. Yet someStates in this category-
for example, Portugal, whose territory borders on South West
.4frica-may not now be 'States entitled to appear before the
Court'. In any event, the meaning is so imprecise that perhaps the
Court mighthave shown morehesitancein declaringthe replacement
to be made in the second paragraph of Article 7 of the Mandate". '

To this criticism can be added the comment, that if the descrip-
tion applies, as Judge McNair appears to have applied it, at the
date of dissolution of the League, there must be attributed to the
framers of the Mandate instrument a contemplation of dissolution
of the League and some special arrangement for the maintenance
of the Permanent Court of International Justice after the disso-
lution of the League or for the establishment of some other tribunal
in the place thereof. Altematively, the description would have had

to apply to al1 States that at some time or another were Members
of the League-and then it is not clear on what basis JudgeMcNair
excluded States that had ceased to be Members prior to disso-
lution. as he apparently did.
The Applicants' submission that "the basic principles of the
Mandate System and the means devised by the League of Nations
for their enforcement affirm the soundness of this [Judge McNair's]
reasoning", can only be based on a misconception. The basic
principle of the Mandate System was the administration ofMandated
territories by Mandatories who consented to administer the said
territories subject to explicit conditions and to certain agreed and
acceptedforms O/szcperuision.
Even if the functions of the Court under Article 7 of the Mandate
can be regarded as of a supervisory nature (contras. to Respondent's

contention in Chapter V hereafter), then in neither of the forms of
supervision devised by the League of Nations and agreed to by the
respective Mandatories was it intended that States which were not
Members of the League should have any participation: they were
denied any Say in the supervision exercised by the League itself
and in terms of the respective Mandate instruments they were not
included as States entitled to invoke the so-called supervision of
the Court.

13. In the premises aforestated Respondent respectfully submits
that, although certain views were expressed in the 1950 Advisory

' Applicants' MernoriaIrgo.51). 16. PRELIMINARY OBJECTIONS OF SOUTH AFRICA
373
Opinion with regard to the aspect of jurisdiction dealt with in this
Chapter, the matter requires reconsideration in full, inasmuch as:
(a) it was not formulated as a specific question for the Court's

consideration and was not fully dealt with in the argument presented
to the Court for the purposes of the said Opinion;
(b) the considerations dealt with in paragraphs 3 tog above may,
in the absence of a full argument, not have been present in the mind
of the Court;
(c) the view expressed in the Opinion of the Rfajority of the

Court is not clear, and it is not apparent from the Opinion what
relevance Article 80, paragraph I,of the Charte; had in the mind
of the Court;
(d) the views expressed by certain of the Judges in theirSeparate
Opinions are open to the criticisin advanced in paragraph 12 above;
and

(e) on this aspect also the950Opinion was critically received by
writers on International Law (as referred to in paragraphs II and rz
above).

14. The remainder of the Applicants' submissions on this aspect
of jurisdiction can be summarised as follows:
(a) each Member of the League of Nations had a legal interest in
the administration of the Mandate;

(b)such interest was to be exercised ultimately through invoking
the compulsory jurisdiction of the Court;
(c)judicial supervision is an indispensable feature of the Man-
date System since, if administrative supervision should fail, there
is no other method of enforcing the "sacred trust";

(d) if the Mandate is in force, judicial supervision must likewise
be in force, since the former is empty without the latter;
(e)unless the Applicants are entitled to institute a contentious
proceeding there is no method of obtaining an enforceable decision.
If that were so, judicial supervision over the Mandate would be
a nullity.
It is not disputed that each Member of the League of Nations
had certain legal interests (as dealt with in paragraph 4 above) in
the administration of the Mandate, and that in terms of Article 7

of the Mandate each such Member could invoke the compulsory
jurisdiction of the Court for the enforcement of such legal
interests.
The Applicants' further reasoning is. however, based on the
premise that "judicial supervision is an indispensable feature of the
Mandate System". Whether the function of the Court under the
compulsory jurisdiction clauses in the Mandates can be regarded as
of a supervisory nature will be dealt with in Chapter V hereafter.
But, even assnming for the purposes of the argument in thischapter374 SOUTH WEST AFRICA

that it could be so regarded, Respondent denies that it was an
indispensable feature of the Mandate System.
Article 22 of the Covenant made specific provision only for
supervision by the League of Nations, and even that form of
supervision was regarded by the Court in the 1950 Advisory
Opinion as an "important part", 'and therefore, by deduction from
that Opinion, not an indispensable feature of the Mandate System.
If judicial supervision had heen considered by the framers of the

Covenant to have been a very important, let alone indispensable,
feature of the Mandate System, one would have expected mention
thereof to bave been made in the Covenant.
In any event there is no reason why the Mandate, as an institu-
tion, cannot continue in existence without a form of judicial
supervision. In this respect Respondent respectfully draws atten-
tion to the fact that the Applicants seek to identify, in essence, the
Trusteeship System under the United Nations with the Mandate
System under the League of Nations; and it is interesting to note
that in some Trusteeship Agreements there is no provision for
compulsory jurisdiction of the Court.
So, for instance, despite the fact than an article on compulsory

jurisdiction similar to Article 7 of the South West Africa Mandate,
appeared in the former Japanese Mandate (Article 7). the United
States did not include an analogous article in the draft Trustee-
ship Agreement for that territory proposed by it to the Security
Council. Nor was this omission ever commented on during the
relevant debates in the Security Council. let alone rectified. '
Similarly, articles relating to the compulsory jurisdiction of the
Permanent Court of International Justice didappear in the Mandate
instruments for Nauru and New Guinea-but analogous articles
did not appear in the draft Trusteeship Agreements for these terri-
tories suhmitted to the General Assembly by Australia. Here also
the lenghy debates in the General Assembly do not reveal that
there were any proposals by Members of the United Nations-

including both Applicants-that this omission be rectified on the
ground that judicial supervision is indispensable. In this instance
the omission was more pertinently brought to the General Assem-
bly's attention by the fact that the other draft Trusteeship Agree-
ments which were simulraneously considered and approved, did
contain such articles.
In the light of these events it does not seem that "judicial super-
vision" was regarded by the Members of the United Nations as an
"indispensable feature" of the Trusteeship System.

' "lnicrnnlionol siaO/sSouth-W~rlA/ricn.Advisory Opinion: I.C.J. KefiovLs
1950".p. 136.
' Applicants' Mcmorials, pp. 104-105.
S.C., O.K., Second YSup. No. 8.
' S.C., O.K.. Second Yeav, Nos.zo,23.and331. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 375
If, contrary to the Applicants' contention, judicial supervision
is not an indispensable feature of the Mandate System, then, what-

ever its importance may be, the Applicants' premise would be
wrong and the whole argument formulated thereon would collapse.
If, however, the Applicants should be correct in their premise,
the further reasoning that, because judicial supervision is an in-
dispensable feature of the Mandate System, then, if the Mandate is
still in force, judicial supervision must likewise be in force, shows an
illogical approach to the whole enquiry before the Court. The very
fact that an indispensable feature of the System is no longer oper-
ative may well provide support for Respondent's argument as

contained in Chapter III above, that the Mandate has lapsed in
the sense there stated.
In any event, it does not follow, because judicial supervision
may be desirable, or even indispensable, that that consideration
confers jurisdiction on the Court.
Compulsory jurisdiction of the Court can only arise by consent
of the Mandatory and that consent was given only to the extent
and upon the terms stated in Article 7 of the Mandate.
To ask the Court to hold that compulsory jurisdiction exists,
not by virtue of the consent of the party impleaded before the

Court, but by virtue of a so-called necessity for such jurisdiction.
is fo demand the performance of a function beyond the competency
of the Court. l
15. In the premises it is subrnitted that the Court has no juris-
diction to hear, or adjudicate on. any of the matters raised by the
Applicants, in their Applications and Memurials inasmuch as the
Applicants, not being Members of the League of Nations, are not

entitled in law to invoke the provisions of Article7 of the Mandate
and have, accordingly. no locus standi before the Court.

' VideArt.36 of the Statute of the Court in terms whereof thejurisdictionof the
Court ,ave in far as it is founded on declarations in accordanc3642). Art.
comprisesonly cases which the parties refer to it and al1matten specially provided
forin the Charterorin treaties or conventions in force. SOUTH WEST AFRICA

CHAPTER V

THIRD OBJECTION

THE ALLEGEDCONFLICT OR DISAGREEMENIT S NO? A "DISPUTE"
AS 1s ENVISAGED IN ARTICLE 7 OF THE MANDATE.

1. Respondeiit's Third Objection, dealt with in this Chapter, is
that the alleged conflict or disagreement between Applicants and
Respondent is not a "dispute" as envisaged in Article 7 of the Man-
date.
Refore proceedingscould be instituted by a Member of the League
of Xations under the provisions of Article 7 of the Mandate, there
had to be, in terms of the said Article, a "dispute" between that
Member and the Mandatory relating to the interpretation or appli-
cation of the provisions of the Mandate.
With regard to the subject-matter of the alleged dispute, the

Applicants' Mernorialscontain the following statement:
"The Applicant alleges, and the Union has denied, that the
Union has violated and is violating Articlesz,4, 6 and 7 of the
Mandate. There is therefore a dispute concerningboth the inter-
pretation and the application of these Articles of the Mandate".'

For the reasons hereinafter set forth, Respondent contends that,
because of its subject-matter, the alieged conflict or disagreement
is not a "dispute" envisaged for adjudication by the Court in terms
of Article 7 of the Mandate-more particularly in that the said
conflict or disagreement does not affect any material interests of
the Applicant States or their nationals.
Itwill be assumed for the purposes of this Objection that, despite
the dissolution of the League, Applicants would still be entitled
to invoke the provisions of Article 7 in an appropriate case.

2. As a matter of logic, conflicts between parties are generally
justiciable only when their rights or legal interests are involved.
Courts of law are not concerned with conflicts, differences of
opinion or opposite views unconnected with the rights or legal in-
terests of the litigants. It is submitted that the position is the same
in International Law. International Courts exist for the adjudi-
cation and settlement of claims arising from legal rights or legal
interests and are not there for judicial expression on differences of
opinion or on conflicts of views between States, unrelated to their

legal rights or interests.
The Court, of course, has a discretion to respond to a request for
an advisory opinion on any iegal question, even though the question
may not involve legal rights of the organisation or body whicb asks
for the opinion; but that is so by virtue of specific provisions in the
' ApplicantsMeniariaip.gr. PRELlMiNARY OBJECTIONS OF SOUTH AFRICA
377
Charter of the United Nations (Article 96) and the Statute of the
Court (Article 65). Advisory opinions are an exceptional form of
process and the right to request such an opinion is limited to the

GeneralAssembly, the Security Council and other Organs of United
Nations and Specialised Agencies which may be authorised by the
General Assembly to make such a request. States have no such
right. The position with regard to advisory opinions was the same
in the Permanent Court of International Justice, also by virtue
of express provision in the Covenant of the League of Nations
(Article 14) and the relevant Rules of Court. l

3. There is no indication in Article 7 of the Mandate instrument,
or in any other part thereof, that the word "dispute" was intended
to convey a notion other than the generally accepted legal meaning ;
namely, a disagreement or conflict between the Mandatory and
another Member of the League conceming the legal rights or legal
interests of the latter in the provisions of the Mandate.
The words "any" and "whatever" flanking the word "dispute"
in the Article, cannot give to the latter word a meaning wider than

its ordinary connotation in law.
In the Mavrommatis Case the Permanent Court of International
Justice, in dealing with Article 26 of the Mandate for Palestine
(which clause is identical to Article 7 of the Mandate for South
West Africa), defined the word "dispute" as "a disagreement on a
oint of law or fact, a conflict of l-aai views or of interests between
~WO persons".
The Court was, however, careful in demonstrating that the Appfi-
cant had itself a rieht or leeal interest in the subiect-matter of the

dispute then beforethe CO&.
Thus said the Majority of the Court:
"It is an elementary principle of international law that a State is
entitled to protect its subjects, when injured by acts contrary to
international law committed by aiiother State, from whom,they
have been unable to obtain satisfaction through the ordinary
channels.By taking up the caseofoneofits subjectsand by resorting
to diplomatic action or international judicial proceedings on his
behalf,a Stateis in realily assertingils ownrightsits right toensure,
in thepersonofits subjects.res$ectfortherulesofintnnutional Law". '
(Italicsadded.)

In each of the five dissenting judgments in the said case, although
there is no direct statement to that effect, the reasoning of the
individual Judges indicate a contemplation of a legal right or
interest as a requirement for locus standi of the applicant, and
consequently for jurisdiction of the Court.

1 Asreferred to by Rosennop.il.. pp. 44r-43.
The Mavranmntis PalcrtincConcessionsP.C.I.J.Ser. A, No.2. 30thAugust.
,924.p.II.
Ibid., p12.378 SOUTH WEST AFRICA

Thus Lord Finlay stated:
"There can be no doubt as to the class of case which primarily,
at ail events, this article was intended to meet. There are a number
of provisions of the Mandate under which it is highly probable
that questions may arise between different Members of the League
of Nations. Article5 forbids placing any Palestine territory under
the control of any foreign Power. Some Member of the League
might allege that this provision had been violated 10 its preludsce.
Article g provides that the judicial system of Palestine shall assure
to forei ners as well as to natives a complete guarantee of their
nghts. &estions rnight arise at any time with another Member of
the League as to whether the judicial system is so constituted as to
afford this guarantee to its subjects.Arti18eforbids al1discrimina-
Nations, or against the goods originating in or destined for any
such State, and provides for freedom of transit across the mandated
area. Questions may anse between the Mandatory and another
Member of the League as to the observance of this article.. .
. . . Under al1 these heads there are endless possibilities of dispute
between the Mandatory and other Members of the League of
Nations, and it was highly necessary that a Tribunal should be
provided for the settlement of such disputes. Article 26 provides
the Tribunal for this purpose".' (Italics added.)

Judge Moore:
"The first condition-the existence of a dispute between the
Mandatory and another Member of the League-is not merely by
the filing of a suit by the one govemment against the other in this
Court. There must be a pre-existent difference certainly in the sense
and to the extent that the govemment which professesto havebeen
aggrievedshould havestateù ils claims and the grounds on which
they rest, and that the other govemment should have had an
opportunity to reply, and if it rejects the demands, to give its
reasons for so doing". (Italics added.)
Judge de Bustamante:
"It should also be noted that the Greek Govemment asks for
nothingfor ilsclf and that in the case reference is always made to
an indemnity to be paid, not to the Greek Govemment, but to the
beneficiary under the concessions". (Italics added.)

and :
"Whenever Great Britain as Mandatory performs in Palestine
under the Mandate acts of a general nature affecting the ubhc
interest, the Members of the League-from which she ,ho1 s the
Mandate-are entitled, provided that aU other conditions are
fumed, to have recourse to the Permanent Court. On the other
hand, when Great Britain takes action affecting private inter~ts
and in respect of individuals and private companies in her capacity
'Ibid.. pp42-43.
'Ibid.. 61.
Ibid., p. 77. PRELlMlNARY OBJECTIONS OF SOUTH AFRICA
379
as the Administration of Palestine, thereis no questionof a juridical
relationbetweentheMandatoryand theMembersof theLeaguefrom
which she holds the Mandate, but of legal relations between third
Parties who have nothing to do with the Mandate itself fromthe
standpoint of public law". '(Italics added.)
Judge Oda:

"Since the Mandate establishesa sspeciallegal relationshi$,it is
natnral that the League of Nations, which issued the Mandate,
should have rights of supervision as regards the Mandatory. Under
the Mandate. in addition to the direct supervision of the Council
of the League of Nations (Articles 24 and 25)provision is made for
indirect supervision by the Court; but the latter may only be
exercised at the request of a Member of the League of Nations
(Article26). It is therefore to be supposed that an application by
such a Membermust be made exclusively witha viewto the protec-
tion of general interests and that it is not admissible for a State
simply to substitute itself foraprivate person in order to assert his
private claims". ' (Italics added.)
Judge Pessôa:
"The Parties which may appear before the Court being States,
it cannot be cded upon to protecttherightsof individuals,but only
thoseofStates". (Italics added.)

The fact that Judges de Bustamante and Oda in their reasoning
made the obiter statement that Members of the League stand
in a speciai legai relationship to the Mandatory and can, therefore,
implead the Mandatory before the Court in matters of generai in-
terest or with regard to acts of a generai nature affecting the public
interest (a question to be deait with in paragraph 5 hereafter),
does not detract from the present argument. For they also recog-

nised the necessity of a legal right or interest (flowing, as they
considered, from the aforesaid special legal relationship) for locus
standi on the part of the applicant and, therefore, as a requirement
for jurisdiction.
4. Neither of the Applicants in the present case contend, nor
can they in the circumstances validly contend, that they as States
are, directly or through their subjects, affected by any of the acts

alleged to have been committed by Respondent in violation of the
provisions of the Mandate.
They both, however, found their cases as to locus standi on a
contention that they (as former Members of the League of Nations)
have a legal interest in the matters submitted for adjudication;
namely, "a legal interest in seeing to it through judicial process
that the sacred trust of civilization created by the Mandate is not
violated". 4

Ibid.p.81.
Ibid.p.88.
' Applicants' smorinls, p91-92,380 SOUTH WEST AFRICA

This contention can be sound only if, upon a proper construction
of Article 22 of the Covenant and the Mandate instrument, it must
be concluded:
(a) that the individual Members of the League were intended to
have a legal interest in the observance by the Mandatory of the

conditions imposed in the Mandate for the benefit of the inhabitants
of the Temtory, even in cases where the breach of these obligations
by the Mandatory did not affect the material interests of individual
League Members. either directly or through their nationals;
and,
(b) that, in view of the said legal interest each Member of the

League. if itconsidered that the Mandatory was not observing its
obligations towards the inhabitants. was entitled not only ta raise
the matter in the League for its consideration and attention, but
also ta institute with regard thereto contentious proceedings against
the Mandatory in terms of Article 7 of the Mandate.
Both these propositions require careful consideration.
The proposition under (a) above depends for its correctness to
a certain extent, though not entjrely. on the question whether the
League of Nations was a legal persona. If it was not a legal persona,
then the proposition in (a) above would appear to be correct, inas-
much as the obligations mentioned in the said paragraph could then
have been owed only to the Members of the League. '
There is, however, strong authority for the view that the League

of Nations was a legal 9ersona having, apart from its Members, a
legal capacity.
If this view is correct, then the obligations imposed for the benefit
of inhabitants would primarily, in any event, have been owed to
the League, on whose behalf the Mandatory undertook to exercise
the Mandate. Although the League Members would then be en-
titled, by virtue of their membership, to participate in the League's
supe~sion of the observance by the Mandatory of the aforesaid
obligations, they would individually vis-à-vis the Mandatory have
had no legal interest therein. Theoretically it is possible to conceive
that the League, in contracting with the Mandatory, acted not
only on its own behalf, but also on behalf of its Members and mem-

bers-to-be, in obtaining for them, by way of agency or by way of a
contract for the benefit of the Members as third parties, a legal
ihterest in the aforesaid obligations in addition to its own interest
therein. The foiiowing indications in Article 22 of the Covenant
and in the Mandate, however, seem to exclude that theory, viz:
(i) that the Mandate was ta be exercised on behalf of the League
only; and not on behalf of the League'and its Members;

' VideChap. III. para. rî (r.w.para. r6 (b) supra.
' Ibid.. para. 15.
Para.zofArt. 22of the Covenant andthe Preamhle to the Mandate PRELIMINARY OBJECTIONS OF SOUTH AFRICA 381

(ii) that the consent of the Council of the League was required
for modification of the terms of the Mandate; and not also the
consent of the Members of the League. '
Moreover, the whole conception of legal rights with regard to the
same obligations being vested both in the League as a legal persona,
as weii as in the individual Members of the League, seems unreal-

especially in view of the possible conflicts and anomalies which
could anse in the exercise of such nghts hy the League as well as
hy its individual Members, as indicated in paragraph 5 below.
The better view would seem to he that it was only the League,
as a legal persona, that acquired a legal interest in the obligations
imposed in the Mandate for the henefit of the inhabitants of the
temtory, Save insofar as the said obligations were intended to
operate for the benefit also of League Members or their nationals,
in which case they, too, would have had an interest in the obser-
vance of those obligations. a
If this view is correct then Applicants cannot be said to have a
legal interest in the alleged acts of violation of the Mandate com-
plained of by them, as such acts concem only the inhabitants and

do not affect the Applicants or their nationals.
But even if it is concluded that they have such a legal interest,
the further question raised in sub-paragraph (b) above remains
to be dealt with, namely, whether that legal right or interest was
intended to he enforceable by judicial process in terms of Article 7
of the Mandate.

5. In construing Article7 of the Mandate with regard to juris-
diction ratione materiae. the rules of interpretation mentioned in
Chapter IV, paragraph 3 supra with regard to jurisdiction ratione
personae are equaiiy applicable. An interpretation of Article 7 in
accordance with the said des leads to the conclusion that the said
Article was not intended to have the meaning and effect assigned
thereto hy the Applicants, namely, that the Article entitles the
Applicants to institute contentious proceedings with regard to
matters which concem only the inhabitants of the Mandated

Temtory and do not affect the material interests of the Applicants,
either directly or through their nationals. The reasons for this
contention are the following:
(a) According to paragraph i of Article 22 of the Covenant
"securities for the performance of" the "sacred trust of civilization"
were embodied in the Covenant.
Paragraph 2 of Article 22 stated the mandate conception. Para-
graphs 4,5 and 6 thereof then dealt with the Mandated temtones
in three categories, indicating in general terms the powers and
functions of the Mandatories in each of the three categories, thus:

Art.7 ofthe Mandate.
VidcChap. III. para. 17(b)supra. 382 SOUTH WEST AFRICA
(i)the so-called '4 Mandates in respect of territories formerly
belongingto the TurkishEmpire (Paragraph 4) :
"the rendering of administrative advice and assistance by a Man-
datory";

(ii)the so-calledB Mandates in respectof Central African tcrri-
tories,(Paragraph 5) :
The Mandatory to be "responsible for the administration of the
temtory" under certain conditions;
(iii)theso-calledC Mandatesin respectof South West Africa and
certainSouth PacificIslands (Paragraph 6):

to be "administered under the laws of the Mandatory as integral
portions of its territory" subject to the conditions mentioned in
respect of the B Mandates in the interests oftheindigenouspopula-
tion.
Paragraph 8 of Article22 provided that "The degree of authority,
control or administration to be exercised by the Mandatory shali,
if not previously agreed upon by the Members of the League, be
ex9licitlydefinedin each case by the Council of the League". (Italics

added.)
With regard to supervision of the Mandatories in the exercise of
their Mandates the only provisions contained in the Covenant were
the following:
"In every case of mandate, the Mandatory shail render to the
Councilan annual report in reference to the territory committed
to its charge";
(Paragraph 7 of Articlezz.)

and

"A permanent Commissionshaii be constituted to receive and
examine the annual reports of the Mandatons and to advise the
Councilon al1matters relating to the observanceof the mandates."
(Paragraph g of Article22.)

There was no mention, either in Article 22 or in any other part
of the Covenant, of a form of "judicial supervision", or of any form
of supervision other than that to be exercised by the League itself.
(b) Pursuant to Article 22 of the Covenant, the Council of the

'League, by the express provisions of the respective Mandate
instruments, explicitly defined the degree of authority, control or
administration to be exercised by each Mandatory.
Except in the case of the A Mandates, where the legislative and
administrative powers of the Mandatone differed from case to
case, al1 the Mandate instruments vested plenary powers of legis-
lation and administration in the respective Mandatories subject
only to certain particular obligations stipulated in the said instru-
ments. FRELIMINARY OBJECTIONS OF SOUTH AFRICA 383

Thus in the case of al1 B Mandates the Mandatones' powers of
legislation and administration were recorded in the following
terms :
"The Mandatory shall be responsiblefor the pence. orderand good
govmnmenl of the territory, and for the promotion to the utmost
of the material and moral well-beingand the social progress ofits
inhabitants". ' (Italicsadded.)

In the Mandate for Tanganyika the following sentence was
added:
"The Mandatory shall have full powers of legislation and ad-
ministration". '

The powers conferred in al1 the C Mandates were recorded as
follows (the Mandate for South West Africa being quoted as an
example) :

"The Mandatory shall have full power of administration and
legislation over the temtory subject to the present Mandate as
the laws of the Union of South Africa to the temtory, subject to
such local modificationsas circumstances may require." (Article 2.)

In the express terms of the Mandate instrument the Mandatory
for South West Afnca was therefore vested with complete powers
of govemment, i.e. both legislative and administrative, over the
Mandated Territory.
The only limitations or restrictions on, or directions in respect of,
snch powers could lie in the particular obligations mentioned in
the Mandate instrument. These were:

(i) Promotion to the utmost of the material and moral well-
being and the social progress of the inhabitants. (Article 2.)
(ii) Prohibition of the slave trade and forced labour. Contml of
traffic in arms. Prohibition of the suppiy of intoxicating spirits and
beverages to natives. (Article 3.)

(iii) Restriction upon military training of natives and the esta-
blishment of military and naval fortifications. (Article 4.)
(iv) Freedom of conscience and free exercise of al1 forms of
worship, and rights of certain missionaries in the temtones.
(Article 5.)
Other than the aforementioned obligations, the only duty im-

posed on the Mandatory was the rendering of annual reports to
the Council of the League. (Article 6.)
The aforesaid obligations and the duty to report were provided
for in the Mandate instrument pursuant to the provisions of the
Covenant.

' Vide Artzof the British Mandate for the Carne(U.N..Doc. A/p)
' Vide Art3of the British Mandate for Tangany(U.N.Doc. A/p)
Vide Annex B infra. PRELIMINARY OBJECTIOSS OF SOUTH AFRlCA 3%

that the Court was intended to act as an independent supervisory
authority at the instance of individual Member States.
The role played by the respective Organs of the League with
regard to supervision of Mandates is described as follows in a League
of Nations publication:

"During the discussion upon the Secretary-General's annual
report on the work ofthe League, it is permissibleforany delegation
to draw the attention of the Assembly to some point in the chapter
concerning mandatesand even to move that this chapter be referred
to one of the Assembly Committees where an exhaustive discussion
rnay ensue. . .The discussion in the Assembly usually leads to the
the discharge of the mandates, formulating some wish addressedct of
to the Council,the Mandates Commissionor the mandatory Powers,
etc.
Thus the role of the Assembly consists in the exerciseofa certain
moral and very general influence in thisdomain. Its function may
be said to be to maintain touch between public opinion and the
Council.
The right ta take decisions in regard10mandate questions belong.
however.totheCouncil.It exercisesits supervision with the aid of the
Permanent Mandates Commission,instituted by the Covenant itself.
The Covenant provides that this Commission is 'ta receive and
examine the annual reports of the Mandatones and to advise the
Councilonallmattersrelating ta theobservance ofthe mandates'. It is
thereforeessentially an advisory body-a body whose duty it is to
examine and report-designed ta assist the Council in carrying out
its task. Its work is preliminary in character. Constitutionally, it has,
nopower 10 takedecisionsbindingonthemandatoryPowersortoaddress
direct recommendationstothem.Its conclusions are not finaluntil they
have been approved by the Council". (Italicsadded.)

If, then, Article 7 were given such a wide construction as to
entitle any Member State, at its own instance, to cal1 in the aid of
the Court for the purpose of functioning as a supervisory authority,
the effect would have been to accord to such State individual powers
exceeding those of bath the Mandates Commission and the Assembly
of the League.
Whereas the Mandates Commission, a competent body of experts,
was not even entitled to address recommendations to a Mandatory,

any Member of the League would, under this construction, have
beeri entitled to demand from the Mandatory the adoption of a
suggested course of action, bound with the threat of judicial pro-
ceedings if the Mandatory shoultl refuse.
And similarly whereas the Assembly, composed of al1the Member
States, could take no decisions in regard to Mandate questions,
any Member of the League would have been entitled to decide, by
itself, upon measures to be adopted or not to be adopted by a
Mandatory and seek to enforce its owri decision by judicial process.

' Th MondnbsSyslzm-Or%;*-P~inriplcs-Applicapt.i 35.. 386 SOUTH WEST AFRlCA
But even more: if a question should have arisen as to the desir-
ability or othenvise of adopting a particular policy in Mandate
administration, it would have mattered little if such a policy were

considered unwise by the Mandates Commission, or discussed and
outvoted in the Assembly, or rejected by the Council-forasingle
Member holding isolated views could then still have ignored the
weighty body ofopinionin the League and the resolutions resuiting
therefrom, and have forced a Mandatory to adopt that particular
policy or account to the Court as the final supervisory body.
Furthermore, if the Mandatory, placed in the position aforestated
by a particular Member of the League which was not satisfied with
the League's views, should have ventured to negotiate with that
Member in order to avoid litigation, a result could have foilowed
with which the League as the supervisory body entirely disagreed.
And if there should have been more than one Member State de-
flecting from the body-of opinion in the.League; but which, inter
se, held different views as to various policies of administration or

as to the manner of application of a particular policy, how.would
the .Mandatory have negotiatedwith such States? Concessions
made tione Member could then still be rejected by the other, and
the Mandatory's willingness to effect changes and to negotiate for
a settlement would have been of no avail, resulting in its having to
defend judicial proceedings instituted by one or the other or per-
haps bath.
The very idea of such negotiation sounds unreal-and this would
,apply not only in such complicated circumstances as just discussed
but in any case involving negotiation with another State regarding
matters of infernal policy as applied in legislative acts and adminis-
trative measures.

(e) Insofar as the Mandatory's acts in the Mandated tenitory
could at al1 be questioned in the interest of the inhabitants, the
League of Nations would have been the only appropriate body to

consider and deal with matters of policy and political doctrines
applied in legislative acts and/or administrative measures.
The Applicants' contention necessarily means that Article 7 of
the Mandate subjected the Mqndatory to judicial enquiry concem-
ing its application of eachand every one of the provisions of the
Mandate, including Article 2 thereof-which provided that the
Mandatory "shail promote to the utmost the material and moral
well-being and the social progress of the inhabitants of the terri-
tory". This would then mean that the Court could have been
required to pronounceonall matters of policy affecting the material
and moral weU-being and the social progress of the inhabitants,
which would often have involved decisions of a purely political
nature.
The functions of Courts of Law do not normaily extend to the
realm of politics; and where a legislature or an administrative body PRELIMINARY OBJECTIONS OF SOUTH AFRICA 387

acts within the scope of powers conferred upon it, it is not the
function of Courts of Law to enquire into the policy or soundness
of its acts.
This general principle was recognised in the case of Jerusalem-
Jaffa DDislrictGovernorand another v. Murra and others, as being

applicable also in regard to the administration of the Mandated
Territory of Palestine under that Mandate. In regard to certain
mesures of expropriation applied by the Mandatory, the Privy
Council stated:
"Their Lordshipsagree that in such a case, and in the absence of
exceptionalcircumstances,justice requiresthat fairprovisionshall he
madeforcompensation.But thisdepends not uponanycivilright, but
(as the ChiefJustice said) upon principlesof sound legislation; and
it caiinot be the duty of the Coiirt to examine (at the instance of
any litigant) the legislativeand administrative acts of the Adminis-
tration, and toconsider in every casewhether they areinaccordance
with the view held by the Court as to the requirements of natural
justice".'

With regard to the functions of International Courts. Rosenne
States, with reference to decisions both of the Permanent Court
of International Justice and of the present Court:

"In the firstplace,it cannot toooften beemphasizedthat thecourt is
a CourtofJusticeand not ofethicsormoralsor ofpoliticalexpediency.
Its function is to 'declare the law'. Its pronouncements are solely
concemed with the law as it is, and 'it is not for the Court to pro-
nounce on the politicalor moral duties' whichits conclusionson the
law mayinvolve". a
Respondent is mindful of the fact that legal questions are often
encompassed or intertwined with political issues. and that the
jurisdiction of the Court, if otherulse established, would not for

that reason be ousted. It is, however, foreign to the essential nature
and purpose of the Court to entertain matters of a purely political
character.
Inthe premises it would indeedbe strange to find thatthe Council
of the League, which defined the terms of the Mandates, and the
respective Mandatories which accepted the Mandates, had intended
that the Court should be vested with powers to act at the instance
of any Member of the League, asan umpire in pronouncing upon
the soundness of the Mandatories' legislative acts and administra-
tive mesures involving the material and moral well-being and the

social progress of the inhabitants of the Mandated Territones. It
is submitted that it could not so have been intended.
Upon any contrary view it must follow that the Court would have
had to act as a tribunal for adjudication of conflicts, formulated

Jcrusobn-Jaffn DistricGovernov and nnolher vSuleimon Murra and others.
1926 A.C. 321,~328.
Rosenne. opci!.pp.62-63.388 SOUTH WEST AFRICA

upon differences in current politicai views, oncerning the adminis-
tration of a particular Mandated Territory.
Moreover, the decision of the Court relating to policy at a parti-
cular moment would have been binding on the Mandatory. which
thereaftermight have been unable to adapt its administration to
meet changed circumstances, or to adopt new policies advantageous

to the inhabitants; or the Mandatory might, at least, have been
unwiiling to do so for fear of being again impleaded for an alleged
violation of the provisions of the Mandate.
6. Each of the Mandate instruments contained provisions
apparently intended to operate also for the benefit of Member
States, for example, the "open door" provisions in the A and B
Mandates, and the provisions in al1 Mandates for the freedom of

movement of missionaries, nationals of Members of the League.
Each of the said instruments also contained other provisions,
primarily intended for the benefit ofthe inhabitants ofthe Mandated
Territory, the non-observance of which could, however, also have
affected Member States or their nationals, such as the provision
with regard to slave trade. For example, ifa Mandatory, in breach
of the last-mentioned provision, permitted slavery to be practised
and, in so doing, allowed the subjects of a neighbouring Member
State to be subjected thereto in the MandatedTerritory. itsbreach
could have affected that Member State.

It would be natural and in accordance with the recognised func-
tions of the Court, for a compulsory jurisdiction provision to be
inserted in the Mandate instruments for the protection of Member
States, insofar as they sould be affected directly or through their
subjects by a breach of the aforesaid provisions. And it is contended
that the compulsory jurisdiction clauses were inserted in the
Mandates for that very purpose.' There is. however, no justification
for giving Article 7of the Mandate the wide and peculiar construc-
tion contended for by the Applicants. Bearing in mind the recog-
nised functions of the Court, the language used in Article 7 does not
justify such a construction. If it had been the intention that each

and every Member should be appointed an individuai custodian
of the interests of the inhabitants of Mandated territories, and that
the Court shouid function as a supervisory body in respect of
Mandate administration, the Mandate instruments would surely
have provided so in clear terms.
Nor, in view of the implications discussed above, could such a
wide construction be justified with reference to the likely intention
of the Council of the League and the respective Mandatories.
In any event, inasmuch as the considerations mentioned above
must at least leave a grave doubt as to whether a conflict of the
--

' Videin this respect the statement by Lord Finlay quated3supra with
regardtothe clasofcase which. in hiç opinion. the compulsory jurisdiction clause
was intended to meet. PRELIMINARY OBJECTIONS OF SOUTH AFRlCA 389

nature now raised by the Applicants was intended to be included in
the provisions of Article 7 of the Mandate, it is respectfully sub-
mitted that, in observance of the nile which calls for astrict inter-
pretation of consents to jurisdiction, the Court should decline juris-
diction in the present case.
7. In support of their contention as to the construction of Ar-
ticle 7 of the Mandate. the Applicants rely, in the first place, on a
statement by Quincy Wright. '
The learned author first raises the question as follows, giving
neither an affirmative nor a negative answer thereto:

"Whether eve member ofthe League can beconsideredto have a
legalinterest i7 e observance of the mandate, entitling it to raise a
dispute and eventually to invoke the Court's jurisdiction even
not been decided. It might be argued that thets ointerest of everyas
member of the League in maintaining the complete integrity of the
Covenant and the mandate is sufhcient. Undoubtedly the Council
could ask the Court for an advisory opinion on the interpretation of
any clause in the mandates but the Court might, according to its
jurisprudence refuse to respond to the request".

Later thereappearsthe statement quoted by the Applicants:
"Every member of the League can regard its nghts as infnnged
by every violation of the mandatoryof itsdutiesnder the mandate,
even those primarily for the benefit of natives. and can make repre-
sentations which if not effective will precipitate a, dispute referable
to the Permanent Court of International Justice ifnegotiation fails
to settle it'.
This statement is, however, immediately followed by a qualifi-
cation in the following terms:
"The additional paragraph in the submission article,of the Tan-
ganyika mandate may seemto castdoubt on this conclusion". '

The author then deals with the particular provision in the Tan-
ganyika Mandate, and ends the whole enquiry as follows:
"Riit League members have a right that natives of the areas be
treated as prescribed by the mandates. thus the article would seem
broad enough to cover claims presented by League members in
behalf ofsuch natives". '

From the above it is clear that the author does not state his
views with conviction, nor in any avent, does he appear to have
given careful consideration, as has been done in paragraph 5
ahove. to the senous implications resulting from such a view. not
Applicants' Memoriap. 92
' Wright.opcil., r58.
Ibid.p.475.
' Ibid.p.476.3g0 SOUTH WEST AFRICA

only insofar as the Mandatory was concerned, but also with regard
to the functions of the Court and those of the League of Nations.
Other scholars who have written on the subject either hold the
view that the provision in question does not confer jurisdiction in a
matter in which the particular Member State has neither personally
nor through its subjects a material interest, or raise doubts there-
anent. l

8. In further support of their contention the Applicants refer to
the Mavrommatis Case and make the foiiowing statement:
"In the Maurommatis Caset,he Court took it for granted that
Article 26 of the Palestine Mandate (as stated above such Article is

identical to Article.7of'theMandate herein) embraced disputes per-
taining to the welfareof the inhabitants of the mandated temtory.
The issue discussedby the Court was whether 'disputes relating to
the interpretation or application of the Mandate' included claims
made on behalfofa national notan inhabitant ofthe territory".'
They then proceed to quote two passages in the dissenting
Opinions of Judges Oda and de Bustamante. It is submitted that
the Applicants' statement in this respect is wrong.

In the Mavrommatis Case the only point in issue was whether
the Applicant, the Government of the Greek Republic, could, by
virtue of Article 26 of the Mandate for Palestine, implead before
the Court the Mandatory in connection with claims made against
the latter by one Mavrommatis, a national of the Applicant State.
The majority of the Court held that the Applicant was so entitled.
A minority of five judges dissented.

Nowhere in the written Judgment of the Majority of the Court is
there the least indication of support for the Applicants' statement
that the Court took it for granted that the compulsory jurisdiction
clause embraced disputes pertaining to the welfare of the inhabi-
tants of the Mandated territory.
Indeed the contrary is suggested by the following passage from
the Judgment of the Majority of the Court:
. .
'.\lthuugli the pr&.isionsof the Mandate possessa specialcharac-
ter by rcaon of the fact that they have heen drawn up by the Coun-
cil of the Leaeucof Nations. neither of the Parties kas attrnioted to
argue that a-~ekber of se League of Nations cannot rehounce
rights whichhe possessesunder the terms ofthe Mandate".

Having so stated, the Court proceeded to deal with the matter
before it as if hlembers of the League could renounce the rights
conferred upon them.

' Vide Feinberg,N.La juridiclion de la Cour Permanrnlc de Juslice Inlernalionolc
Wessels, L.H. Dia Mondant uir Sttidwes-Alrika, (1938). pp.i i 1.~2Schwarren-
berger. op.cil. (3rd ed.), V1,pp. 104.107.08.
' Applicants' Mcmoriolr. p92.
a The Mourommntir Polcrlinc Conccrsions.P.C.I.J.Ser. A. No. z. 30thAugust.
1924. P. 30. PRELlMlNARY OBJECTIONS OF SOUTII AFRICA 39'
With regard to the aforementioned view of the Court, Schwarzen-

berger States as follows:
"This statement wonld also appear to cover the right to submit
disputes on the interpretation and application of such provisions to
the World Court. Thus, the World Court interpreted such rights
as strictlyindividualisticrights whichhad been granted to mernbers
in their owninterest and which,therefore,theywerefreetorenounce.
By implication, the Court rejected the view that these rights were
part of any internationalquasi-order, that is to Say. jus cogensin
accordance with the intentions ofthe parties to thegoverningtreaty
instruments in the interest, for instance, of the execution of an
international trust".'
In the premises it is submitted that the Applicants have no cause

for saying, and, in fact are wrong in saying. that the Court in the
Mavrommatis Case "took it for granted that Article 26 of the Pales-
tine Mandate ... embraced disputes pertaining to the welfare of the
inhabitants of the mandated territory".
Of the five dissenting Judges in the Mavrommatis Case only two,
namely Judge de Bustamante and Judge Oda expressed views in
those portions of their Separate Opinions, quoted in paragraph 3
above, which can be regarded as snpporting the contention of the
Applicants. These views were, however, entirely obiterdicta, stated
without motivation and apparently without consideration of the
matters mentioned in paragraph 4 above andthe implicationsdealt

with in paragraph 5 above.
Of the other three dissenting Judges, Lord Finlay indicated the
class of case which, in his opinion, the Article was, primarily at al1
events, intended to meet, and did not include therein actions
brought in the interests of the inhabitants; Judge Moore did not
touch upon the question, and Judge Pessôa's view that the Court
could not in terms of Article 26 of the Palestine Mandate be called
upon to protect.the rights of individuüls, but only those of States, a
does not support the Applicants' contention in the present case.

9. On this aspect of jurisdiction reference is also made by the
Applicants to the following passages extracted from the oral
argument addressed to the Court by Dr. Steyn, representative of
Respondent, in connection with the Advisory Opinion of 1950 on
the International status of South West Afnca, namely,

"It wasonlyin their capacity asMembersofthe Leaguethat third
States were competent to uphold the rights of the inhabitants of
maudated temtories or to claim rights for themselvesin those tem-
tories",
and

' Schwarzenbergerop.ci:(3rded.),Vol.1p. 104.
' Applicants' Memoriolp.92.
' Videextractfrom his Separate Opinion quotepara.3supra.3g2 SOUTH WEST AFRICA
"Nor have individual Membersof the United Nations any locus
standi in respect of the administration of South West Africa. They
couldhave had such a locusstandionly as Membersof the League".

It is upon the strength of these extracts that the Applicants
state "the Union has nonetheless conceded that Article 7, if in
force, entitled League members to institute proceedings to uphold
the rights of inhabitants of the Territory". 1
Upon a proper reading of the above passages in the context of
the whole of Dr. Steyn's argument, it is clear that the Applicants

are wrong in stating that Respondent thereby conceded that
League Members could institute proceedings in the Court to uphold
the rights of inhabitants of the Territory. Dr. Steyn propounded
the argument that as the "Mandate was not an agreement between
the Union Government and every individual Mernber of the League.
but between the Union Govemment and the League as a distinct
international entity", League Members were not separate parties
to the Mandate. 2
He then stated:

"As Membersof the Leaguethey al1had, of course,a certain locus
standi in regard to the Mandate, but when they ceased to be mem-
bers, as al1of them eventually did, upon dissolution of the League,
they lost alsothatlocusstandi". 2

There are also other passages to the same effect 3and a reference
to the League and the Mernbers of the League as "the only parties
with any locusstandi in regard to mandates". +
In using the words "locusstandi". insofar as Member States were

concerned, he was referring tothe nght of Memben to participate in
the proceedings of the League as the supervisory body inrespect
of Mandates, and not to their right to institute judicid proceeding.. -
under Article 7; this latter aspect he dealt with as follows:
"The Leaguehaving expired,there are no Membersof the League
who can claimrights in respectofthe administiation ofthe Territory.
And finally, there is no State legally competent to refer disputes
relating to the interpretationor the application of the provisionsof
the Mandate to the International CourtofJustice, the competenceto
do sohaving been limited by Article 7of the Mandate to Membersof
the League". 5

With regard to the rights of the peoples of South West Africa,
Dr. Steyn again rnentioned the rights of Mernber States to partici-
pate as Members in the League's supe~sion of the Mandates and

-- referred to Articles II (2) and 19 of the Covenant, under which
' Vide Applicants' M~nioriolr.p. 93.
"Inlernolional slolof Soulh-Wcrl Africa. PlcndingOral Arguments. Docu-
menis",p.275.
a Iboid..pp. 278 and 280.
' Ibid.p. 280.
' lbid.. p. 288. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 3?3

matters could be raised by Members for the consideration of the
Assembly and the Council.' Thereafter, he again referred to the
rights of Members under the compulsory jurisdiction clause. 2
It is against the above background that the passages quoted by

the Applicants should be read. When Dr. Steyn stated:
"The League itself was nolonger there to exercise its supervisory
functions,and third States whowereMembersof the League had lost
their locus standi when the League dissolveditself. It was only in
their capacity as Membersof the Leaguethat third States were com-
petent to uphold the rights of the inhabitants ofmandated territories
or to claimrights forthemselvesin thoseterritones",

he was not referring to judicial process but to the participation in

the exercise of supervisory functions in the League itself. The very
example mentioned by him in support of his argument, namely, the
refusal of the League to entertain the complaints of Germany made,
not to the Court, but to the League, makes this clear. And, when be
stated:

"Nor have individual Membersof the United Nations any locus
standi in respect of the administration of South West Africa. They
couldhave had such a locusstandi onlyas Membersofthe League", '

he again meant by "locus standi" as he had throughout his argu-
ment, the right of participation as Members of the League in the
League's supervisory functions, and not "locus standi" in judicial

proceedings before the Court. '

IO. The kind of disputes justiciable under Article 7 of the Man-
date was not a matter specifically raised in the questions submitted
to the Court for its Advisory Opinion in 1950. The matter was not
canvassed in argument and the Court did not express any opinion
thereon; Save that certain of the Judges in theirseparateopinions
used language conveying a notion of judicial supervision under

Article 7 of the Mandate Vhereby implying the exercise of rights
under Article 7 by Members of the League in the protection of
inhabitants of the Territory.
For the reasons advanced above, it is submitted that Member
States had no such right. Although the Court's function under

' Ibid..p.289.
' Ibid..p.zyo.
ibid.
a statement bv the Union's reoresentative intheFourthCommittee on 7thDecember.
1950, is not relevant to this aspect of jurisdiction. In any event it isinthe read
Context of the statement as a whole, from which will appear that the representative
was not çtatin~ an attitude of his Government-luhicas he stressed. was still to be
determined-f>ut was refening to one aspect of the' eKectof the rggoAdvixiry
Opinion of the Court.
Vide a.{.Sir Arnold McNair in"Intcrnali<mnl sletO/ South-WestAfricq.Ad?'-
soryopinion :I.C.J. Report1950".p. 158.
26394 SOUTH WEST AFRICA
Article 7 of the Mandate has colloquially been referred to as "judi-
cial supe~sion", it isnot an exact legal description of that function.
In this respect Respondent refers to the following comment by
Schwarzenberger who, in comparing the approach of the Court in
the 1950 Advisory Opinion with that which the Permanent Court
adopted in the Maurommalis Case (as dealt with in paragraph 8
above), States:

"While the International Court of Justice did not deal expressly
with this aspect of the matter, it is significant that it should have
chosen the right of members to submit such disputes to the World
Court as one of the two illustrations which were meant to prove the
essentially international character of the functions entmsted to the
mandatory. This change in emphasis becomes stiUmore apparent in
Judge McNair'sSeparate Opinion, which attributes to this ri ht, as
distinct from the administrative supervision of mandatories f y the
League Council, the character of judicial supervision of the manda-
functional capacity rather than in their own interests, could theya
renounce it? If so, does this not suggest that the term 'judicial
supervision' in juxtaposition with 'administrative supervision'is a
euphemism? If not. how can the two dictabe reconciledunless on the
assumption of a difference in approach to the nature of this inter-
national trust and on a basis of a more profound insight gained into
this phenornenonsince 1gz4?" '

II. In the premises aforestated it issubmitted that, inasmuch as
the Appiicants do not allege, and indeed, cannot validly allege, that
they as States, are affected either directly or indirectly through
their subjects by the aiieged violation of Articles z, 4, 6, and 7 of
the Mandate by Respondent, ihey have no locus standi and the
Court has accordingiy no jurisdiction to enquire into, and adjudi-
cate upon, the aileged acts of violation.

Schwarzenberger, ocil.(3rded.)Vol. 1,pio+ PRELIMINARY OBJECTIONS OF SOUTH AFRICA
395

CHAPTER VI

FOURTH OBJECTION

THEALLEGED CONFLICT OR DISAGREEMEN 1.5NOT A "DISPUTE"
WHICH "CANNOT BE SETTLED BY NEGOTIATION WlTHIN THE MEAN-
ING OF ARTICLE7 OF THE MANDATE.

I. Respondent deals in this Chapter with its Fourth Objection,
namely, that the alleged conflict or disagreement is not a "dispute"
which "cannot be settled by negotiation" in the sense of Arti7le
of the Mandate.
For the purposes of this Objecticn it willbe assumed that, despite
the dissolution of the League of Nations, the Applicants, as former
Members of the League, have retained the rights which by Arti7le

of the Mandate were conferred on them as Members; and it will
further be assumed that the subject-matter of the aüeged conflict
or disagreement concems the interpretation or application of the
provisions of the Mandate.
In order to invoke Article 7 the Applicants must then stiil
establish affirmatively that there is a "dispute" between them and
Respondent, and that that dispute "cannot be settled by nego-
tiation".

z. In their MernorialsApplicants formulate the alleged dispute
as "a disagreement on points of law and factasweil as a conflict
of legal views and interests", particulansed as follows:
(a) Applicants have maintained at ail times that the Mandate
is in force; Respondent that the Mandate has lapsed.

(b) Applicants have insisted that Respondent has violated the
Mandate; Respondent has denied doing so.
(c) Applicants have contended that the United Nations has
supervisory powers over Respondent as Mandatos.; Respondent
has repeatedly rejected this contention.

(d) Applicants have asserted a legal interest in, and the nght to
object to, the manner in whichRespondent administers theTemtor;
Respondent insists that it alone has a legal interest in what occurs
in the Temtory. 1
In support of their contention that a dispute exists between them
and Respondent concerning these matters, Applicants do not allege,

nor indeed can they allege. that there has at any time been an
exchange of views or statements of attitude directly between them
and Respondent through the ordinary and recognised diplomatic 3g6 SOUTH WEST AFRIC.4
channels. Instead, the Applicants rely on correspondence between
Respondent and the United Nations, and on debates in, and re-
solutions and reports of, various Organs and Agenciesof the United
Nations, concerning South West Africa and the administration

thereof, in which said correspondence and debates Respondent ex-
pressed views in conflict with those held by other Members of the
United Nations, including the Applicants. l
Likewise, in support of their contention that the alleged dispute
cannot be settled by negotiation, Applicants do not rely, nor in
fact can they rely, on negotiations conducted directly between them
and Respondent through diplomatic channels; because no such
negotiations were conducted. Instead, the Applicants refer in this
respect to certain abortive negotiations and attempts at negotiation
between, on the one hand the Ad Hoc Committee, the Good Offices
Committee, the Fourth Committee of the General Assembly and
the Committee on South West Africa, and, on the other hand,
Respondent.

The question arises whether from the events in the United
Nations and its Organs and Agencies, as narrated in Part B of
Chapter II of the Applicants' Memoriuls, and as amplified and/or
qualified by Respondent in Chapter II Part B above, an affirmative
conclusion can be drawn that there exists between the Applicants
and Respondent a "dispute", and that that dispute "cannot be
settled b. neg-tiation".
3. In the .Ifuuro~rri~iulJsu/islr~z onr-e\sro~Csals6ttirI'errnanent
Cuurt of International Iusticr cunsidered rhe essential reauircmt.nts

for jurisdiction under article 26 of the Mandate for ~aiéstine,the
provisions of which Article were identical to those of Article 7 of
the Mandate for South West Africa. The Majority of the Court in
that case defined a dispute as a "disagreement on a point of law or
fact, a conflict of legal views or of interests between two persons".
In applying that definition to the circumstances of the case, the
Majority held that a dispute between Mavrommatis andthe Manda-
tory, the subject-matter and particulars whereof had been stated
and dealt with in negotiations between the said parties, became a
dispute between a Member of the League and the Mandatory in
terms of the compulsory jurisdiction clause in the Mandate when
the Greek Government took up the case on behalf of Mavrommatis,

'who was a Greek subject.
This conclusion was based on the pnnciple of International Law
that a State is entitled to protect its subjects when injured by acts
contrary to International Law committed by another State, and
the view that, by taking up the case of its subject, the State is in
reality asserting its own rights.
' Ibid., Part(1)of Chap. III read with Part Bof Chap. II.
' Ibid.para. B. p. 93.
The Movrommtis Palcdinc Concessions. P.C.I.J., Ser. A2.N30th August,
~gzq.p. ir. PRELIMINARY OBJECTIOKS OF SOUTH AFRICA
397
In their Judgment the Majority of the Court expressed the fol-
lowing views:

"The Court realises to the fiil1the importance of the rule laying
down that only disputes which carinot be settled by negotiation
should be brought before it. It recognises, in fact, tbat before a
dispute can be made the subject of an action at law, ils subject-malter
shoz~ldhave been clearly defined by means of diplomatic negotiations.
Nevertheless, in applying this rule, the Court cannot disregard.
amongst other considerations, the vicws of the States concerned,
whoare in the best position to judge as to political reasonswhich may
prevent the settlement of a given dispiite by diplomatic negotiatioii.
When negotiations between the private person and the authorities
have already-as in the present case-defined al1the points at issue
between the two Gouernments.it would be incomuatible with the
flcsihility\r.liiislioiild chnr~~lerisi iiit<:rii:itiorinlrclati~iiihlo rr.-
qiiire ttic twu Governinciitj tu rcopeii:Idisciission ivhich kas in fncl
:ilrr.;iilytakcii plncc;tn<lon tvhictitlit:yrel'"(Italics ail<l~.il.)

The Judges who dissented from the conclusion that in that
particular case there was a dispute which could not be settled by
negotiation, expressed their own views as to the essential require-
ments before a conflict could be regarded aç a dispute and one
which could not be settled by negotiation in the sense of the com-
pulsory jurisdiction clause. Thus said Lord Finlay:

"Article 26 does not make it a condition to the jurisdiction of the
Court that there should have been negotiations with a view to
settling the dispute between the two Powers, but it does make it a
condition that the dispute is one which cannot be settled by nego-
tiation. Theremay besomeexceptionalcasesin whichil can bepredz-
caled that /rom sbecial circumstancesit is obvious that nerotiatzons
üould be u meretiastz I/rime, lut Ikeprz.ce1181s1iiridcha m\e. If ttie
Ço\fernmcnt of Grrccc liad really t;ikcn iip tlic .\la\'roniniatis inatrer
arid m;ide ita subiert of necotiatiun with Great I<ritain'\\,hocan sav
that a settlement 'wouldno? have becn arrived at?. ..
A State which has undertaken a Mandate under the League of
Nations had gratuitously taken upon itself a very arduous task and
full effectmust be given to the provisions of the Mandate for the
protection of the Mandatory from litigation on any lines other than
those laid down in the Mandate". (Italicsadded.) ,

And Ju~.e Moore:
'Tht:rt.riiiist3hprc-existenl <lifit:rcnsc.cert;iinly ttitsenseaiid
to the extent ttiat ttie government which 1,rolesjes to have been
aeeric\,ed should tiave sraiedilsclarms(2ndtheero«ndson nhichihev
"2, and that the olhergouernmentshouldhaveLad an opportunity io
reply, and if il rejects the demands, ta giue its reasons for sa doing.
Moreouer,ifit rejectssomeofthedemands,butadmits others,it is entitled
@ knowwhythecompromisethusoffevedis notacceptable.Theseproposi-
tions. tested by the ordinary conceptions of fair dealing as between

Ibid.. p.15.
Ibid., pp. 41-42.3g8 SOUTH WEST AFRICA
man and man, shoold seem to be self-evident; nor would it be diffi-
cult ta cite cases in which governments have abandoned their claims
on considering the arguments adduced on the other side.

The condition in question ['which cannot be settled by negotia-
tion'] does not mean that the difference must be of such a nature
that it is not susceptible of settlement by negotiation; nor does it
mean that resort to the Court is ~recluded so lonx as the alleaed
wrong-doer rnay profess a willingnèssto negotiate. The clause mÜst
rrceive a reasonable interpretatiori; but an interprrtation cannot hr
rpasonable which in effect nuIlifies tlic condition.
. . . . . . . . . ......,.......

Moreover.in decidine whether suchneeotiation has taken dace. the
Court isnotat liberty & interpret the word 'negotiation' asâ process
by which xovemments are enabled to evade their obligations. Al-
thoueh th& SuDerficiaiview mav to some extent Do~ui~rivDrevaii.
yet,;" the intemationa~s~here and in the sense of ;niernat;oRai iaw;
negolialion8s the legul alid orderly administralive process by which
goüernments,in the-enercireof théirunquestionablepowers,conduct
their relationsone with anotherand discuss, adjust and settle, lheir
differences".' (Italics added.)

Judge Pessôa :
"Negotiation consists of debate or discussion between the repre-
sentatives of rival interests, di-uçsion durina which each puts for-
ward his arguments and conteas those of hG opponent.

It must further be remarked that under Article 26 of the Mandate,
the mere fact that negotiations have taken place between the two
Govemments does not suffice ta bring a question within the juris-
diction of the Court:it is further indis~ensable that eilhertheconRict
/rom ils ter? naturecannot be sellled bj,negoliplionor elseihal nigo-
lidlionsshallhavefailed.The fact of requiring such negoriatioos is. as
1have alreadv stated. a tributr to the sovereientv of nations: the

principle is t6at al1 disputes shaü be settled 6eti;een the nations
whenemsuch solution isrecogriizedas impossible".erp(Italics added.)y

From the views expressed both by the Majority of the Court and
those Judges in the Minoritv referred ta above, the foiiowvinggeneral
propositions with regard tothe application of the compulsory juris-

diction clause inthe Mandate for Palestine, and for that matter in
aü the Mandates, would appear to be clear (the Judges merely

'Ibid., pp. 61-63.
Ibid., pgr.Vide also "InlerprctafiO/Pence Trenfics. Aduirory Opinion: I.C.J.
Reports1950". p. 74 and "Inferprdoliaof Psacc Treaties (secondphase). Aduiso*~
Opinia: I.C.J. Report1950".p. 221d srq.;Green. L. C. International Law Through
arst,1959:(I.C.J. Report1959"..pp.021,22.35. 6-3-61.dcl Case. Judgmcnt of Mavch PRELIMINARY OBJECTIONS OF SOUTH AFRICA 399

disagreeing as to application thereof to the circumstances of that
case), namely :
Beforea dispute can be justiciable;

(a) itssubject-matter must have been clearly defined; '
and
(b) the Mandatory must have been afforded an opportunity to
negotiate with the object of settling the dispute. And, except in the
rare type of case where from the very circumstances or the nature

of the dispute it is clear that the dispute cannot in fact be settled
by negotiation, either the Mandatory must have failed to avail
itself of an afforded opportunity to negotiate, or, the Mandatory
having so availed itself, the negotiations must have resulted in a
deadlock, before it can be said that the dispute is one which cannot
be settled by negotiation.
It is necessary to apply these propositions to the facts in the
present case. In so doing, it will be both logical and convenient to
deal separately with that part of the Applicants' case which com-

prises disagreements purely on points of law. as distinct from that
part which also involves a disagreement on facts.
4. The disagreements purely on points of law included in Appli-
cants' alleged dispute are those set forth in paragraph z, sub-para-
graphs (a), (c) and (d), above. Respondent does not dispute that
Applicants, in participating in debates in and resolutions of Organs
and Agencies of the United Nations, have contended that the
Mandate is in force. that the United Nations has supervisory
powers over Respondent as Mandatory and that they have a legal

interest in, and right to object to, the manner in which Respondent
administers the Temtory. Neither does Respondent dispute that
it has, in debates in the Organs and Agencies of the United Nations
and in correspondence with the United Nations, made clear its
stand in rejecting the aforesaid contentions. Respondent. however,
denies that the dispute concerning the aforesaid points of law is one
which cannot be settled by negotiation.
Applicants do not make the case, as indeed they cannot, that
the aforesaid matters of conflict are, either in their very nature or

by reason of special circumstances, impossible of settlement by
negotiation; on the contras> they base their case on alleged frus-
tration of efforts at negotiation on thepart of Organs of the United
Nations and Agencies of the United Nations appointed for the very
purpose of, inter alia, negotiating with Respondent in regard
thereto. Respondent, however, contends that it has not been affor-
ded a real opportunity of negotiating, as is contemplated in Article

' A simiiar view is expressed by Goodricb and Hambro who state-"dispute
canproperly be considered adisagreement ormatter at issue between two or
and counterslaimshsufhciently definite to be pasred upon aycourt or other claims
body set up for purposes of pacific settlement". (hdriand Hambro. op. cil.
(2nd ed.), 249).400 SOUTH WEST AFRICA

7 of the Mandate, with the object of settling the said dispute; and,
in that regard, Respondent makes the following submissions:
(a) Instead of raising the aforesaid matters directly with Respon-
dent, Applicants thought fit to join with other Members of the
United Nations in discussing the said matters in the United Nations

Organs and in appointing United Nations Agencies vested with
certain pourersto negotiate with Respondent thereanent.The terms
of reference of these Agencies were.ho~vever,of a restrictive nature
or were restrictively interpreted. Thus:
(i) The Ad Hoc Committee was appointed, inter alia, to confer
with Respondent on the "procedural measures necessary for the
implementation of the Advisory Opinion" of the Court. ' This was
modified in 1952 ,o conferring with Respondent "concerning means

of implementing the Advisory Opinion".
(ii) The terms of reference of the Committee on South West
Africa were similarly limited to the continuation of negotiations
"in order to implement fully the Advisorji Opinion".
(iii) The terms of reference of the Good OfficesCommittee were
originally of a less restrictive nature, which resulted in at least one

proposa1 acceptable to Respondent being formulated for consider-
ation by the General Assembly. But this proposa1was rejected by
the Assembly andthe terms of reference of the Committee were then
amended to finding a basis for an agreement which would "continue
to accord to South West Africa as a whole an international status
and which wonld be in conformity with the purposes and principles
of the United Nations", bearing in mind "the discussions at the
thirteenth session of the General Assembly". "ventually the Good
Offices Committee had to report that it "has not succeeded in
finding a basis for an Agreement under its terms of reference". '

(Italics added.)
By limiting the powers of these Agencies in the manner afore-
stated, the compass of their respective fields of negotiation was
restricted, and, correspondingly. the opportunity for negotiation
afforded to Respondent was limited to that extent. Thus, despite
Respondent's repeated objections the possibility of a settlement of
the dispute by negotiation was snbstantially reduced by the regular
process of restricting in advance the scope of the proffered "oppor-
tunity for negotiation".
Fnrthermore, the Ad Hoc Committee, while insisting that
Respondent should in principle accept United Nations supervision

' Vidc Chap. II, Part para.18suplo.
' Ibid.para.31.
Ibid., parqr. '
' Ibid.. pur60.
Vbid.. para.66.
' lbid.. par72.68. PRELIMIXARY OBJECTIONS OF SOUTH AFRICA 401
as a basis for negotiation, declined, despite repeated requests on

the part of Respondent. to show how machinery for such super-
vision could be devised without subjecting Respondent to obliga-
tions more onerous than those assumed under the Mandate. ' Nor
did the General Assembly suggest any solution to this difficulty.
In that very respect the Court in its 1950 Opinion had alsostated
that :
"The degreeof supervisionto bc cxcrcisedby the General Assem-
bly should not . ..cxceed that which aplied under the Mandates
Systcm. and should conform as far aspossibleto the procedurc fol-
lowed in this respect by the Councilof thc I.eagiicof Nations". '

In the negotiations which did take place Rèspondent repeatedly
drew attention to the broader membership and the fundamentally
different structure of the United Nations as compared with the
League of Nations, with special emphasis on the non-application

of the unanimity rule. (Vid paras. 27and 440f Chapter II, Part B,
above.) Respondent's view that United Nations supervision would
extend its obligations, was reinforced by the form of supervision
actually devised which, if Respondent had acquiesced therein.
would have made its task more onerous. (Vide e.g. those mentioned
in paragraph 44 of Chapter II, Part B, above.)
In effect, therefore, the insistence upon pnor acceptance by
Respondent of United Nations supervision meant insistence
upon the acceptance of more onerous obligations as a prerequisite

for negotiations.
(b) The Ad Hoc Committee and the Committee on South West
Africa, in addition to being entrusted with the function of negotia-
tion, were vested with powers, the exercise of which was in direct
conflict with their office of negotiatioii.
Thus: (i) Part of the functions of the Ad Hoc Committee was to
examine reports and petitions with regard to South West Africa

and report thereon to the General Assembly.
(ii) A similar task was entmsted to the Committee on South
M'est Africa. " In 1957 this Committee's functions were extended
to embrace also the study of legal action against Respondent.
Respondent had protested against the conferment on, and
exercise of, these powers and functions by Agencies constituted to
negotiate for a settlement of a dispute, the very nature of which

involved a manifest denial by Respondent of the right of super-
vision which the United Nations sought to exercise through these
Agencies..--
' Ibid.. par40.
* "f?rfcrnnfionol sfoO/S~ufh-Werf .4/rierr, AdviroOpinion:1.C.J.I3ePoporls
1950".p. i38.
Vide Chap.11, ParB. paras.18and 3r supra.
' IbiU., para. 41.
Vbid., para.59.
"bbid., paras19, 4and 741b).402 SOUTH WEST AFRICA

Despite Respondent's protestations, these Agencies, while in-
viting Respondent to negotiate, were at the same time acting, in
the exercise of those conferred powers, as if Respondent was obliged
to suhmit to United Nations supervision. It is submitted that there-
by a circumstance was created which contributed to the frustration
of the very object of the negotiations, namely, a settlement of the
dispute.

Moreover, these Agencies were created and controlled by the
Fourth Committee of the General Assembly. which established
their terms of reference and passed judgment on the results of the
negotiations. But it was also to the Fonrth Committee that these
Agencies had to render an account of their divergent functions. the
ensuing debates on which were invariably marred by the intrusion
of disturbing features (e.g.oral hearings of petitioners) and proce-

dures which gave risetoan atmosphere which was not conducive to
fruitful results in negotiation. Respondent on many occasions drew
attention to this unsatisfactory situation. '
(c) Throughout the whole period of so-called negotiations there
was, furthermore, the repeated request of the General Assembly

that Respondent should submit South West Africa to United
Nations Trusteeship. Indeed, the annually repeated resolutions
urging Respondent to conclude a trusteeship agreement, a and
even censuring Respondent for not yet having done so, suggested
that the majority of Members of the United Nations would not be
satisfied with any settlement of the dispute which would not result
in the Territo~y being brought within the United Nations Trustee-

ship System-and that so despite the Court's Opinion that Respon-
dent was not obliged to doso.
In fact the most recent General Assembly resolution offering
negotiations implied United Nations Trusteeship as the only
arrangement which the majority of the General Assembly would
accept.
The Applicants in particular have shown by their actions, in

sponsoring and supporting relevant resolutions of the General
Assembly. that they were insistent on having South West Africa
placed under United Nations Trusteeship. Liberia's attitude is
further confirmed by the statement of the Liberian representative
referred to at page 82 of Applicants' Memovials."
The insistence on the extreme of a trusteeship agreement must
have had the effect of conditioning the Organs and Agencies of the
United Nations andits individual Memhers in a direction of thought

which militated against the settlement of the dispute on any other
basis.

Ibid.. para30.y(b) and 67.
Vbid...para.io.enlio. paras2.8.io.20.jr.53 and 70.
' Ibid.. para74.
Ibid.. par79. PRELlMlNARY OBJECTIONS OF SOUTH AFRICA
403
(d) Respondent for its part had, as the record of events in
Chapter II,Part B. above shows, repeatedly expressed its desire to
find a solution to the disagreement which would be acceptable to
al1parties concemed.

With the object of finding such a solution Respondent had over
the years made concrete proposals involving concessions from its
side and expressed its willingness to examine others. l The majority
in the United Nations had, however, acted in a manner calculated
to frustrate negotiations by-restricting the terms of reference of
the Agencies appointed to negotiate; conferring supervisory and
other extraneous functions on the negotiating agencies; allowing
negotiations to be disturbed by accusatory debates and procedures;
requiring prior acceptance of United Nations supervision by Re-
spondent: and persistently urging the extreme end result namely

United Nations Tmsteeship.
Respondent nevertheless recorded, and as recently as July, 1960,
reiterated its readiness to enter into discussions with an appropriate
United Nations ad hoc body with terms of reference which would
allow full discussion on, and exploration of, al1possibilities.
This offer by Respondent elicited no reaction on the part of the
United Nations or the Applicants, and has therefore never been
probed.

5. Respondent. therefore, denies the implication conveyed in the
Applicants' Memorials that it was responsible for frustration of
negotiations attempted on the part of the Organs and Agencies of
the United Nations. On the contrary, Respondent respectfully
submits that, in the premises aforestated, it was not afforded a real
and genuine opportunity to negotiate with the object of settling
the dispute in question. Respondent accordingly denies that the
alleged dispute in respect of the matters stated in paragraph 2 (a),
(c) and (d) above is one which cannot be settled by negotiation, or
that any conclusion to that effect can be drawn from the narrative

of events contained in the Memorials of the Applicants as qualified
and amplified in Chapter II, Part B .bove.
6. With regard to the disagreement or conflict on the one point
which is not purely a question of law, namely, the alleged violation
by Respondent of the Mandate, the position is somewhat different.
Again, in this respect, Applicants did not avail themselves of
the ordinary diplomatic channels to bring complaints and raise

disputes concerning Respondent's administration of South West
Africa. but participated with other Members of the United Nations
in debates and resolutions concerning such administration. Partici-
pation therein was not confined to States which as Members of the

' Ibid.. parazq ereg.36 and73.
Ibid., paras.7and 78.
' MernoriaIr.p93.
Ibid.. pp. 43-87.4O4 SOUTH WEST AIZHICA
League of Nations had, prior to its dissolution, a legal interest in
the administration of the Territory, but was shared in also by
States which had never been Members of the League, and had at no

time had any such interest.
Respondent, on the other hand, had from the inception of the
United Nations and throughout, adopted and maintained the
attitude that the United Nations had no supervisory functions or
powers in relation to the administration of theTerritory and that
Respondent was not obliged to account to the United Nations for
its administration. In strict conformity with its attitude, Respondent
throughout refused to submit reports on the basis of accountability
to the United Nations. It had undertaken in 1946to submit reports
for information purposes only, but this undertaking was withdrawn
when the conditions under which it had been given were not ob-
served by the United Nations in dealing with the report for the
year 1946. '
Also in conformity with its stated attitudeRespondent throughout

refused to deal in the United Nations with complaints regarding,
and criticism of, its administration of the Territory. On a number of
occasions Respondent. without prejudice to the legal position
adopted by it, participated in debates concerning its administration,
but only for the stated purpose ofdemonstrating that thecomplaints
and criticism were based on unreliable information and without a
proper conception of conditions prevailing in the Territory. '
Respondent, however, throughout denied that it had violated the
provisions of the Mandate and repeatedly stated that, in conformity
with its expressed intention, the Territory was being administered
in the spirit of the Mandate.
In view of Respondent's attitude as to non-accountability to the
United Nations, and as no arrangement had been come to in terms

whereof Respondent was obliged to recognise supervisory authority
as being vested in any Organ or Agency of the United Nations,
Respondent did not state its case in opposition to the allegations
concerning the administration of the Territory; nor have there
been any negotiations whatsoever concerning the complaints
involved in such allegations. In the premises, it is submitted that
whatever differences may, from dehates in the United Nations,
appear to exist between Respondent and the Members of the
United Nations, including Applicants, as to certain aspects of the
administration of the Territory. those differences are not so defined
as to constitute a dispute cognisable by the Court in terms of
Article 7 of the Mandate.
In any event. even if the said differences can at al1be regarded

as constituting a dispute in terms of Article 7,it cannot be said that
that dispute is one which cannot be settled by negotiation. The
.-
' VideChap. IIPart B.para.irsupra.
Ibid.. paraIo,46 and 76. SOUTH WEST AFRICA

SUBMISSIONS

For al1or any of the reasons set out in these Preliminary Objec-
tions, the Government of the Republicof South Africa submits that
the Governments of Ethiopia and Liberia have no locusstandi in
these contentious proceedings and that the Hononrable Court has
no jurisdiction to hear, or adjudicate upthe questions of law

and fact raised in the Applications and Memoriuls; and prays
that the Court may adjudge and determine accordingly.

(Signed)J. P.VERLORE VAN THEMAAT.
Agent of the Government of the Republic
of South Africa. PRELIMINARY OBJECTIONS OF SOUTH AFRICA
4O7

Annexes to the Preliminary Objectilsedby the Governmentof the
Repuhlicof SouthAfrica

AnnexA

ARTICLE 22 OF THE COVENANTOF THE LEAGUE
OF NATIONS

[See AfrnexA to the Memoria1;200,siipraj

AnnexB

MANDATE FORGERMAN SOUTH WEST AFRICA
[See Annex B tatheMernorialp.201.siipra] SOUTH WEST AFRICA

Annex C

LIST OF THE RELEVANT DOCUMENTATION

1.League of Nations

A. Minutes of theCouncil,sess. VIII, 1920.pp. 183, 185. 187.
B. RecokdsoftheAssembly, sess. 1,1920,p. 320.
C. O@cialJournal, 1920 (No. 8). p. 87: 1921, pp. 84-94, 1124.25;
1923, P. 300: 1924,P. 1287; 1926, pp. 1407, 1422, 1533; 1927,
pp. 316-17,348, 1120;1929,p. 1467; 1930, pp. 838-39.

D. O@cialJournal,SpecialSupplementNo. 194,1946.pp. 28.32-34.
43. 47. 58-59. 76. 78-79,250, 278-79.281.
E. Minutes oi the Permanent Mandates Commission, sess. 1, rozr.
- pp. 5.21 ;II, 1922,pp. 91-92: III, 1923.p. 215; VI, 1~2~;~.'60;
VIII, 1926,p. ZOO;XXVI, 1934.p. 50; XXVII, 1935,pp. 153,
161, 229; XXIX, 1936,p. 137; XXXI. 1937.p. 192.
F. OTHER.
I. TheCouenantof the Leagueof Nations.
2. TheMandatesSystem-Origin-Principles-Afip (lie-cation

neva, 1945).pp. 34, 35 et seq.
3. The LeagueHands Over (Geneva, 1946,) pp. 61, 63.
II. United Nations

A. Documents O/ the United Nations Conferenceon Internutional
Organization.San Francisco, 1945, (LondonlNew York: United
Nations information Organizations, 1945). Vi>l. 1. p. 630;
Vol. 5, pp. 300, 315-16; Vol. IO,p. 434.
B. UNITEDNATIONS PREPARATOR CYOMMISSIO1 N9,46.
1. Cornmittee4, SumrnaryRecords,pp. 39-40.
2. Committee7, Summary Records,pp. 2-3, 10-11.

3. Journal. p. 131.
4. Doc. PC/EX/II~/R~V. 1, 12th November, 1945, pp. 55-56,
108.11, 114.
5. Doc. PC/zo, ~3rdDecember, 1945.pp. 49, 118.
C. GENERAL ASSEMBLY.
1. Resolutions.

XI (1). 9th February. 1946,in U.N. Doc.A/64.p. 13.
XIV (I), 12th February, 1946, in U.N. Doc. A/64,
PP. 35-36.
65 (1). 14th December, 1946,in U.N. Doc.A/64/Add.
1,pp. 123-24.
141(II), 1st November, 1947, in U.N. Doc. A!grg,
PP. 47-48. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 4O9

227 (III), ' 26th November, 1948, in U.N. Doc. A/81o,
PP.89-91.
337 (IV), 6th Recember, 1949, in U.N. Doc. A/IZ~I,
P. 44.
449 A(V), 13th December, 1950. in C.A., O.R., Fifth
Sess., Sup. No. 20 (A/1775),pp. 55-56.
19th January, 1952,inC.A., O.R.,SirthSess.,
570 B(V1). Sup. No. 20 (A/~II~), p. 64.
749 A(VII1). 28th November, 1953, in C.A., O.R., Eighth
Sess., Sufi No. 17(A/2630),pp. 26-27.

749B(VII1). 28th November, 1953. in U.N. Doc. A/263o,
pp. 27-28.
852 (IX). 23rd November, 1954, in G.A.,O.R., Ninlh
Sess.,Sup. No. zr(A/z8go), p. 29.
904 (IX), ~3rd November, 1954, in U.N. Doc.A/289o,
PP.55-56.
940 (X), 3rd December,1955,inG.A.,O.R.,TmthSess..
Sue. No. 1g(A/3116).p. 23.
942 (X), 3rd December, 1955, in U.N. Doc. A/3116,
P. 24.

IO55(XI), Sess., Sue. No. 17(A/3572).pp. 28-29.uenth

1059(XI). 26th Febmary, 1957, in U.N. Doc. A/3572.
P.30.
1060 (XI), 26th Febmary, 1957, in U.N. Doc. A/3572.
P. 30.
1141(XII), 25th October. 1957. in G.A., O.R.. Twelfth
Sess.. Sup. No. 18(A/3805),pp. 24-25.
1142(XII), 25th October. 1957. in U.N. Doc. A/3805,
P. 25.
1143 (XII), 25th October. 19~~,in U.N. Doc. A/3805,
pp. 25-26.
1243(XIII), 3otti October, 1958, in G.A., O.R., Thiriecnth
Sess.,Sue. No. 18(A/409o),p. 30.
1246 (XIII). 30th October. 1958, in U.N. Doc. A/4090,

P. 31.
1359 (XIV). 17th November, 1959. in G.A., O.R., Four-
tcenthSess..Sup. No. 16(A/4354),p. 28.
1360(XIV). 17th Novernber, 1959.in U.N. Doc.A/4354.
pp. 28-29.
1361(XIV). 17th November, 1959, in U.N. Doc. A/4354.
P. 29.
1565(XV), 18th Decernber, 1960,inG:A.,O.R., Fiflcenth
Sess., Su$. No. 16(A/4684),pp. 31-32.

2. PlenaryMeetings.
G.A., O.R., First Sess., Iiirst Part. 11th Plenary Meeting, pp.
161-79;12th Plenary Meeting,pp. 179-87;14th Plenary Meet-

27 SOUTH WEST AFRICA

ing, pp.200-28;15th Plenary Meeting,pp.228-40;16th Plenary
Meeting. pp. 241.57.
G.A., O.R., SecondSess., Vol. 1, 105th Plenary Meeting, pp.
591-651.
G.A., O.R., Third Sess., 164th Plenary Meeting. pp. 577-92.

G.A., O.R., Fourth Sess., 269th Plenary Meeting, pp. 523-37.
G.A., O.R., Fifth Sess.,322nd Plenary Meeting,pp. 627-32.

3. FourthCommittee Meetings.
G.A., O.R., Firsl Sess., First Part, FourthComm.,3rd Meeting,
pp. 7-11.
G.A., O.R., First Sess., Second Part, Fourth Comm., Part 1.
19th Meeting, pp. 96-107.
G.A., O.R., First Sess., Second Part, Fourth Comm., Part II,
Fifth Meeting, pp. 26-32.

G.A..O.R.,ThirdSess., FourthComm.,76th Meeting,pp.287-97;
77th Meeting,pp.297-306;78th Meeting,pp.307.20; 81st Meet-
ing. PP.340-54.
G.A., O.R., Fourlh Sess., Fourth Comm., 128th Meeting, pp.
199-208.
G.A., O.R.,Fiflh Sess.,FourthComm.,196th Meeting,pp.359-67
G.A., O.R.,Sixth Sess., FourthComm.,204thMeeting, pp.17-19.
G.A., O.R., Eighth Sess., Fourth Comm., 363rd Meeting, pp.
301-08.

G.A.,O.R.,NinlhSess., FourthComm.,407th Meeting,pp.61-70.
G.A., O.R., TenlhSess., FourthComm.,491st Meeting, pp. 129-
36: 500th Meeting, pp. 179-83.
G.A., O.R., Twelflh Sess., Fourth Comm., 659th Meeting, pp.
35-40,
G.A., O.R., Thirteenth Sess., Fourth Comm., 747th Meeting,
PP.23-25.
G.A., O.R., FourteenthSess., Fourth Comm., 883rd Meeting,
pp. 5-7; 914th Meeting, pp. 161-66;915th Meeting, pp. 167-73;
916th Meeting, pp. 175-79; 918th Meeting, pp. 185d)o; 924th
Meeting,pp. 221-22; g31st Meeting,pp. 249-58;g3zn Meeting,
PP 259-63.
G.A., O.R., Fifteenth Sess., Fourth Comm., 1049th Meeting,
PP 293-99.

4. Ad Hoc CommitteeonSouthWestAfrica.

U.N. Dac. A/AC.qg/SR. 2, (1951).
U.N. Doc.A/AC.qg/SR. 3, (1951).
U.N. Dac.AfAC.49/SR. 4. (1951).
U.N. Doc.A/AC.4gfSR. 7, (1951).

U.N. Doc.A/AC.qg/SR. II, (1951).
U.N. Dac.A/I~oI, in C.A., O.R., Sixth Sess., Annexes (Agenda
item 38), pp.2-11. PRELIMINARY OBJECTIONS OF SOUTH AFRICA
411
U.N. Doc.A/2261,in G.A.,O.R., Eighth Sess., Annexes (Agenda
item 36), pp. 1-29.
U.N. Doc.A/247j, in G.A.,O.R., Eighth Sess., Annezes (Agenda
item 36), pp. 31-48.

j. Committeeon South West Africa.
G.A.,O.R., Ninth Sess., Sup. No. 14(A/2666).

G.A., O.R., Tenth Sess., Sup. No. 1z(A/zg13).
C.A., O.R., Elmenth Sess., Sufi. No. 1z(A/3151).
C.A., O.R., Fifteenth Sess., Sup. No. 12(A/4464).

6. GoodOfices Committeeon South West Africa.
U.N. Doc. A/3goo, in G.A., O.R., Thirteenth Sess., Annexes
(Agendaitem 39). pp. 2-10.

U.N. Doc. A/4224, in G.A., O.R., Fourteenth Sess., Annexes
(Agendaitem 38). pp. 1-5.
7. Special Committeeon Palestine.

G.A., O.R., SecondSess., Sup. No. II, Vol. I(A/364).
G.A., O.R., Second Sess., Sup. No. II, Vol. II(A/364/Add. 1).
8. Misceilaneous.

U.N. Doc.A/123, in C.A., O.R., First Sess.,SecondPart, Fourth
.Comm., Part 1, pp. 199.235.
U.N. Doc.A/C.4/41,in G.A.,O.R.,First Sess.,SecondPart, Fourth
Comm.,Part 1, pp. 235.44
U.N. Doc. A/334, in G.A., O.R., Second Sess., Fourth Comm.,
PP. '34-36.
U.N. Doc. A/334/Add. I. in C.A., O.R., Second Sess., Fourth
Comm., pp. 136-38.

U.N. Doc. A/422, in G.A., O.R., SecolzdSess.,Plenary Meetings,
Vol. II, pp. 1537-43.
U.N. Doc. A/gzg, in G.A., O.R., Fourth Sess., Fourth Comrn.,
Annex, pp. 7-12.
U.N. Doc. A/C.4/19o, in G.A., O.R., Sixth Sess., Annexes
(Agendaitem 38), p. 17.

D. SECURITY COUNCIL.
S.C., O.R., Second Year, No. 20, 113th Meeting, pp. 407-15;
No. 23, 116th Meeting, pp. 463-85; NO. 25. 118th Meeting,
pp. 513.16; No. 30, 1z3rd Meeting, pp. 615-39; No. 31, 124th
Meeting, pp. 641-80.

S.C., O.R., Second Year, Sup. No. 8, pp. 69-74.
S.C., O.R., Third Year, Nos.36-51,271st Meeting,pp. 154-72.

E. TRUSTEESHIC POUNCIL.
G.A., O.R., Second Sess., Sup. No. IO (A/qoz/Rev. 1).
C.A., O.R., Third Sess., Snp. No. 4 (A/603).
U.N. Doc. T/175, 3rd June. 1948.41z SOUTH WEST AFRICA
F. OTHER.
1. The Charterof the United Nations.

2. The Statute of the Intemational Courtof Justice.
3. U.N. Doc. A/7o, October, 1946(Terms of Leagueof Nations
Mandates).
4. Ewerynwn's United Nations, Sixth Edition (New York:
United Nations Officeof Public Information, 1959),pp. 4-6.

In. Union of South Africa and Republic of South Afnca

I.Union O/ South Africa, Parliamentary Debates, Senate, Vol. 15
(1956),Cols.3631-32.
2. The Republic of South Africa Constitution Act, No. 32 of 1961,
Sections 1,3 and 121.

IV. United States of Amenca
Papers Relating to the Foreign Relationsof the United States: The
Paris PeaceConference,1919, 13 Vols. (Washington: United States
Govemment Printing Office.1942-47).Vol. III, pp. 741-42, 769-70.
785-86,788.795.96, 799-802;Vol. V, p. 508.

V. Books and Pamphlets
I. Baker, R. S. Woodrow Wilson and World Setfiement, 3 Vols.
(New York: Doubleday, Page and Co., 1922-23). Vol. III,
pp. 108-10,126-29.
2. Beer, G. L. African Questions al theParis PeaceConference,ed.
by L. H. Gray (New York: Macmillan, 1923),pp. 431, 443.

3. Bentwich, N. The Mandates System (London: Longmans,
Green and Co., 1930).pp. 4-5.
q.Chowdhuri, R. N. International Mandates and Trusteeship
Systems (The Hague: Martinus Nijhoff, 1955).pp. 16-22.
5. Feinberg, N. La Juridiction de laCour Permanentede Justice
Internationale dans leSystémedes Mandats (Paris: Rousseau,
1930).PP. 203-04.
6. Ifran$oiS, J. P. A. Grandlijnen van het Volkeurecltt, Second
Edition (Zwolle: N.V. Uitc-vers MiiW. E. -. Tieenk Willink,
1957).PP.233, 349.
7. Goodrich,L. M. and Hambro, E. Charterof the United Nations,
Second Edition (London: Stevens and Sons, 1949), pp. 3-18,
249,
8. Green, L. C. International Law Through the Cases, Second
Edition (London: Stevens and Sons, 1959). pp. 329 et seq.,
790 et seq.
9. Hall, H. D. Mandates, Dependenciesand Trusteeship (London:
Stevens and Sons, 1948), pp. 17 et seq., 97-100, 102-05. 140,
174. 209, 272.73. 285-86,288-89.
IO. Hobson,J. A.TowardsInternational Government(London,1915). PRELlhlINARY OBJECTIONS OF SOUTH AFRICA
4I3
II. Kennedy, W. P. M.and Schlosberg,H. J. TheLaw andCuslai
of theSouthAfrican Constitution(London: Humphrey Milford,
'935). PP. 514-15.
12. Lauterpacht, H. The Dcvelopmentof InternationalLaw by the
InternationalCourt (London: Stevens and Sons, 1958), p. 91.
13. Lloyd George, D. The Truth about the PeaceTreaties, 2 Vols.
(London: Victor Gollancz. 1938), Vol. 1, pp. 114-23,530; Vol.
II, p. 766.
14. Logan, R. W. The African Mandates in World Politics
(Washington: The Public AffairsPress, 1948).pp. r-z.

15. Margalith, A. M. The International Mandates(Baltimore:
Johns' Hopkins Press, 1930). pl'. 33-34.
16. McNair, A. D. The Law of Treaties-British Practice and
Opinions (Oxford: The Clarendon Press, 19381, pp. 185,
389-90.405.433.
17. Miller,D. H. The Draftingof the Couenant,z Vols. (NewYork:
G. P. Putnam's Sons, 1928). Vol. 1. pp. 186, 190; Vol. II,
pp. 213-28. 273, 283, 285, 306. 313. 323-24,355.
18. Mohr, E. G. Die Frage der Souveranitüt in den MandrUs-
gebieten(Borna-Leipzig: Universitatsverlag von Robert Noske,
1928).P. 4.
19. Oppnheim. L. International Law: A ~reatise, Vol. 1, Eighth
Edition. ed. hy H. Lauterpacht (London: Longmans,. Green
and Co.. 1955)~PP. 384. 944.

20. Rosenne. S. The International Court of Justice-An Essay in
Political and Legal Theory (Leyden: A. W. Sijthoff's Uit-
geversmaatschappij, 1957)~pp. 62-63, 260, 282. 318-20,441-43.
21. Schneider, W. Dus V6lkerrechtlicheMandat (Stuttgart: Aus-
land und Heimat Verlags-Aktiengesellschaft, 1926),p. 14.
22. Schwanenberger, G. I+tternational Law, Third Edition
(London: Stevens and Sons, 1957), Vol.1, pp. 101-02,104-05,
107-08,138, 176.
23. Smuts, J. C. The Leugueof Nations: A PraclicalSuggestion
(London: Hodder and Stoughton, 1918), pp. 12, 15.

24. au/ Palüstina (Vienna: Leuschner and Lubensky, 1928),ndung

PP. 8-9.
25. Starke,. J. G. An Introduction to International Law, Third
Edition (London: Buttenvorth and Co., 1954),pp. 57,324.
26. Temperley, H. W. V. (ed.) A History of thePeaceConferenceof
Paris, 6 Vols. (London: Hodder and Stoughton, 1920-24).
Vol.1,p. 195; Vol.II, pp. 233-34;Vol.III, p. 95; Vol.VI, p. 502.
27. Toussaint, C. E. The TrusteeshifiSystem of the United Nations
(London: Stevens and Sons, 1956). pp. 5-9.
28. Townsend, M. E. The Rise and Fa11of Gmany's Colonial
Empi*e (New York: Macmillan, 1930).pp. 363-69,377-78.

29. Verdross, A. Die Verfassung der V6lkerreckgm.nschaft
(Wien und Berlin: Verlag von Jullus Springer, 1926),p. 51.4I4 SOUTH WEST AFRICA
30. Walters, F. P. A History of the League of Nations, z Vols.
(London: Oxford University Press, 1952). Vol. 1, pp. 64-65.

31. hage: Martinus Nijhoff, 1938),pp. 111-12.rika ('+Graven-

32. Wright, Q. Mandates Under the League of Nations (Chicago:
University of Chicago Press, 1g3o),pp. 3. 15-23.55. 64. 87-89,
114. 128. 158. 196-97, 199-200,319-39, 366, 457, 460, 475-76.
493-95.536-37.

VI. Articles
I. Anonymous. "New Guinea-Most Backward Trust Area",
United Nations Review, Vol. 1, No. 3 (September, 1954),
pp. 31-36; at p. 31.

2. Anonymous. "A Formidable Task in New Guinea: Peaceful
Penetration Continued in Primitive Tmst Territory", United
Nations Reuiew, Vol. 2, No. 3 (September, 1955), pp. 33-44;
at P. 34.
3. Fitzmaurice, G. "The Law and Procedure of the International
Court of Justice 1951-4: Treaty Interpretation and other
Treaty Points", The British Year Book of International Law,
Vol. XXXIII (1957),pp. 203-93; at pp. 203-04212.

4. Furukaki, P.T. "Nature juridique des mandats internationaux
de la Sociétédes Nations", Bibliothtique Universelleet Revue
de Genéve (July-December, 1926), pp. 381-90; at p. 385.
5. Hall, H. D. "The Tmsteesh'lpSystem", The British Year Book
ofInternationalLaw, Vol.XXIV (1947).pp. 33-71; at pp. 44-46.
6. Hudson, M.O. "The Twenty-ninth Year of the World Court",
The Ammcan Journal of International Law, Vol. 45 (January,
1951). pp. 1-36; at pp. 13-16.

7. Jennings, R. Y. "The International Court's Advisory Opinion
on the voting procedure on questions concerning South West
Africa", Transactions of the Grotius Society, Vol. 42 (1956),
PP. 85-97; at p. 92.
8. Keesing's Contemporary Archives, Vol. VII' (1948-1950). al
P. 9354.
9. Korowicz, M. St. "The Problem of the International Person-
ality of Individuals", The Americnn journal of International
Law, Vol. 50 (1956),pp. 533-62; at pp. 536, 561.

IO. McNair, A. D. "Mandates", The Cambridge Law Journal, Vol.
III, No.2 (1928).pp. 149-60;at p. 157.
II. Nisot, J. "The Advisory Opinion of the International Court of
Justice on the International Status of South West Africa",
TheSouth African Law Journal, Vol.68, Part 3 (August, 1951),
pp. 274-85; at pp. 278-81.
12. Potter, P. B. "0ri.p of the System of Mandates under Jhe
League of Nations '.The American Political Science Revcew,
Vol. XVI, No. 4 (November, 1922). pp. 563-83. PRELIhlINARY OBJECTIONS OF SOUTH AFRICA 4'5

13. Rappard, W. E. "The Mandates and the International Tmstee-
ship Systems", Varia Politica (Zurich: Editions Poligraphiques
S.A., 1953).pp 181-go;at pp. 182. 184.
14. Rolin, H. "Le Système des Mandats Coloniaux", Revue de
Droit International et de Législation ComparéeV , ol. XLVII
(~gzo),No. 1,pp. 329-63;at PP. 356-57.

15. Van Asbeck, F. M. "International Law and Colonial Adminis-
tration", Transactions ofthe Grotius Society, Vol. 39 (1953).
PP.5-37; at P. 14.
16. Williams, J. F. "The Status of the League of Nations in Inter-
national Law", Znternatiaai Law Association, Report of the
34thCwlference (1926),pp. 675-95;at pp. 688-89.
17. Wright, Q. "Treaties Conferring Rights in Mandated Terri-
tories", The American Journalof International Law, Vol. 18
(October, 1924).pp. 786-87.

(The Publications enumerated under III above were filed with
the Registrar of the Court in accordance with Article 43 of the Rules
of Court. The other documentation was available in the Library of the
Court. For convenience. photostatic extracts from League of Nations
documents, United Nations documents and Articles quoted were also
filed.) SOUTH WEST AFRICA

TABLE OF CASES CITED

1. PERMANEN COURT OF ~NTERNATIONAL JUSTICE
I. EasternCareliaCase,P.C.I.J., Ser.B, No. 5, ~3rdJuly, 1923.
2. The Maurommatis PalestineConcessions,P.C.I.J., Ser. A. No. 2,
30th August, 1924,pp. 11-12.15-19.30, 41-43,61-63,77, 81-82.
86, 88, 91.

3. Caseconccrningthe Factoryat Chorzdw,P.C.I.J., Ser. A, No. 9,
26th July, 1927.p. 32.
4. Interpretationof the Conventionof 1919 concerningEmployment
of Wmen during the NigW, P.C.I.J., Ser. A/B, Fasc . o. 50,
15th November, 1932.pp. 377,380-81, 383.
5. Phosphatesin Morocco,P.C.I.J., Ser. A/B, Fasc. No. 74, 14th
June. 1938.pp. 23-24.

II. INTERNATIONC AOLURT OF JUSTICE
I. "Reparation for injuries suffered in the smice of the United
Nations,Advisory Opinion:I.C.J. Reports1949,p. 174", at p.179.
2. "Interpretation of Peace Treaties, Advisory Opinion: I.C.1.
Reports1950, p.65". at p. 74.

3. "International status of South-West Africa, Pleadings, Orai
Argumcnki,Documents",pp. 122-23,275, 278, 280, 288-90.
4. "International status of South-West Africa, Aduismy Opinion:
I.C.]. Reports1950, p.IZY, at pp. 132-34.136-38.r40.145-46,
154-62,164-73.186, 191.
5. "InterpretationofPeaceTreaties(secondphase),AdvisoryOpinion :
I.C.1. Reports1950, P.221".

6. "I.C.J. Reports1952.p.s28".at p. 39.gmenl of July rst, 1952:

7. "South-West Africa-Voting Procedure, AduisoryOpinion of
June 7th. 1955: I.C.J. Reports1955,p.67". at pp. 75.95, 100-or.
8. "InterhandelCase,Judgnzentof Marchz~sl, 1959: I.C.]. Reports
1959,p. 6". at pp. 21-22,35, 60-61.

III. OTHER

I. Hamlyn & Co.u. Wood6. Co. (1891) 2 Q.B.488.at pp.491,494.
2. Jerusaimi-Jaffa DistrictGovernorand anothn v.Suleiman Murra
and others,1926A.C. 321, at p. 328.
3. Rcx v.Blm, 1939A.D. 188. at pp. 202-03.

4. Luxor, Lld. u. Cooper(1941 (1) A.E.R. 33). at pp. 52-53.