OBSERVATIONS OF ETHIOPIA AND LIBERIA 4I7
4. OBSERVATIONSOF THE GOVERNMENTS
OF ETHIOPIA AND LIBERIA
1
RESUMG OF THE PROCEEDINGS
A. On November 4,1960, the Governments of Ethiopia and
Liberia (hereinafter sometimesreferred to as "Applicants") filed
Applications, with the Court to institute proceedings against the
Republic of South Africa (hereinafter sometimes referred to as
"Respondent") for causes stated therein.
B. Pursuant to Orders of the Court, dated January 13,1961,
fixing April15,1961 as the time within which the Memorials were
to be filed, Applicants fded their Memorials on Apri14,1961.
The Memorials are addressed to the dispute between Applicants.
on the one hand, and Respondent. on the other, relating to the
interpretationand application of the Mandate for South West
Africa (hereinafter sometimes referred to as the "Mandate"). The
subject of the dispute, as set forth in the Memorials. concerns the
continued existence of the Mandate and the duties and performance
of Respondent, as Mandatory, thereunder. Applicantsinsist tbat
the Mandate is still in force; that Respondent continues to have
duties thereunder;that the United Nations is the proper super-
visory organ to which annual reports and petitions should be
submitted by Respondent; that consent of the United Nations is
a legal prerequisite and con-tiprecedent to modification of the
terms of the Mandate; and that Respondent has violated and is
violating the terms of Arti22eof the Covenant of the League of
Nations and Article2, 4,6,and 7 of the Mandate. The Memorials
further aver that Respondent disputes, and has disputed the above
cuntentions, and that such dispute has not been and cannot be
settled by negotiation.
C. Pursuant to Order of the Court dated January 13,1961,
Respondent was allowed until December 15, 1961within which to
file its Counter-Memorial. On November 30, 1961, Respondent
fded Preliminary Objections which aver that Applicants "have no
locusstandiin these contentious proceedings and that the Honour-
able Court has no juridictionto hear. or adjudicate upon, the
questions of law and fact raised iAfiplicatioand Memorials."
D. These Written Observations and Submissions are respect-
fuliy submitted by Applicants to the Court, punuant to Order of
the Court dated December 5, 1961 .pplicants submit herein, as
they have submitted in their Memorials, that in so far as they were
Members of the League of Nations at the time of the League's
dissolution, are Members of the United Nations and have a dispute
with Respondent concerning the interpretation and application418 SOUTH WEST AFRlCA
of the Mandate, and inasmuch as such dispute has not been and
cannot be settled by negotiation, the Court has jurisdiction pursuant
to Article 7 of the Mandate and Article 37 of the Statute of the
International Court of Justice, to hear and adjudicate tquestions
of law and fact raised in the Applications and Memorials. OBSERVATIOSS OF ETHIOPIA AND LIBERIA
4I9
II
INTRODUCTION
Respondent has included in its Preliminary Objections much
introductory and. other material which Respondent apparently
considers relevant to the question of jurisdiction, which is the
subject-matter of its Preliminary Objections.
Applicants' Observations andSubmissions below deal separately
with each of the four Objections to jurisdiction which Respon-
dent lodges, namely: (1) the Mandate as an intemational treaty
or convention is no longer in force: (2) Applicants do not qualify as
"another Member of the League of Nations" within the meaning
of Article 7 of the Mandate; (3)there is no dispute between Appli-
cants and Respondent conceming the interpretation and applica-
tion of the Mandate within the meaning of Article 7; and (4) if
such a dispute does exist, Respondent denies that it cannot he
settled by negotiation.
Before proceeding to an analysis of each of the four Objections,
however, Applicants respectfully cali to the attention of the Court
some general considerations which appear in Respondent's intro-
ductory matenal, and which mark the approach of Respondent to
the case as a whole.
A. SUGGESTED DEPARTURE FROM THE 1950 ADVISORY OPINION
Respondent concedes that in certain major respects its Objec-
tions cal1for a reversa1 by the Court of its 1950 Advisory Opinion,
International status of South-West Africa. 1 Two of Respondent's
Objections were unanimously rejected by the Court in the Advisory
Opinion of 1950 The Court held that the Mandate, including
Article 7, has not lapsed. 8 The Court furthermore held that it
remains open for States to invoke Article 7 in accordance with its
terms. Respondent's remaining Objections herein were not in
issue before the Court in 1950, and accordingly were not then
considered.
Respondent contends, however, that even though it made oral
and written submissions to the Court during the Advisory proceed-
ings, nevertheless those proceedings were marred by "lack of
presentation, or of adequate presentation, to the Court of material
information of vital importance, factual and otherwise." '
Respondent's PreliminnObjectionp.214.
Intevnotionslalur oSouth-West Africa, Advisory Opinion: I.C.J. Reports
1950.p. 128at 143.
Vd. at 138.
Respondent'Psreliminary Objectionzrj.420 SOUTH WEST AFRICA
Respondent, however, advances no valid reason why the Court
should depart from its pnor unanimous dngs. Indeed. as is more
fuliy shown below, Respondent's basic contention is the same as
that submitted to the Court in 1950, and it suffers from the same
fundamentai defect: the inherently iliogical and inequitable thesis
that the Mandate lapsed with the dissolution of the League of
Nations. relieving Respondent of its obligations under the Mandate
instrument. yet at the same time leaving Respondent with allits
richts and powers over the mandated temtorv, free of inter-
national acc&untability.
ChaDter IV of A~nlicants' hf~m~i'akianalvzes the leeal conse-
tquenc& of antecedérk Advisory Opinions. iothing in The ~rcli-
minary Objections refutes Applicants' submission based on that
analysis. For the convenience of the Court, the relevant excerpt
from the Uefier Silesia case.' quoted in the Memorials, is repeated
here. The Court said:
"As regards Article 5 of the Polish Law of July 14th. 1920.
Poland claims ta have acquired,free from al1charges, the property
mentioned in Article 256 of the Treaty of Versailles.
"Thisquestionhas alreadybcenconsidercdbythecouriinitsAdvisory
Opinion No. 6 [GermanSettlers in Poland.] ... Nothing hasbccn
advancedin thecourseoftheFesenl proceedingscalculutcdto allerthe
Court'sopiniononthispoint." (Italics added.)'
Applicants' submission is likewise repeated for the Court's
convenience :
"Judicial and scholarly precedent and the viewsand practicesof
States confirm and support the practice of the Permanent Court
in U44er Silesia wherein the Permanent Court stated that it had
alreaxy mled upon an issuein an advisory proceeding and then
reafirmed that mlin. when the same issuearose in the conteiitious
proceeding.
"It is respectfully submitted that in the present case,the Court
shouldsimilarly reaffirmthe advisory opinion it delivered in Inter-
nalionalstalusofSouthWestAfrica." s
B. SUGGESTED DISTINCTION BETWEEN THE MANDATE AS A REAL OR
OBJECTIVE INSTITUTION AND THE MANDATE AS A TREATY OR
CONVENTION
Respondent contends that there is a distinction between the
Mandate as a "real" or objective institution and the Mandate as
a treaty or convention. Respondent argues that the Mandate as
'Case Concerning Gcrmon Inkrrsts in Poiishpw Silesin.P.C.I.J.Ser. A.
No. 7. 1926.
Id. aji.
' Respandent'sreliminovy Objectiop.214. OBSERVATIONS OF ETHIOPIA AND LIBERIA 421
a "real" or objective institution may have survived the dissolution
of the League, but that the Mandate as a treaty or convention has
lapsed.' Respondent thus attempts to distinguish between the
term "Mandate" and the phrase "lapsing of the Mandate," inti-
mating that Respondent may legitimately continue to administer
the mandated territory. a without, however, being subject to the
enforceable international obligations of the Mandate'instrument.
The suggesteddistinction apparently relies heavily on Sir Arnold
McNair's Separate Opinion in International status O/ South-West
Africa. 8 Judge McNair in fact employed the concept of a "real"
or "objective" status of the Mandate to demonstrate that "the
international status created for South-West Africa, namely that
of a temtory govemed by a State in pursuance of a limited title
as defined in a Mandate, subsists."' Judge McNair concluded that
"the Mandate, which embodies international obligations, belongs
to the caiegoryof trcaty or convention ..and I have endeavoured to
show that the agreement between the Mandatory and other Mem-
b----o~ the Leaeue"embodied in the Mandate is still 'in force'."
(Italics added.) '
Whether the Territory of South West Africa would have a
-r--ial--tatus in international law even if the Mandate instrument
had "lapsed" is not a question before the Court in these cases.
The question before the Court is whether Respondent's duties under
the Mandate instrument continue to exist, that is to Say,whether
Respondent's administration of the mandated territory which is
based on the Mandate instrument is free of the obligations pre-
scribed in that instrument.
The term "Mandate" must include Respondent's duties as
defined in the hlandate instrument, since a fundamental concept
underlying "Mandate" is accountability in the manner prescribed
in the instrument. The Advisory Opinion of the Court clearly
confirms the Court's acceptance of this basic proposition.
/
Respondent has set forth its own account of the events leading
u to the creation of the Mandate and the events which transpired
tkereafier.
Applicants in their Mernorials have described in extenso what
they submit is a fair ~count of the relevant,histoncal facts. This
account has not been matenally altered in Respondent's version.
One point raised by Respondent may, however, ment reference.
1 Ibid.
See Respondent's Preliminary Objedionp. 317.
Separate Opinion by Sir Arnold DlcNairInierndiaal sfatusO/ Soulh-Wesl
Africo, Advisory Opinion: I.C.J. Reports 1pp. 146-163.
4 Id. at158.422 SOUTH WEST AFRICA
Respondent's views concerning the origin and nature of the
Mandates System, heavily emphasize statements, such as that
of Margalith (quoted by Respondent at p. IO of its Preliminary
Objections), that the "C" mandates were in practical effect not
far removed from annexation. If Respondent thereby intends
to create the impression that it is legally entitled to annex
South West Africa. it is in error, and is repudiated by its own
representatives and by the very writers whom Respondent quotes
to contend that the Mandate was not far removedfromannexation.
Thus, Margalith, in the work cited by Respondent, States:
"Do the same pinciples underlie al1the three categories[A. B.
and C Mandates],or are these principles different asto each class?
This question has alreadybeenpartly answered,but itisofsufficient
importanceto needfurther considerationat this place. Il canhardly
beouer-emphasizedthattheconceptsoftrust,guardianship,andmandate
areal thebasis ofal1themandates, irrespectiveof whatclassa territory
may belong 10.In othermords, no matlerhornliimited may bethe'powers
of a Mandatorv in a territory of theA group, or howwide lheymay be
in the territory of the C group. they are bolhapplicntions of one and
thesame idea." (Italics added.) l
M.'Rappard,whomRespondent alsocitesat p. 2210f its Preliminary
Objections, stated in 1925, that it was not for the white,minority
in a mandated territory to declare when the moment had arrived
for the territory to be able to stand alone. It would be contrary to
the spirit of the arrangement, he said, if, upon the demand of some
ten thousand settlers, a mandated territory were, in fact, to be
incorporated with the territory of the mandatory Power.%Tem-
perley, who seemingly questioned the wisdom of placing South
West Africa under mandate, nevertheless recognizes, in the same
quotation offered by Respondent, that "a general application of
the [Mandates] system was insisted upon."' Finally. Mr. Smit,
High Commissioner for the Union of South Africa and its accredited
Representative to the Permanent Mandates Commission, stated
that "the inclusion of South-West Africa in the Union could only
come about as the result of a Treaty between South-West Africa, as
an independent Govemment, and the Government ofthe Union;"'
and the South African representative tothe SanFrancisco Conference
of 1945 on the United Nations Charter conceded that annexation
would be contrary to the principles of the Mandate, so long as the
Mandate survived. He stated: "There is no prospect of the temtory
ever existing as a separate state, and the ultirnate objective of the
Mandatory principle is therefore impossible of achievement. The
' Margalith. A. M. The Inlcrnntional Monda-es. TohnsHo~kins Prss. Baltimore,
1930-PP 95-96.
Permanent Mandata Commission, Minutes of Sixth seesion, 60..
' Se Respondent's PreliminoryObjectionp. 222.
' Permanent Mandates Commission. Minutes of Sixth session. p. 59. OBSERVATIONS OF ETHIOPIA AND LIBERIA 423
Delegation of the Union of Soiith Africa therefore claims that the
Mandate should be terminated and that the territory should be
incorporated as part of the Union of South Africa." '
Respondent also stresses the political. compromises which
occurred in fashioning the Mandates System. Applicants do not
conceive it material to the instant cases to argue the extent to
which the Mandate arose from compromise. Nearlyall agreements
arise from compromise. The essential fact is that Respondent
agreed to certain terms in acceptirig the Mandate, and continues
to exercise the Mandate.
Respondent's reasoning on pages 216-223 of the Preliminary
Objections is not susceptible of clear interpretation. On the one
hand, Respondent asserts that "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."
On the other-hand, Respondent asserts that Applicants' comment
that "The Mandate System, as ultimately given expression in
Article 22 of the Covenant of the League of Nations and in the
several Mandate Agreements, represented a victory for the oppo-
nents of the principle of annexation," and other statements of a
likenature, are mere "attempts at the unilateral imposition upon it of
suggested duties which were excluded from those undertaken, and
which would amount to a repudiation of the compromise whereby
Respondent was induced to agree to the Mandate System being
rendered applicable at al1 to the case of South West Africa."
Either mandatories were permitted to annex mandated terri-
tories, or they were not. There was no provision for annexing the
mandated temtories just a little bit.
The Council of the League, the Permanent Mandates Commission,
the United Nations, the International Court of Justice, and scholarly
authority al1unite in agreeing that the Mandates System does not
permit annexation of territories under "Cm mandate. Far from
bestowing the right of annexation, the Mandate affirmatively
imposes the duty to guide the people of the mandated territory
toward political maturity which will enable them to determine
their own political destiny. Such a duty is the very raison d'être
of the Mandates System. As the Court stated in the Advisory
Opinion, in regard to South West Africa, the principle of non-
annexation was one of the two principles considered to be of
"paramount importance" in establishing the Mandates System. '
Hence, it is difficult to evaluate Respondent's motive or reasoning
' SeeRffipondent's P~climinor~ Oojccfions, pp. 237-238.
Rffipandent's Preliminary Objections, p. 223.
'IInternational sfntur of Souzh-Wcrt Africo, Advisory I.C.J.Reports
rggo,p.128at 131. ,. .424 SOUTH WEST AFRICA
in characterizing Applicants' argument as a "unilateral imposition
upon it of suggested duties which were excluded from those under-
taken." '
To repeat Applicants' basic point. if Respondent seeks to imply
that it may unilaterally incorporate the mandated territory either
at once or piece-meal it is in error. If Respondent's argument on
pages216-zz3of the Preliminary Objections is intended toconvey a
different meaning, the legal consequences of such a meaning have
not been spelled out by Respondent, and therefore the argument
has no relevance. OBSERVATIONS OF ETHlOPIA AND LIBERIA 425
III
ARTICLE 7 OF THE MANDATE IS A
"TREATY OR CONVENTION IN FORCE"
Respondent concedes that Article 7 of the Mandate was a treaty
or convention in force while the League of Nations was in existence,
but contends that the disçolution of the League caused such treaty
or convention to "lapse."'
Respondent's contention is directly contrary to the Court's 1950
Advisory Opinion in which the Court ruled:
"According to Article 7 of the Mandate, disputes between the
mandatory State and another Member of the League ofNations
relating to the interpretation or the application of the provisions of
the Mandate, if not settled by negotiation, should be submitted to
the Permanent Court of International Justice. Having regard to
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 clause in the Mandate isstill in force and that, therefore.
the Union of South Africa is under an obligation to accept the
compulsoryjurisdiction ofthe Courtaccordingto thoseprovisions." '
Respondent contends that the Court's jurisdiction was not in
issue in the 1950 Advisory Opini~n,~that a de novo consideration of
Respondent's contention is in any event required, and that such
de novoconsideration would support its theory that Article 7 is not
in force.
A. RESPONDENT'R SEQUEST FOR REVERSAL IS NOT
WELL-FOUNDED
The question whether Article 7 is in force, as a treaty or conven-
tion-the subject of Respondent's First Objection-was at jssue in
the 1950 Advisory proceedings. The Court was requested by the
General Assembly to render an opinion on the Question, inter dia,
"Does the Union of South Africa continue to have international
obligations under the Mandate for South-West Africa and, if so.
what are those obligation^?"^ In response to the Question, the
Court held that Respondent "is under an obligation to accept the
compulsory jurisdiction of the Court according to those provisions
' Respondent's Prcliminnry Objectionzgg.
Infernafiaalslotur of South-Wasf AlriAdvisory Opinion:I.C.J.Reports
19.50. p128at 138.
' Ibid.ndent's Prcliminery Objeçfip.215.
'See Inkdianl sfafus of South-West Afrirn. AdvOpinion:I.C.J.Reports
19.50p.128 atrjr.
284z6 SOUTH WEST AFRICA
[the provisions of Article71,"' despite argumentation on the point
by Respondent.
Respondent's additional contention, mentioned above-that the
Court should in any event engage in a de novo inquiry and reverse
its previously announced decision-likewise is untenable. It implies
the existence of newly discovered evidence or newly invented theo-
ries sufficient to justify so unprecedented a repudiation by the
Court of its prior unanimous holding.
In fact, Respondent asserts no new facts or theory which bear on
Article 7. Its contention is exactly that advanced by it in 1950
before the Court. and which the Court rejected, namely, that the
dissolution of the League caused its obligations defined in. the
Mandate instrument to lapse.
In 1950. Respondent advanced the dissolution of the League as
the premise of an argument that the Mandate instrument, being
essentially a contract similar to "mandate" in private law, went
out of existence and al1 legal rights and obligations under the
Mandate were extinguished because one of the two parties to the
contract disappeared. Now, in its Preliminary Objections, after
the verbiage is stripped away, Respondent's argument remains the
same:
". . .the substantive obligations lapsed insofar as they were con-
tractual obligations owed to 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 hlembersof the League:
Moreover, if the League had heen a legal personawhich could
have been apariy to a treaty or convention, it ceasedto be so on its
dissolution and its Members ceased to have the qualification in
cousequencewhereofthey might have been parties.
"Consequeniiythereceasedto be 'in force'a 'treatyor convention':
theparty or arlreswith wh theagreementhad beencontracted,/el1
away. as wePas thecontractualobligations undertakvis-à-visjhem;
andthere werenolonger'provisions'tothe'interpretationorapplicatron
of which a compulsory jurisdiction dause .couid have reference."
(Italie added.)
Respondent still views the Mandate'as a bare contrait. Before;
only the League was the othercontractor in Respbndent's argument.
Now, the other contractor was either the League or its Members.
In Respondent's view, both "have fallen away;': ergo, Respondent
proceeds. there is no contract.Al1that Respondent has donein its
more modern version has been to add one more possible contractor
who could have "fallen away" by virtue of the League's disso-
Id. at r38.
ments p.273at289-191.of Snrlh-WeAfricaPleadings, &al ArgumentsDocu-
Id. at277,278. . .
'SeeRespondent's PvzliminaObjcdims.pp. 357-358. OBSERVATIONS OF ETHIOPlA AND LIBERIA 427
lution, in spite of the fact that the Court clearly stated that the
Mandate may not be analyzed as a mere contract..'
Applicants consider that in the face of a unanimous and explicit
ruling by the Court concerning an issue squarely raised and as to
which Respondent fully participated, it is an imposition upon the
Court for Respondent to present the same basic argument as before,
and at the same time propose a de novo consideration.
B. MISCELLANEOU POSINTS OF RESPONDENT
Respondent's argumentation in its First Objection is presumably
directed to the question of whether .4rticle 7 of the Mandate is in
force, since it is Article7 upon which the jurisdiction of the Court
in the instant cases may be said to rest. Nevertheless, in its First
Objection Respondent discusses numerous other points aswell,inclu-
ding :its duty to subrnit tothe supervision ofthe United Nations, its
duty to submit petitions from the inhabitants of the Territory, 'and
the international status of the Territory. Indeed, in its First
Objection, and throughout its Prelinzinary Objections,Respondent
disputes, under the heading of Preliminary Objections, al1the alle-
gations in the Memorials except those dealing with certain substan-
tive violations of the Mandate.
It is only the question of whether Article 7 is in force, as is shop
below, which, among the numerous matters discussed by Respon-
dent in its First Objection, is relevant to jurisdiction. and Applicants
therefore do not propose at this time fully to treat aU of those
matters. Nevertheless, comment on two subjects raised by Respon-
dent is necessary for purposes of clarity.
I. Resfiondent'sconclzcsionthat it may continue to administer
the territory without any duty to refiort and account
First, Respondent erroneously seeks to give the impression that
the Majority Opinion distinguished between the Mandate as a "real
or objective" institution and the Mandate as a "treaty or conven-
tion." 6 Applicants have already adverted to this incorrect analysis
of the Opinion.' Applicants only wish further at this point to focus
upon the self-serving conclusion which Respondent in its First
Objection draws for itself from the suggested distinction. Before,
in 1950.Respondent tried one tack to arrive at the same conclusion:
"The Government of the Union of South Africa would close this
statement by expressing their view that the Tenitory of South-
West Africa faüs, at present, under no known category in inter-
national law ...It is the considered view of the Government of the
I Intnnoiianl ridur ofSouth-West Africo. Advisory Opinion: I.C.J. ~eports
1950,p. '28atr32.
'Rapondent's Prcliminnry Objcctias. pp. 3'2-350.
Id. at315-3163,21.
' Id.at299.306..3'7.
' SC%*p. 420-421. 428 SOUTH WEST AFRICA
Union of South Africa that there is no international legal limitation
upon their competence in respect of the territory and that their
international obligations. arising from the status of the territory,
are to be determined ac~ordingly."~ The Court was not convinced
by this argument. Now, Respondent tries another tack, albeit
without the same amount of explicitness or candour:
"By natureandcontent,too, the obligation[toreport and accountj
and the nght correlative thereto were of a purely contractualor
'person@'nature as distinct from 'real'nghts and obligations.The
obligation was not in any way constitutive of the status of the
Temtory or of the Mandatorys tiUc thereto, as might be said of
other aspects of the Mandate System."
Respondent thus uses its First Objection not only to argue juris-
diction, but to attempt to convince the Court that it may continue
to administer the Territory, and yet be free of al1duties to report
and account.
2. Respondent's contentionsregarding Article 6 of the Mandate
Respondent also devotes over one-half of its First Objection to
thequestion of whether Article 6 of the Mandate is in force. and, in
so doing, sets forth so-cailed "new facts" regarding the succession
by the United Nations to the supervisory powers of the League.
Since no other attempt is made by Respondent in its Preliminary
Objectionsto direct the Court's attention to new factual material of
"vital importance",andsince, as shown above at pages 425-427,Res-
pondent's legal theories are in substance the sarneasthoseadvanced
by it before, presumably the above-mentioned "new facts" consti-
tute the "material information of vital importance" upon which
Respondent urges de novoconsideration by the Court of the juris-
dictional issues involved in the instant cases.
Respondent fails to indicate. however, what relevance the
question of United Nations supervision has to jurisdiction, which
is the soleissue in these preliminary proceedings. Respondent does
not appear to make the argument that because, in its opinion,
Article 6 is not in force, Article 7 is not in force. Indeed, such an
argument would be untenable.
The question of whether the United Nations has succeeded to
the supervisory powers of the League vis-d-vis the Mandate is not
dispositive of the question whether there are States competent to
invoke Article 7 of the Mandate. This point may be illustrated by
refemng to the Separate Opinions of Judges McNair and Read.
Both Judges found that Article 6 is not in force in the sense that,
in their view, performance thereof is not now possible..But both
.Iudge McNair and Judge Read hastened to add and to emphasize
ments. p.72 at 83-84. oSmrth-WestAfrica,Pleadings, Oral Arguments, Docu-
'Respondent'sPvcliminovy Objediasp. 317. OBSERVATIONS OF ETHIOPlA AND LIBERIA 429
that tlie lack of administrative supervision does not leave Res-
pondent free from international accountability, and both held that
such accountability may be achieved through the compromissory
clause, Article7, which they explicitly found to be in force.
There as a certain interconnection between Articles6 and 7,but
it is not one which Respondent will wish to recognize.
Both the htajority and the Minority in the 1950Advisory Opinion
held that the Mandate instrument did not lapse with the disso-
lution of the League. They found that the Mandate instrument
endures because its purposes have not yet been achieved. They
stressed, in this connection, that the Mandate instmment created
an international rkgime, which affords the instrument a vitaiity
greater than that possessed by an ordinary contract between two
States. Judge McNair also found an analogy to trust and tutelle
instructive on the same point. Having achieved this common
understanding, the Majority and Minority then divided on one
question: succession of the United Nations to the League's super-
vision of the Mandate. The Majority found that there had been an
automatic succession; the Minority did not agree. Although the
Minority held that the instrument of Mandate continues in exis-
tence, in declining to employ the doctrine of succession, Judges
McNair and Read held that Article 6 could not be enforced only
for the mechanical reason that there is no Council of the League to
which Respondent could report. Both Majority and Minority held,
however, that Article 7 is in force. In this connection, Judges
McNair and Read found no mechanical problem since Members
of the League at the time of its dissolution clearly continue in
existence.
The interconnection, then, between Articles 6 and 7, is this:
according to the Majority view of Article6, Applicants have stand-
ing ta invoke Article 7 by virtue of membership in the United
Nations; according to the Minority vi.ewof Article 6, Applicants
have standing by virtue of membership in the League at the time
of the League's dissolution.
The above discussion is developed in full in the next Chapter;
mention of it is made here, however, to indicate that although
there is an interconnection between Articles 6 and 7,such inter-
connection is not the one on which Respondent bases its lengthy
discussion of Article.6. In fact, as shown above, Respondent does
not indicate how Article 6 is relevant to Article7 at dl. Since
Respondent has nevertheless devoted more than thirty-five pages
to the question of United Nations supervision, Applicants wiil
comment thereon to the extent of clearing the record, reserving for
subsequent proceedings a more complete discussion on the ments.
Respondent admits that it is the Mandatory's duty to report and
account which distinguishes a mandate from a self-limiting trust.' 43O SOUTH WEST AFRICA
Nevertheless, although it continues to administer the Territory,
and avers that it has the legitimate right to do so, it contends that
it has no duty to report and account. It is this iiiogical and inequit-
able proposition which the Court was unwilling to accept when it
held that Respondent has the duty to report and account to the
United Nations1; when it did so, it did no more than apply the
principle of giving effect to a basic international instrument which
has as its purpose more than mere contractual relations between
two entities, but which creates an international institution-a
sacred trust. The Court employed the same type of legal reasoning
that a municipal court wouid employ if it were faced by the con-
' tention of a trustee or tuteurthat his duty to account had "lapsed."
The Court furtbermore found, for purposes of confirmation, that
the League of Nations relied on declarations of Mandatones, includ-
ing Respondent, that they wouldcontinue to honour their obligations
as mandatories; and that neither the League nor theUnitedNations
intended the'obligations of mandatories to disappear without their
being replaced by new obligations under trusteeship agreements. a
The Court did not reach its conclusions by a narrow margin. The
vote on the question of succession was twelve votes in favor of,
and two votes against, the view of the Majority.
Now, Respondent sums up a long exposition by stating that :
"It seems quite evident that, with knowledge of certain crucially
important facts that were not placed before the Court in 1950,the
Court couid not possibly have amved at these conclusions by in-
ference." '
Respondent's contention is advanced with little grace or merit.
First, not one of the so-called "new facts" has come into existence
since ig50. Respondent had fuii opportunity to develop at length
each and every one of them during the Advisory proceedings.
Second, not one of the so-called "crucial new facts" is in reality
either new or crucial. Each one of them was before the Court in
1950, and, obviously, was not deemed crucial. Thus, in regard to
the four facts which Respondent deems to be "of particular im-
portance" ':
(1) Respondent's statement that it made an "express reser-
vation" at the San Francisco Conference which "rendered quite
clear that there was on Respondent's part no tacit agreement to,
.or acquiescence in, Tmteeship under or supervision by the United
Nations" 'refers 6 to Respondent's statements at the San Francisco
Conference that it intended not to enter into a trusteeship agree-
' Infcvnntionnl rtatO/ South-West Africo. Advisory Opinion: I.C.J. Reports
1950, p.128 atr33. 136.
' Id.at 133-13,.
Id.at143.
Bypvimietof p.315. n.I.OofRspondent'sPrcliminary Ob~cctiar. OBSERVATlONS OF ETHIOPIA AND LIBERIA
43 I
ment, but, rather, intended to seek incorporation of the territory.
The same ooint was covered in Res~ondent's Written Statement
presented ;O the Court during the ~dvisory proceedings:
"While still a mandatory Power, the Union of South Africa had, at
San Francisco, on May 7, 1945, circulated a document.. .making
known its view 'that the mandate should be terminated and that the
territory should be incorporated as part of the Union of South
Africa'. That view was repeated in essence at the final meeting of
the League of Nations. ..The Union Govemment, on both occasions,
clearly indicated theirpolicy of incorporation of the territory, if its
peoples so desired. Both the United Nations and the League of
Nations were aware of this. of the fact that the mandates svstem
wouldtrrminate u ,onthedissoliitionof theLeapeand that theijnion
of South Africa di d not intend to submit a trusteeship agreement." '
(2) Respondent's statement conceming the alleged rejection by
the Pr~~aratorv Commission of its Executive Committee's ~ro~osa* &
for a Temporary Tmsteeship Committee 2 wascovered in substance
by its Written Statement in 1950:
"15. Nor has the UnitedNations regarded itself asthe legalsiicces-
5-01to the League. The Executive i:ommittee which sat in London
from 16 August to 24 November, 1945, and whicli had, as one of
its tasks, the drawing up of recommendations to the Preparatory
Commission on the transfer of certain functions of the League to the
United Nations, had accepted the idea of a total transfer of the
Leaeue's functions and assets to the United Nations, subiect to
excgptions and without prejudice to future action. ~lthough such
a total transfer was not finally recommended, the language ap-
propriate to a legal succession appeared in the report and recom-
mendations. The report was repudiated by the Soviet Delegation
on the ground that it made the United Nations appear to be the
successor in law to the League. The proposals finally adopted by
the Preparatory Commission avoided the suggestion of a 'transfer'
of functions and spoke of the 'assumption' by the United Nations of
'certain activities' previously exercised bu the League." '
The Court knew that the functions of the League in respect to
mandates had not been expressly transferred to the United Nations
and was aware of the fact that other transfers from the League to
the UnitedNations had occurred. Neither of these facts wasregarded
as crucial.
(3) Respondent's statement conceming the original Chinese
proposalZ is also not well taken. The facts concerning the
' Statement Submitted by the Gvernment of the Union of South Africa.
IntCrnlUionaslfntuof South-WesA t fvico.Pleadings.OralArguments.Dwuments.
P.72 at 77. 78.
' Respondent'sPrrliminnryObjcctias, p. 345.
InlcvnolionnlstatuoftSouth-WeshAtfric=,Pleadiogs,OralArguments. Documents.a.
P. 72at 75. SOUTH WEST AFRICA
432
Chinese proposal mme before the Court in 1950, in the Writ-
ten Statement of the United States of America. 1 Moreover,
even if it had been previously unaware of the Chinese proposal;
which is doubtful, Respondent was informed thereof by the Written
Statement of the United States well in advance of the oral pro-
ceedings, but chose not to comment on it explicitly at the pro-
ceedings.
The Chinese delegate to the Fourth Committee has placed
Respondeut's contention in its proper perspective:
"MI. Liu (Chins) observedthat the South African representative
had stressedthe draft resolutionsubmitted to the LeaeueofNations
by the Chinesedelegation; he feared that that repr~eutnti\,e8sre-
marks might create a wrong impressionin the Founh Committee.
The resolution hnallv adovted bv the I.earniedid not.it was true.
contain any specificprovi;ion f& the tran'çferof supe~visoryfunc:
tions, but neither did it forbid such transfer. In view of the im-
portance of that point, he wondered whythe South AfricanGovem-
ment had not consideredit earlierbut had waited until the advisory
opinion of the Court had been discussedin the Fourth Committee.
Dr. Steyn, whohad represented his Govemmentat the deliberations
of the International Court of Justice, could have raisedthe question
at the time.
"The Chinese delegation was therefore unable to accept the
argument that the Court had been ignorant of the facts'."
Now, Respondent claims that the Court could not conceivably
have arrived at its conclusions inthe Advisow Ouinion had it been
aware of the Chinese proposal, inter alia.AS a Latter of fact, the
Court obviously did not find the facts concerning the Chinese
proposal crucial, and had good reason therefor, as is demonstrated.
by the foliowing section from a League Report which is quoted in
the United States Written Statement:
"FoUowingupon a number of statements in plenary sessionofthe
Assembly with regard to the future of the territories now held
under mandate. this subiect was but brieflv discussed bvthe First
Committee. ~ttention wis drawn by the delegale of ~h;na to the
fact.thatalthough thecharter of the Gnited Nations-in particular
bv the establishment of an international tmsteeshio svsiem-em-
bodied principles cofresponding to those of the mandate system,
it made no provision for assumption by the United Nations of the
League'sfunctions under that system as such. The continued appli-
cation to the mandated territories of the principles laid downin
the Covenant of the League was a matter on which the Assembly
would wish to be assured. The First Committee took note of the
factthat a11the hlembersof the Leaguenowadministeringmandated
temtories hadexpressedtheir intention tocontinue. notwithstandin-
. ~ntten Statement of the UniteStatesof Ameriea. Inlcrnntianstaiuof
Soulh-West Alrica, Pleadings. Oral Arguments. Documep.85 at ioz.
* As paraphrase3 inthe Summary Records of 196th meeting of the Fourth
Commitiee, U.N. Doc. No. A/C.4/SR.rg6 at 364.365. paras. 63-64 (1950).
' Respondent's Prcliminory Objections, p. 346. OBSERVATIOSS OF ETHIOPIA AND LIBERIA
433
the dissolution of the League.to adniinister tliese territories for the
well-beingand development of the peoplesconcernedin accordaiice
with their obligations under the respective niaiidates, until otlier
arrangements were agreed upoii witli the Uiiited Nations." '
(4) The fact that Respondent finds the views of States expressed
in a Report on Palestine to be crucial is surprising in light of Res-
pondent's argument before the Court in 1950:
."As a corollary. apparently, to the propositioii that the rnanda-
tories and the Membersofthe Leagueneverintended the mandatesto
lapse. the Court's attention is alsodrawn. in the Written Statement
of the United States, and also in the oral statements, to the fact
that certain Membersof the United Nations, and also the United
Xations itself in certain resolutions, have, accepted the continued
existenceof the mandates. Now that again, hfr. President. does not
seem to take the matter any further. In facl, 1 find il dificul1 lu
understand why these uiews are referredlu al al1 in this connexion.
At the niost, they are mere expressionsof opinioiz. These expressions
of opinion cannotchangethe realitiesofthelegulsiluution.ï'heycannol
make neinlaw." (7lalics added.)?
The facts cuncerning the Palestine Mandate were discussed by
Sir Arnold McNair in his Separate Opini~n,~ and, presumably,
were known to his colleagues on the Court as well. The Report of
the Special Committee on Palestine \vas also noted in the afore-
mentfoned Written Statement of the United States.'
Further. if the views of Statesare now to be con~ider~ ~ ~levant.
due weight will undoubtedly be accorded to the views of the ove11
whelming number of United Nations Members, which have re-
peatedly taken the position that Respondent as Mandatory is
accountable to the United Nations. 5
To snm iip, the Opinion of the Court regarding Respondent's
duties to report and account to the United Nations is not affected
by Respondent's so-called "new facts". These facts are neither new
nor crucial.TheCourt considered them, as well asthe other pertinent
facts, and arrived at its conclusion. Respondent merely disagrees
with that conclusion.
\Vhen theargument in the First Objection relating to jurisdiction is
finallvdistilled it isthis: Res~ondenr arcuesinitsFirstObiection. ;iii<l
rearkes in itsSecond~bject~on,that~~licantsdo not hofdanyrights
' \Vritten Statcment 01 the Cnited States of .AmericaInitrnai~onul rlolLI iouih-
Il'esl;l/r>ru.t'1r;iiling. 0r;:\rgumrnrï Dociiments. )> 85 dt [or.
' itiitemciirtifthe I'nlcn of Sisuth .\(riinId at ,260
' Separate Opinion by Sir Arnold McNair, Internationalsfalus O/ South-West
Africa. Advisory Opinion: I.C.J. Reports 1950. p. 146 at 157.
Page 134 of the Statement.
' See. for example. U.N. Gen. Ass. Off. Rec. 5th Sess., Supp. No. 20 at 55
(A11775) (1950): U.N. Gen. Ass. Off. Rec. 6th Sess.. Supp. No. 20 at 63 (Aizir9)
(1952); U.N. Gen. Ass. 05. Rec. 8th Sesç.. Supp. Na. 17 at26 (A/z6jo) (1953). OBSERVATIONS OF ETHIOPIA AND LIBERIA
435
devisedfor that purpose by way of judicial interprelafionand upfilic-
ation of the original instrument."(Italics added.l
As discussed herein, Respondent attempts to distinguish between
the Mandate as a "real" or objective institution and the Mandate
as a treaty or convention. Respondent does not attempt to analyse
the difference between the two; nor does it attempt a definition of
either. It merely draws its own conclusions frorn the' alleged dis-
tinction, as shown above on pages 427-428.
Applicants have pointed out that the instant cases pertain to the
duties of Respondent asset forthin theMandateinstrument,and that
the Court in its Advisory Opinion found such duties in force. To
clear up an ambiguous and vague implication of Respondent that
somehow certain undefined duties arising from status may have
survived the League's dissolution, but none arising from treaty or
convention has survived, Applicants respectfully reiterate the
point that it is the Mandate instrument-a treaty or convention-
which defines Respondent's duties. It is to that instrument that the
Court looked, holding that the terms of the Mandate are still in
force, including Articles 6 and 7 thereof. The Court did not, as
might be inferred from Respondent's ambiguous language, hold that
only in an objective or "real" sense did the Mandate survive. The
Court found that the Mandate is an international regime, and Judge
McNair found thatit has acquired a "real" or objective status. But
the pertinency of this judicial analysis is lost on Respondent: the
Mandate instrument, which created an international regime or a
status, survived the dissolution of the League as a treaty or con-
vention because, to repeat the words of Judge Lauterpacht, "the
essence of such instmments is that their validity continues not-
withstanding changes in the attitudes, or the status, or the very
survival of individual parties or persons affected."
Applying the concept of international regime to the Mandate, it
is apparent that the terms of the Mandate instrument, without
which there is no effective international control and, hence, no
Mandate, continue in existence ,despite the League's dissolution.
Since the purposes of the Mandate have not yet been achieved, and
since the Mandate has not been legally terminated, the terms of th15
Mandate continue in force.
Technical difficulties appear in fully applying the analogies of
trust and tutelle to mandates. Nevertheless, several scholars have
found such analogies helpfulin analyzing the nature of the Mandates
System, and Applicants believe that certain basic and fundarnen-
' SeeRespondent's Prcliminory Objcclionr. p. 299.
' See. e.g.. BrierlyJ.L.. "Trustsand Mandate," The Bvifish Ycorbookof
Infcrnnlianl Law, 19~9, pp. 217.219; Margalith, A. M.. The Inl~~nalionolMandates,
Johns HopkinsPres, Baltimore, rg30pp. 36-45: Separate Opinion by Sir Arnold
McNair. Inlernalional stolus of Smith-West Africo. Adviwiry Opinion: I.C.J. Reports
1950,p. 146at 148-149.436 SOUTH WEST AFRICA
ta1 ~rinci~les underl.ing-both institutions are relevant to the issue
unier consideration.
T-~~~e~-ur~ ~f trust and tutelle which A~DlicantS stress is that
both rest upon specified duties undertaken'by a fiduciary. In a
broad sense, agreement on the part of the fiduciary is a necessary
element in the structure of both. The trustee agrees to abide by the
tems of the trust instrument; the tuteuror curaleurmakes a promise
and takes an oath to abide by the terms of the law governing his
duties. Yet a trust and a tutelleare more than mere agreements, and
they have a permanency which endures until their purposes have
been fulfilled or they have been legally terminated. Their endurance
presupposes that the terms of the fiduciary's undertaking endure.
To state this elementary principle in another form, a fiduciary's
agreement which effectuates a tmst or tutellehas a permanency and
vitality greater than an agreement which forms a mere contractual
relation. In respect to both trust and tutelle the law is universally
applied in such manner as to give effect to the fiduciary's under-
taking, express in the case of trust, and implied by law in the case
of tutelle, whether or not any mere "mechanical problems" present
themselves in terms of changed personalities or conditions.
Similarly, duties undertaken by a Mandatory in a Mandate
instrument do not simply disappear. International law is applied to
give effect to those duties, and the Mandate endures until its
purposes have been achieved, or until it is legally terminated, i.e.
until the United Nations gives its prior consent to a modification or
terniination of the \land;ite, a propo5ition fully recognized t>y
Ilesi>ondent \rheii in 1016 it unsuccessfullv soueht the consent of
the'united Nations to ir;corporate South est Africa.
In conclusion, Applicants submit that Article 7 is a treaty or
convention in force, and, as will be developed extensively in the
iiext Chapter, that they are competent to invoke Article 7. OBSERVATIONS OF ETHIOPIA AND LIBERIA
IV
EACH APPLICANT MUST BE CONSIDERED TO BE IN THE
CATEGORY OF "ANOTHER MEMBER OF THE LEAGUE OF
NATIONS", WITHIN THE MEANING OF ARTICLE 7 OFTHE
MANDATE
Respondent, in its Second Objection, contends that "because
Applicants are not Members of the League of Nations the alleged
dispute is not with 'another Member of the League of Nations'. "
(Preliminary Oi~jectionsp: 361.) The essence of Respondent's argu-
ment appears to be that provisions of the Mandate instruments
were "available to Members of the League only," that a State
which ceased to be a League member "lost its legal interest in the
administration of the Mandates," and that the dissolution of the
League having automatically terminated ali League memberships,
Applicants are no longer entitled to invoke Article 7.(Preliminary
06jections,pp. 364-367. eassim.)
The conclusion, which is obviously the key to Respondent's
whole argument, is not set forth by Respondent with explicit
candour. On the contrary, it is irnplied by indirection, notably
through repeated use of the phrase "termination of membership"
(e.g.,P. 364).
It1ssubmitted, however, that Respondent's interpretation of the
phrase, "another Member of the League of Nations," misconceives
the purposes of Article7, ignores the importance of judicial super-
vision, and is inconsistent with the prior decisions of this Court,
as wellaswith scholarly authority andthe admissions of Respondent
itself before the United Nations.
A. JUDICIAL, SCHOLARL YND OTHER AUTHORITY
The Majority Opinion in the 1950 Advisory Opinion, as well
as the Separate Opinions of Judges Sir Arnold McNair and Read,
support the contention of Applicants that each must be considered
to be "another Member of the League of Nations" for the purposes,
and within the meaning of, Article 7 of the Mandate. If this con-
tention were not sustained. no state would be presently qualified
to invoke Article 7, and judicial supervision would be a nullity.
The Majority of the Court in the Advisory Opinion of 1950ruled
that the United Nations has succeeded to the functions of the
League, in respect of the Mandate, and that Article 7 is in force.'
'I~~kntalimal sfaf01Swlh-West AtticaAdvi~ry Opinion: I.C.J. Reports
1950,p. 128a143,r38.438 SOUTH WEST AFRICA
Sir Arnold McNair and Judge Read, diffenng with the majority
view concerning United Nations succession to the League's super-
visory powers, expressed the opinion that Article 7 is in force, and
that only States which had been Members of the League at the
time of the League's dissolution are entitled to invoke Article 7.'
It follows from either the majority or minority analysis that
Applicants are competent to invoke Article 7, and that Respon-
dent's contention is inconsistent with the view of every member
of the Court.
I. That Respondent's submission is both untenable and
illogicalis clear/rom a considerationofthis Court's reasoning
in ils Advisory Opinion of 19502
(a) The Majority Opinion.
In its Advisory Opinion of July II, 1950, the Court ruled:
"According to Article 7 of the Mandate, disputes between the
mandatory State and another Member of the League of Nations
relating to the interpretation or the application of the provisions
of the Mandate, if not settled by negotiation, should be submitted
to the Permanent Court of International Justice. Having regard
to Article 37 of the Statute of the International Court of Justice,
and Article 80, paragraph 1, of the Charter, the Court is of
opinion that this clause in the Mandate is still in force and that
therefore,the Unionof South Africais under au obligationto accept
sions."pJlsory jurisdiction of the Court accordingto those provi-
If Article 7 is in force, there must be States competent to invoke
it, or the foregoing holding is rendered meaningless. The Court's
references to Article 80, paragraph 1, of the Charter and toArticle37
of the Statute of the International Court of Justice would in parti-
cular be irrelevant, except on the premise that the dissolution of
the League was not an event which extingnished the rights of
States to invoke Article 7.
Applicants have discussed in their Memorials extensively, ' and
have summarized herein, ' the well-settled doctrine, reflected by
judicial precedent, scholarly opinion, and the views of States, that
an Advisory Opinion of the Court has "great legal value" ' and is
"an authoritative pronouncement of what the law is," 7 lacking
' Internalional stolus of South-Wcsl Afvicn, Advioory Opinion: I.C.J. Reports
1950, p. 128.
a Id.at 138.
' MemorioIr. ...s.-10-.
See p.420.
' Dissenting Opinion by Judge Winiaroki. Inlnpl~fotion of Pcue Trealies wilh
n,lgaria. Hungary ond Romanio. Advisary Opinion: 1.C. J. Reports 1950p. 89 at
3..
' Rosenne. S.,Tht InlcrnalionolCourt~f J~rtiu. Sijth~fi. ~ ~ ~ . 7P.493. OBSERVATIONS OF ETHIOPI.4 .+.\IDLIBERIA 439
only the sanction of enforceability. 1 Respondent has failed to set
forth any argumentsnot previously advanced by it in the proceed-
ings leading ta the Advisory Opinion of 1950 which should alter the
Court's mling that Article 7 remains in effect and the necessary
corollary that to be effective there must exist States with the
capacity to invoke it.
(b) The Separate Opinion of Sir Arnold McNair.
Judge McNair explicitly stated that "Every State which was a
Member of the League at the time of its dissolution still has a
legal interest in the proper exercise of the Mandate." He went on
to Say:
". . . 1 have endeavoured to show that the agreement between the
Mandatory and other Members of the League embodied in the
Mandate is still 'in force'.The expression 'Memberof the League of
not mean 'so long as the League exists and tlicy are Mcmbers of does
it'. .."
(c) The Separate Opinion of Judge Read.
Judge Read stated:
".. . the legal rights and interests of the Mcmbers of the 1-eague,
in respect of the Mandate. survived with one important exception-
in the case of Menibers that dit1not become parties to thc Statute of
this Court, their right ta implead the Union bcfore thc I'ermanent
Court lapsed." "
***
"In the present instance. the Union, in the case of disputes
relating to the interpretation or the application of the provisions
of the Mandate. is subject to the compulsory jurisdiction of this
Court-under the provisions of Article 7 of the Mandate Agreement
and Article 37 of the Statute, reinforced by Article 94 of the Char-
ter." 6
2. Scholarly Writings and Oficial Declarations
A former Judge of the Court. the late Sir Hersch Lauterpacht,
stated in Oppenheim-Lauterpacht.:
". . . at least those mcmbers of the United Nations who were mem-
bers of the League of Nations are entitled to bring before the Inter-
' Dissenting Opinion by Judge ZoriEiL.Inferprefalia of PLUS Trentics with
Bulgoria. Hungary and Romonia. AdvisoryOpinion: I.C.J.Reports 1950,p. 98at
1.31.
' Separate Opinion by Sir Arnold XcNair, Intrrnolionol slalus of South-Wcsl
Africa.AdvisoryOpinion: I.C.J.Reports 1g5o. p146.
' Id. at 158, 159.
' Separate Opinion by Judge Read. Intrrnationol rlnlur of Soulh-Wcrt Afvico.
AdvisoryOpinion:I.C.J.Reports 1950. p. 164.
' Id.at 169.440 SOUTH WEST AFRICA
national Court of Justice any dispute relating to the interpretation
orthe application of the provisionsof the Mandate." '
Finally, a Representative of Respondent, itself, Mr. D. B. Sole
speaking for Respondent in the General Assembly's Fourth Com-
mittee, stated:
"Now the Mandate, as has been shown, provided two kinds of
macliiiiery for its supervision by the League of Nations-firstly.
tliere was the iudicial su~ervision bv means of the rieht of anv
nicriil>:rtlic1:c:queuiidérArticle7to bringthe inanda~~r!vcom~~i-
,oril\. hi!lorethe I'ermnnr.ntCourt. :\iid secon<llyt,lieadiiiiiiisrrarivc
siipërvision by means of annual reports and their examination by
the Permanent Mandates Commissionof the League. The judicial
supervision providedforinArticle7ofthe mandate has beenexpress-
ly preservedby meansofArticle37 of thestatute of the Internation-
al Court of Justice reinforcedby Article94 of the Charter, and the
Court has in fact found that the Union of South Africa is therefore
still under an obligatioiito accept the compulsoryjurisdiction of the
Cocrt according to the provisionsmentioned. Any Statemhich masa
memberof the Leapte al ils dissolutioncouldthereforestill impleadthe
Gouernmentofthe UnionofSouthAfrica beforetheInternationalCourt
ofJirslicein respectof any dispute betweensucha memberslaleandthe
Gouernment O/the Union of South Africa relatin10 :heinterpretatio~t
or the applicatioO/ theprocisionsoftheMandate." (Italics added.) '
3. Summary
In support of.their contention that they are competent to invoke
Article 7 Applicants have cited theMajority Opinion of thiscourt in
its 1950 Advisory Opinion, the Separate Opinions of Sir Arnold
McNair and Judge Read, the view of the late Sir Hench Lauterpacht,
and a declaration by a representative of the Respondent. Thelatter
admission, "though not conclusive as to [the meaningof Article 7,has]
considerable probative value [since it contains] recognition by a
party of its own obligations under [Article 71."
B. ANALYSIS SUPPORTING APPLICANTS INTERPRETATIO ONF
"ANOTHER MEMBER OF THE LEAGUE OF NATIONS"
Respondent's Second Objection so misconceives the purposes of
Article 7 and the importance of judicial supervision in the scheme
of the Mandates System, that a brief analysis of the significance of
Respondent's contention is in order.
Respondent's attempt to deny the continuing capacity and
responsibility of States to bring enforcement proceedings in this
Court against violations of the Mandate reflects its failure to
understand the nature of'the interest of Members of the League
' Oppenheim, L.. Inlernolionnl Law: A TreatVol.1, Eighth Edition. ed. bY
H. LStatement hy the Representative of the UofoSouthAfricain the Fourth
Gmmittee, r96th Meeting4 Decembei, ,950,U.N.Ge". As. Off. Rec. 5tSesS..
U.N. Doc A/C. 41185.pp.7-8.
a See Inlcrnalional afnlus o/South-WestAfAdvisory OpinionI.C.JReports
1950.p.128 at 135. 136. OBSERVATIONS OF ETHIOPIA AXD LIBERIA 441
in the proper execution of the Mandate. In Chapter IV, §4, of
its Preliminary Objections (at pp. 363-364) Respondent recapi-
tulates its mistaken conception of the nature of this interest,
previously set forth by it in Chapter III, 5 16.of the Preliminary
Objections (at pp. 310-312). Respondent argues that :
"(a) On the basis that the Leagucwas no1a legalpersona,al1the
the League, who wouldnsthen as hlembers have had a legal interest
in the observance by the Mandatory of al1sucii obligations.
"(b) On tlie basis. however,that the League masa legal persona
.. . ivlembersof the League would have had a legal interest in such
obligations vis-à-vis the Mandatory only insofar as the latter's obli-
theirnationals..."d(Underscoringadded.)'e benefitof Members and
Respondent understands the "benefit of the Members" to mean
material henefits in terms of trade and commerce or specific
benefits to their nationals in such terms as rights of entry, free-
dom of action for missionaries, etc.% This is far too narrow and
technical a conception of "benefit" or "interest." If these had been
indeed the sole interests of the Members of the League. one could
understand and possibly even admit a contention that such "legal
interests" lapsed with the termination of the League's existence.
But the "interests" of the Members of the League in the Mandate,
properly understood, encompassed the achievement of the "material
and moral well-being and the social progress of the inhabitants"
of the Mandated Territory as a "sacred tmst of civilization."
The "legal interests" of the Members embraced the fulfilment of
their duties as members of the organized international community
and were not confined to their possibilities of material advantage
in an immediate and narrow sense. The Mandate agreement, like
Article 22 of the Covenant of the League upon which it was based,
conceived of the "interests" of the Members in terms of the funda-
mental iriterests of the international community in the achieve-
ment and maintenance of international oeace and securitv an- the
promotion of human rights and fundaminta1 freedoms.
In this tme sense, the legal interests and responsibilities of
Applicants could not and did riot lapse so long as the Mandate
exists and so long as Respondent occupies or administers the
affairs of the Mandated Temtory. The continuance of their legal
interests and responsibilitiesas Members necessarily imports their
capacity (and duty) to invoke the powers of this Court under Ar-
ticle7 of the Mandate.
Respondent's Second Objection, in addition to ignoring the
foregoing principles, would undermine the jurai relationship en-
visaged by the Mandates System as linking the four essential ele-
' Respondent's Prcliminory Objcdions363.
* See. foexample.Id.at 311.M2 SOUTH WEST AFRlCA
ments of that system: the Mandatory. the League of Nations, the
Members of the Leame. and the Permanent Court of International
Justice. W.
Irrespective of the theory upon which rests the inescapable and
judicially settled conclusion that the Mandate did not die with
the League's dissolution, these four sides of the quadrilateral jural
system must survive, if any one of them is held to survive as part
of the Mandate. By the working of history, it is a remarkable fact
that each of the four elements exists to-day in different form than
at the moment the Mandate was confirmed:
(a) The Union of South Africa, upon whose behalf the Mandate
was accepted by His Bntannic Majesty, to-day is the Republic of
South Africa, outside the Commonwealth;
(b)The League of Nations has been replaced by the United
Nations;
(c) Members of the League, including Applicants, are to-day
Members of the United Nations; and
(d) The Permanent Court of International Justice has been
succeeded by this Court.
Respondent's contention with respect to the meaning of the
phrase "another Member of the League of Nations" does not.
and indeed cannot, distinguish in principle or logic among these
four interrelated jural elements of the Mandates System. Respondent
has not ventured to show how judicial supervision can be preserved
unless there are States in existence qnalified to invoke it. It has
not shown how administrative supenision, if frustrated as in the
case of this Mandate, can be enforced without judicial supervision.
It has not shown by what theory it claims rights by reason of an
instrument whose survival it denies.
It is only through the continued existence of the Mandate that
Respondent can legaiiy justify its presence in the Territory
today. AU Mandatones, including Respondent, originally de-
rived their authonty to administer mandated temtories solely
by virtne of, and in accordance with, the Mandate instruments
which set forth their rights and duties. When the League was dis-
solved al1other Mandatories either ceased to administer the terri-
tories entrusted to them, or entered into a trusteeship agreement,
deriving their continued authority to administer such territories
from such agreements. Respondent, however, failed to adopt
either of the above two courses; hence, its authority rests solely
upon the continued existence of the Mandate.
The Mandate is a creature of the organized international com-
munity, aç weUas the subject of a legal interest of such community
and its Members. Its existence today rests upon the continued
vitality of the authority conferred upon Respondent by the
organized international community and by the continued vitality
of the rights of such community and its Members to ensure that OBSERVATIOSS OF ETHIOPIA AND LIBERIA
443
the Mandate is properly administered. The only question is, which
representative of the organized international community does one
look to, the League of Nations or the United Nations, the organ
in existence when the Mandate was conferred or the organ now in
existence? The Majority Opinion applied the doctrine of succession
and looked to the United Nations. Judges McNair and Read
declined to apply the doctrine and looked to the League. As shown
above, both views support Applicants' standing in the case at bar.
Insofar asthe point of jurisdiction is concemed, therefore, it makes
no practical difference which view is adopted. Applicants have
urged confirmation of the Majority Opinion, 'however, since such
view appears more responsive to the purposes of the Mandate.
Applicants, nevertheless, rest their submission on jurisdiction on
either or both bases. They fall within the descriptive specification
of "another Member of the League of Nations," either as current
Members of the United Nations or as Members of the League of
Nations at the time of its dissolution.
I. Membershi$in the United Nations
Administrative and' judicial supervision of the Mandatory by
the international community, ashas been noted by Applicants, is
a key feature of the Mandates System. It represents the "secunties
for the performance of this tmst" required under Article 22 of the
Covenant of the League of Nations. Necessarily, the framers of
the Mandates System entmsted such supervision to the appro-
priate international institutions created at the time the System
itself was devised. Thus administrative supervision was entmsted
to the Leagiie of Nations and judicial supervision was entrusted to
the Permanent Court of International Justice. The judicial super-
vision was to be accomplished through the invocation of the com-
promissory clause of the Mandate instruments by States which had
become Meinbers of the organized international community by
joining the League, having in common their joint and several
interests in the proper "interpretation or application of the pro-
visions of the Mandate." (Art. 7.)
It was, of course, hoped and expected that the organs created
after World War 1to represent the international community would
endure. Although they have beeri succeeded or replaced by other
organs, the Court in its 1950 Advisory Opinion mled that the
Mandate survived, and consequently, that international super-
vision of the Respondent, as Mandatory, endures.
The Court held that the reference in Article 7 of the Mandate
to the Permanent Court of International Justice should be replaced
by referénct:to tliéInternational Court of ,jiistict..Alrhough st&ssing
:lrticle 17of the Statuteof the Court. \r,hiclimakes snecificr)rovisiori
for theçubstitution, there is excellent authority {hat eien in the
absence of Article 37 the Court might wellhave mied the same way.
'See Mcmoriolr. pp95,197.444 SOUTH WEST AFRICA
Such authority is reflected in the Report of Committee 1 of
Commission IV on Judicial Organization at the San Francisco
Conference, and the comment upon that Report by Judges Sir
Hersch Lauterpacht. Wellington Koo and Sir Percy Spender in
their joint dissent lin the Aerial Incident Case.
The Report of Cornmittee 1stated, inter alia:
"In a sense . . . the riew Court mai be looked upon as the
successor to the old Court which is replaced. The succession will be
explicitly contemplated in someof the provisionsofthe new Statute,
notably in Article 36, paragraph 4 [which subsequently became
paragraph 51.and Article 37." a
Judges Sir Hersch Lauterpacht, Wellington Koo and Sir Percy
Spender comrnented:
"The formal and, in effect, insignificant changes in the Statute of
the new Court were not to be perrnitted to stand in the way of the
then existing compulsory juridiction of the Permanent Court being
taken over by the International Court. It was specificallycontem-
plated that the continuity of the two Courts should be given eF-
pression by recognizing the continuity of the compulsory juris-
diction at that time existing. It would have been difficult to use
more specific terms: 'the succession will be expressly contempla-
ted .. .
"In fact. a studv of the records of the Conference showsthat the
dt-terniination to &ciiri:tlie <:ontinuityof the t\voCoiirts ivasclosely
linkcd \vit1the questioii ol the compulsory ~u~isdiction of tlie rietv
Court . .."'
In its Advisory Opinion of 1950 the Court reasoned that adminis-
trative supervision must be performed by the United Nations
because: "The necessity for supervision continues to exist despite
the disappearance of the supervisory organ under the Mandates
System. It cannot be admitted that the obligation to submit to
supervision has disappeared rnerely because the supervisory organ
has ceased to exist, when the United Nations has another inter-
national organ performing similar, though not identical, super-
visory functions." ' In support of this reasoning, the Court pointed
out that "The purpose [of Article 80, paragraph I, of the Charter!
rnust have been to provide a real protection for those rights; but
' The point involved here was not the subject of divergence between the
Majority and the Dissmting Opinions.
' Case concerning lhc Acrinl Incidcnl of July 27th. 1955(Isracu. Bulgarie).
Prcliminnvy Objadions: Judgmcnl of May 96th. 1959:ICJ Reports 1959p.127.
Documcnfr of lhc Unilrd Nalions Confcrcncc on InlcrnafianlOrganiralionr.
Son Francisco. 1945,Vol.r.3. U.N. Information Organiration. New York. 1945.
P.,384.
(Isrulinu. Bulgarin). Prcliminnry Objedionr, Judgmnl of May 16th. 1959:I.C.J.
Rcpmls 1959.p. 156at159.
Inlernalid sfalvsO/ Smifh-West Afriul, Advisary Opinion: I.C.J. Reports
1950,p. 128at136. OBSERVATIONS OF ETHlOPIA AND LIBERIA
445
no such rights of the peoples could be effectively safeguarded
without international supervision and a duty to render reports to
a supervisory organ" 'and that "The Assembly of the League of
Nations, in its Resolution of April 18th. 1946, gave expression to a
corresponding view."
The Court, in determining that the International Court of Justice
has re~iaced the Permanent Court and that the United Nations
has reilaced the League of Nations for purposes of the Mandate,
similarly applied the principle of succession, explicit in one case
and implicit in the other, in order to give effect to the purposes of
the Mandate.
The Court recognized that the failure of the League of Nations
and the Permanent International Court, as such, to endure in their
original forms, is irrelevant to the fundamentai principle that
Respondent as Mandatory remains responsible to the organized
international community for the discharge of the "sacred tmst of
civilization." The rationale of the Court's approach is further
confirmed by the carefully reasoned analyses ofSir Geraid Fitzmaurice
and Sir Hersch Lauterpacht. Judge Fitzmaurice has pointed out:
"... the oosition is com~arable with that which exists in the
re3lni of siate succession i,hen one statc takes o\.er territory from
one part of the tmitory of ariother state. l'lirre is tlizn an automatic
succession or de\,olution of al1 rights and obligations locally or
temtorially attached to or conne~.tedwith the arrü transferred,
ivliicli pass witli iIf.for tlie concept of territorial arca. there is
siil~ititutr<ltliat of functional iield.then the position miaht hestated
as follows:that iust as a temtorial area oaisine from one state to
another cames &ith it al1rights and obligations specificallyapper-
tainina to that area in a temtorial manner. so a functional field
'passixïg'from one international organization to another (in the
sense that the former is extinguished but the latter is created
expressly to fulfil the same general purposes, and the extinction of
the former is camed out largely on that basis) cames with it the
rights, obligations, and functions connected with that field, and
appertaining to the capacity to act in it."(Fwtnotes deleted.) a
And in discussing the Advisory Opinion, ontwo separate occassions,
Judge Lauterpacht stated:
"While as a mle the devolution of rights and competences is
aovemed either hv the constituent instruments of the organisations
rn question or by ipecial agreements or decisionsof their Lrgans,the
requirement of continuity of'intemalional life demands that succes-
sionshould he assumed to operate in al1caseswherethat isconsistent
with or indicated by the reasonably assumed intention of the parties
Id. at 136. r37.
Id. at137.
' Fitzmaurice.G.. "The Law and Proeediireof the Intemationai Court of
Justice: Intemational Organizations and Tribunals," 29..British Ytavbook of
InternaliaalLnw. 1952.p. r at 9.446 SOUTH WEST AFRICA
as interpreted in the light of the purpose of the organisations in
question." (Footnotes deleted.)'
*
*
". .. such importation .. . of the rules of successionin relation to
international Ôrganizationsisno more than an exampleof legitimate
application of the principle of effectivenessto basic international
instruments." a
In sum, the Mandates System was premised upon effective
performance ofthe sacred trust ofcivilization by Mandatory Powers.
This could be assured only if administration of Mandated terri-
tories was subject to the compulsory jurisdiction of an Inter-
national Court to adjudicate disputes concerning the interpretation
or application of the Mandate. Only States may institute judicial
proceedings. Hence, the authors of the Covenant endowed the
members of the League of Nations, the Organ then representing
the international community of civilized nations, with the right
to institute the judicial proceedings. Even though "civilization"
in the fom of an organized international community is no longer
embodied in the League, the same powers, objectives and principles
are now represented by the United Nations. United Nations
Members have the same essential attributes as did Members of
the League. namely, membership in the organized international
community and, thereby, parties to a Charter, or covenant, the
purposes of which include supervision over non-self-governing
temtories, including trust territories and mandates.
Put in the form of the analysis of Judge Lauterpacht stated
above, a holding by the Court that United Nations Members have
succeeded to the functions of Leam- Mernbers vis-à-vis the Man-
date would be "no more tlian an example of legitimatv applic:ition
of the principle of effr.cti\.enew to hisic intcriiation;il ~nstrurnents."~
2. Membershi9in the Leagueof Nations
Even if the principle of succession as set forth above were not
accepted by the Court in the instant cases, Applicants are never-
theless competent to invoke Article 7 inasmuch as they were
Members of the League at the time of the League's dissolution.
There is at the very least a de facto carry-over of the League's
.responsibilities to the extent that an important function of the
League continues beyond the League's forma1existence. Such a de
facto carry-over not only justifies the presence of Respondent in the
Mandated temtory, but it also keeps alive the legal interests of the
League and its Members in the Mandate. Hence, States, such as
'Oppenheim, L.,Inlernationnl Law: A TreatisVol. 1. Eighth Edition.ed.
by H.Lauterpacht,Longmans Green and Co., London. 1955p. 168.
'Lauterpacht.H., The Devalopmant otInlernationnl Law by the Inlevnational
CauSee notenI.this page. supra.1958.at280. OBSERVATIONS OF ETHIOPIA AND LIBERIA 447
Ethiopia and Liberia, which were rnemhers of the Leaeue at the
time of the League's dissolution, remain within the description
of "another Member of the Leaeue" for DurDosesof the Mandate.
;The concept of the limited de Tact0 sur;ivai of an entity which has
been formally dissolved is a concept familiar to civilized legal
systems. Thus, in many States of the United States of America, a
dissolveclcorporation remains de factoin existence until it winds up
its corporate affairs. ' Other States of the United States enable
persons who were corporate directors at the time of a corporate
dissolution to sue as trustees on any claim of the corporation. 2
This is but another way of recognizing the continiiing vitality of
the rights and obligations created by the corporation prior to its
dissolution. The "carry-over" principle of dissolved corporations is
implicit in the rule that suit may be brought on behalf of the
defunct corporation only by former directors. Civil law countries
have sirnilar legislation, which keep alive and carry-over the
legal existence of rights and duties of dissolved entities.
An analogous principle of municipal law may be found in the
widely held doctrine that legal relationships established under a
statute by statutory authority survive the expiration of the statute
or statutory authority in the absence of provision to the contrary.
Particularly is this so when a saving clause is employed in the
legislation repealing the statute ordissolving thestatutory authority.
Rights and obligations-according to which property may have
been exchanged, or upon which promises may have been made.
or by which a fiduciary may have been entrusted with property
not his own-are not considered to disappear merely because an
entity or authority goes out of existence and is not succeeded by
another entity which explicitly assumes its rights and obligations.
Modern civilized systems are too sensitive to justice to permit so
illogical and inequitable a result.
With respect to the Mandate, the iegal relations established by
the League continue to exist. In addition to the reasons already set
forth to. support this conclusion, there is an act of the League of
California:West's Annotated Corporation Code,$5 5400-5402 (r955). Mary-
land: Annotated Code of Maryland, Article 2.3.$$76(b), -/S(b)and &(a) ('957). New
JerseyiNew Jersey Statutes Annotated, Title 14g 14 13-14 (1939)New Ywk:
Stock Corporation Law 5 105(8) (1951): Cemeral Corporation Law529 (1943).
Ohio :Page's Ohio Revised Code,5i701.88 (Supp. 1960).
Uniform Business Corporation Law $949-60 [9 Uniforrn Laws Annotated
pp. 204-213 (i957)J-Ieffect iLouisinna: West's Louisiana Statutes Annotated.
Titlerz.$5 53-62 (1951); Miwtesoto: Minnesota Statutes Annotated,20,Chap.
551z3.0i.52o-z~.oi.65(1958). Washingto:evised Code of Washington. Title 23.
a France: See Traite Généraldes Socidlis. Librairie de la SocMt6 du Recueil
Sirey, Vol. 1. pp. 303-304, para. 276 ("S~wival of the MoralEntity") and Vol.
II. p. 587.55 1454 et regon the came rubject (1929). Spain: Corporation Law
of Spain ofJuly 17. 1951. Articles 154 and 15Argentinni Code of Commerce.
Article 435.cwJw: Code of Commerce. Articleî.357 and 361. Ven~zucln: Code
of Commerce; Articles 350 and 351.4‘18 SOUTH WEST AFRICA
Nations which in effect constitutes a "saving clause" of the kind
referred to ahove. This act of the League is the adoption of its
Resolution of April 18, 1946 and particularly paragraphs 3 and 4
thereof :
,...
"3. Recognizesthat, on the termination of the League'sexistence,
its functions with respect to the mandated territories willme 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 Article22 of the Covenant of the League;
"4.Takes note of the expressedintentions of the Membersof the
League now administering temtories under mandate to continue
to administer them forthewell-beinganddevelopmentofthe peoples
concemed in accordance with the obligations contained in the res-
pective Mandates until olherarrangementshave beenagreed belween
the Uniled Nations and the respective mandatory Powers." (Italics
added).'
States which were Memhers of the League when the League was
dissolved continue to have the competence to invoke Article 7.
For purposes of the Mandate, the responsibilities and authority of
the League carry over at least to an extent which qualifies the
Applicants to institute these proceedings.
C. RESPONDENTC 'SONTENTIONS
Respondent proceeds from the premises that the United Nations
did not succeed to the supervisory powers of the League nor has
there been a de facto cany-over of the League's existence for pur-
poses of the Mandate. Hence, Respondent assumes that it is not
accountable to the organized international community either as it
existed when the Mandate was conferred or in its contemporary
existence. Respondent elaborates an argument in which a State
which had withdrawn, or had been expelled from, the League
attempted to exercise rights it had formerly possessed asa League
member. What Respondent has done is to assume that the
League formaiiy exists and that Applicants are not Members of
the League. And why in Respondent's argument are they not
Memhers of the League? Because the League no longer exists.
Respondent's argument misses the central point. If the League
still existed as such, and a State withdrew from memhership,
there would still remain a corporate body and a membership thereof
which could assure compliance with the Mandate.
D. CONCLUSION
Applicants' legal conclusion-that they are competent to
invoke Article 7-is supported by the authority of al1the Opinions
' LeagueofNations Off.1..zistAss.,32-33(plenary1946).
See Respondent'PreliminarObjLdiona. pp. 355-35,65-366. OBSERVATIOPIS OF ETHIOPIA AND LIBERIA 449
delivered in the 1950Advisory Proceedings, whatever rationale may
be adopted from those Opinions.
Apart from the authority of these Opinions, it is submitted that
their fundamental soundness is incontestable in the light of the
terms of the Mandate and its purposes. To deny the competence of
Applicants to proceed under Article 7 would be to reject the con-
clusions embodied in these Opinions and to reject the logic of the
terms, purposes and entire frame of reference of the Mandate. It
would nullify the judicial machinery designed to assure that
Respondent shall faithfully discharge its dulies under the Mandate. SOUTH WEST AFRICA
THERE HAS ARISEN AND NOW EXISTS BETWEEN
APPLICANTS AND RESPONDENT A DISPUTE RELATING
TO THE INTERPRETATION AND THE APPLICATION OF
THE PROVISIONS OF THE MANDATE AND SUCH DISPUTE
CANNOT BE SETTLED BY NEGOTIATION
Applicants submit that the case at bar fulfils the requirements
of Article 7,Paramaph- 2,of the Mandate, in that
I. Theri is a "&spute;"
2.The dispute relates to the "interpretation or the application of
the provisions of the Mandate;" and
3. The dispute "cannot be settled by negotiation."
Each of the requirements is discussed seriatim.
It should be noted that Respondent devotes its Third Objection
to an attempt to insert into Articl7 a requirement which does not
exist. Respondent argues, in defiance of the purpose and plain
text of the Article, that no "dispute" can exist unies the subject
matter of the dispute affects a "material interest" of the Applicant
States or their nationals, and it asserts that no such "material
interest" is shown in the instant cases.l
Applicants submit that Respondent's contention is not only
erroneous in substance, but also misconceived in logic. If relevant
at all R,espohdent's contention relates not to whether a "dispute"
exists. but to whether or not the dispute relates to the "interpre-
tation or the application" of the Mandate. Applicant accordingly
will discuss the contention under that heading in this Chapter.
A. THERE IS A "DISPUTE"
"A dispute," said the Permanent Court of International Justice
in interpreting the counterpart of Article 7 in the Mandate for
Palestine, "is a disagreement on a point of law or fact, a coniiict of
legal views or of interests between two persons." 2
This definition, which Respondent also adopts in its Preliminary
Objection ss,in complete accord with a number of subsequent
definitions of the term "dispute,"' rendered by the Permanent
Court as weli as by this Court. 4The only disagreement appears
'See.for example, pag376. 394ofRespondent' svali>ninn*yObjections.
'TRespondent's Preliminory Objedip.377. P.C.Ser.A, No.2,1924.at II.
'Case conmning Certain GermonIntnLrfs in Polish UppnSP.C.I.J.. Ser.A,
No. 6. ,925. at 14Znkrpretoiiof Pew Treafier with Bulg<rria. Hungary and
Rmnonia. Advisory Opinion: I.Reports1950.p. 65at74. OBSERVATIONS OF ETHIOPIA AND LIBERIA 45I
to have centred upon the question of when a disagreement or
confict must have been manifested. No matter what view one
accepts on this question, there is a "dispute" in the case at bar,
inasmuch as for more than ten years Applicants ,and Respondent
have been expounding and urging conflicting points of view con-
cerning issues of law and fact. For more than ten years, Appli-
cants have insisted, but Respondent has denied, that the Mandate
is in force; Applicants have maintained, but Respondent has denied.
that the United Nations has supe~sory powersover the Mandatory ;
Applicants have asserted, but Respondent has denied, a legal
interest in, and a right to object to, the administration of the
mandated temtory; Applicants have charged, but Respondent has
denied, that the provisions of the Mandate have been violated.
(See Memorials, Chaps. II, V, VI, VII, VIII, and IX.) It is manifest
that there exists between Applicants and Respondent a "dispute,"
as that term was defined by the Permanent Court.
Indeed, Respondent does not question the existence of a dispute
between it and Appiicants conceming points of lawraised in Appli-
cants' Memorials, as is shown by the following statement in the
Preliminary Objections:
"Respondent does not 'disputethat Applicants. in participating in
debates in and resolutions ofOrgÿns and Agenciesof the United
Nations, have contended that the Mandate is in force, that the
United Nations has supervisorypowersover Respondent as Man-
datory and that they have a legalinterest in, and right to object to,
the manner in whichRespondentadministersthe Territory. Neither
does Respondent dispute that it has,in debates in the Organsand
Agenciesof the United Nations and in correspondence with the
contentions.Res mandent, however,deniesthat the Aspute concern-
ing the aforesaippoints of law is one whichcannot be settled by
negotiation."'
Respondent appears to deuy, however, that there is a dispute
regarding the alleged substantive violations of the Mandate,
although Respondent's position on this point is far from clear.
Respondent admits that Appiicants have made known their
views: "Again, in this respect, Appiicants did not avail themselves
of the ordinary diplomatic channels to bring complaints and raise
disputes conceming Respondent's administration of South West
Africa, but participated with other Memben of the United Nations
in debates and resolutions concerning such administration." '
Respondent also admits that it has denied Applicants' contentions:
"Respondent, however, throughoutdenied that it had violated the
' Respndent's Pvrlininary Objcdions, p. 399.
' Id.at 403:432 SOUTH WEST ,\FHICA
provisions of the Mandate and refieatedlystated that, in conformity
with its expressed intention, the Territory was being administered
in the spirit of the Mandate." (Italics added.)' Nevertheless, con-
tends Respondent. "whatever differences may, from debates in the
United Nations. appear to exist between Respondent and the
Xembers 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." 'What is meant by "cog-
nisable" is not clear. Inasmuch as Respondent assumes for the
purposeof its Fourth Objection that the dispute need not concem
what it conceives to be a "material interest." it apparently does not
argue that the dispute is not "cognisable" for that reason. Further-
more, Resppndent presumably does not contend that the dispute
is not "cognisable" due to the negotiations requirement, since that
element is treated separately by Respondent : "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." ' Nor apparently does
Respondent consider the dispute not "cognisable" because it was
not manifested in a timely manner, since Respondent States
that "throughout"it has "denied"the allégationsand has "repeated-
ly stated" its views on the subject.' Possibly Respondent seeks to
imply that there is no "dispute" because it has not joined issue
with every one of Applicants' contentions, although. as it admits,
Respondent has denied the general ailegations. If indeed this
is Respondent's position, it is erroneously conceived.
First of all, it is sufficient, by way of illustration, that Applicants
ailege that apartheid violates Article 2 of the Mandate, and that
Respondent categorically denies the allegation. It is not a necessary
characteristic of a "dispute" that antagonists engage each other
in direct debate on each and every factual point constituting their
differences.
Moreover. pnor to their filing of the Applications and Memorials,
.4pplicants did in fact announce their position on al1points com-
pnsing their side of the dispute. They have consistently voted to
approve and adopt the Annual Reports of the Committee on South
West Africa which, since 1954, have set forth detailed criti-
cisms of Respondent's exercise of the Mandate. Indeed, one
Applicant, Ethiopia, has been a member of that Committee. If
during al1the time since 1954 Respondent has not seen fito respond
to these contentions, but has continued to exercise the Mandate
without regard to the criticisms supported and adopted by the
overwhelming number of.the members of the international com-
munity, it would appear that Respondent disagrees with the criti-
Id.at 404. OBSERVATIOKS OF ETHlOPlA AND LIBERIA 453
cisms. In the circumstances, Respondent's deeds have been its
words.
As a matter of fact, Respondent has stated its position and
voiced its contentions strenuously and often in the United Nations.
At the 78th meeting of the General Assembly's Fourth Committee,
Minister for External Affairs, Mr. Enc Louw, defended hy name the
application of apartheid in South West Africa, defended the agricul-
tural policy of Respondent in the Territory, and defended Respon-
dent's policy of "closer association" between the Territory and
South Africa. 1 At the 900th meeting of the Fourth Committee,
Mr. Louw denied that Respondent has established military bases
or fortifications in the Territory. At the 407th meeting of the
Fourth Committee, Mr. D. B. Sole, Respondent's Representative,
denied that the educational system is inadequate, defended the pass
laws and other restrictions on movement in force in the Territory,
defended the housing policy and land allocation in effect in the
Territory. denied that "Natives" are restncted to being laborers,
and denied any unlawful incorporation or annexation. At the
914th meeting of the Fourth Coinmittee Mr. Van Der Wath, Repre-
sentative of Respondent. denied that the Territory was being
economically developed for the benefit of the "Europeans" at the
expense of the "Natives."' At the 915th meeting, Mr. Van Der
Wath denied a discriminatory land policy in the Territory. At
the 916th meeting, Mr. Van Der Wath denied that the educational
system in the Territory is inadequate, and defended the labor
regulations in force therein. 6
Respondent correctly sums up the differencesbetween Applicants
and Respondent. then, when it States the following in its Preli-
minary Objections (at pages 270 and 271): "The statement that
'repeated debates and resolutions have failed to bring about the
Union's compliance with the Mandate' also involves an assumption
consistently disputed by Respondent. Respondentmaintains that it
faithfully honours the spirit of the Mandate in the administration
of the Territory ..." (Italics added.)
One further point needs to be considered in respect of the ques-
tion, what is a "dispute?" It is a point also relevant to the question,
what is "negotiation?"
-
U.N. Gen.Ass. OK. Rec. 3rd Sers.. rrt Part.. 4th Comm. (U.N. Doc. AI6o3)
at 307-3x0 (1948).
* U.N. Gen. Açç.08. Rec. 14th Sess.. 4th Co-.(U.N. Doc. AIC.4ISR.9m) at
86 (1959).
at66-70 (1954).s. Off.Rec., 9thSess.4th Comm. (U.N. Doc. AIC.41SR. 407)
' U.N. Gen. Ass. Off. Rec. 14th Sess., 4th Comm. (U.N. Doc. A/C.4/SR.gr4) at
165.166 (rggg).
' U.N. Gen. Ass. Off. Rec. 14th Sesç., 4th Comm. (U.N. Doc. A/C.4/SR. 915)at
167-17(01959).
U.N. Gen. Ass.Off. Rec. rqtSess.4th Comm. (U.N. Doç. A/C.4iSR.9i6)at
175-176 (1959).454 SOUTH WEST AFRICA
Respondent does not deny that disputes may be generated, or
negotiations conducted, in the United Nations. Indeed, as has been
shown above. Respondent concedes that a dispute does exist
between itself and Applicants, which dispute has been generated
in the United Nations, at least on issues of law. But Respondent
does appear to base an argument upon its contention that "Appli-
cants did not avail themselves of the ordinary diplomatic channels
to bring complaints and raise disputes." ' It may be assumed that
the reference to undefined "ordinary diplomatic channels" covers
such traditional practices as exchanges of notes or direct confron-
tations of high officjals. It is difficult to conceive that Respondent
would seriously contend, as in fact it has not explicitly sought to
do, that in the contemporary world, "negotiations" cannot take
place in a multilateral fomm. Indeed, the subject-matter of the
dispute in the instant cases is so particularly appropriate for dis-
cussion and consideration in the United Nations that unilateral
attempts to deal with the dispute through channels unrelated to
that body would engender confusion and undermine the very pur-
poses of the Mandate and United Nations' supervision thereof.
The essence of the United Nations and its role in intemational
affairs are well described in the words of Goodrich and Simons:
"The United Nationsis fundamentally a voluntary association of
states,witha setoforgansand proceduresthroughwhichits Member
states haveagreedtoCO-operate, understatedconditions,for common
purposes. I.ike the League of Nations before it, th essenceof th+
United Nations is that techniquespreviously used in international
relatiens-the concertof powers,theinternationalconf6rencep, eaceful
methodsofsettlingdisputes-have beeninslitutionulizedandmadepart
uffairs."(Italics added.'ognizedprocessof conductinginternational
Indeed, if the above description is not accurate. one wonders
what the United Nations is aliabout.
The United Nations exists for the public and private exchange
and expression of official govemmental viewpoints on aii matters
in which Member states have an interest. The essence of such
exchange and expression is to permit the statement of opposing
viewpoints and to seek to reconcile divergences which mark dis-
putes. Fact-finding committees are established to elucidate and
compose differences; permanent and temporary committees are
empowered to negotiate on behalf of the United Nations. Moreover,
and equaiiy important, Member states may entrust their interests
to these committees, acting through them or participating directly
in their activities.Under the Charter, such agencies perform their
duties in a representative and derivative character, acting for the
' Respondent's Prcliminnry Objediap.403.
' Goodrich. L. M. and Simons, A. P., The Unilcd NnliatkoMoinUnnnM of
Internariaal Peusand Sccurity. Brmkings Institution. Washington, p.5597. OBSERVATIONS OF ETHIOPIA AND LIBERIA 455
community of Memberstates as a whole,and protecting theinterests
of each Member state in promoting the United Nations Charter.
In disputing and negotiatiug with Respondent, Applicants have
set forth their views in the GeneralAssembly and in itscommittees,
and have likewise acted through the Organs established by the
United Nations to deal with the dispute and negotiate with Res-
pondent.
The dispute in issue is especiallv suited for consideration in the
central pu;poses for which the'united Nations was eGablished.
namely,
"to develop friendly relations among nations based on
respect for the principle of equal rights andsel/-determinationof
peoples..;
"to achieve international cc-operation in solving international
and in promoting andencouragingrespectfor human rights and forter,
fundamental treedoms for al1 withoat distinction as to race. sex.
Charter.)
Moreover, the subject matter of the dispute covers one of the
major undertakings of United Nations Members "which have or.
assume responsibilities for the administration of territories whose
peoples have not yet attained a fuiimeasure of self-government
[to] recognize the pnnciple that the interests of the inhabitants of
these temtories are paramonnt, and [to] aceept as a sacred tmst
the obligation to promote to the utmost, within the system of
international peace and security established by the ...Charter, the
well-being of the inhabitants of these temtories ..."(Article 73 of
the Charter.)
Further, the dispute concerns the United Nations itself as an
institution, inasmuch as Respondent disputes that the Organi-
zation is vested with supe~isory powers over the Mandate.
Finaliy, and most important. the dispute concerns a "sacred
tmst of civilization". While it affects the interests of Applicants in
assuring compliance with international undertakings, in furthering
the principles of the Charter, and in promoting the welfare and
human rights of the inhabitants of the Mandated Territory, it is
not amatter of sole or exclusive interest to Appiicants andRespon-
dent. The dispute is of concern and interest to aU States, at least
those which are Members of the United Nations. This is manifest
from the above-quoted portions of the United Nations Charter,
as weli as the history of proceedings regarding the Mandate in the
United Nations. It would have been inappropriate, therefore, for
Applicants to attempt solely through their own diplornatic channels456 SOUTH WEST 4FRIC.4
or unilateral offices to determine with Respondent the future
course of the Mandate, "an international institutionwith an inter-
national object," especially in view of the fact that the United
Nations had established Organs and procedures through which
Member States could act to express their views,make their conten-
tions known, and seek to resolve points at issue hetween themselves
and Respondent.
In disputing and negotiating with Respondent in the United
Nations during the past several years, Applicants, therefore, have
been upholding their own legal interests in the proper exercise of
the Mandate; but they have been doing more than that. They have
also been upholding the collective legal interest of the Members
of the United Nations and the interests of the Organization itself.
In instituting these proceedings, Applicants have moved to pro-
tect not only their own legal interests but the legal interests of the
United Nations (which, itself, may not he a party to a contentious
proceeding), as well as the legal interests of every other Memher
state simihrly situated.
To reiterate the definition of "dispute" given in the Maurommatis
case, "A dispute is a disagreement on a point of law or fact, a con-
flict of legal views or of interests between two persons.'
As demonstrated above, a disagreement on points of law and
fact and a conflict of legal views and interests rnanifestly exist
in the instant hies.
B. THE DISPUTERELATES TO THE INTERPRETATIO AND THE
APPLICATION OF THE PROVISION OSF THE MANDATE
As the majority of the Court stated in the Maurommatis Case, a
dispute covered by Article 7 of the Mandate (i.e., a typical com-
promissory clause)-
"may be of any nature; the languageof the article in this respect
is as cornprehensive as possible (any dispute whateuer-tout
différendq, uel qu'il soit);but in every case it must relate to the
interpretation or the applicationofthe provisionsofthe Mandate."
The dispute between Applicants and Respondent relates both
to the interpretation and the application of the provisions of the
Mandate.
(a) With respect to the interpretation of Article of theMandate,
Applicants and Respondent disagree :
(i) Whether the practice of 'apartheid constitutes a violation
ofsaid Article;
' The Mav*ommatis Palestine Concessions. PSer. A., Noz, ,924. 11.
Id.at15. 16. OBSERVATIONS OF ETHIOPIA AND LIBERIA 457
(ii) Whether the economic, politicai, social and educational
policies applied in the Territory constitute a violation of said
Article ;
(iii) Whether Respondent has treated the Temtory in a
manner inconsistent with the international status thereof, and
if so, whether that constitutes a violation of said Article;
(b) With respect to Article 4 of the Mandate, Applicants dis-
agree with Respondent whether it has established military bases
within the Territory, and if so, whether that action constitutes a
violation of said Article;
(c) With respect to Article 6,Applicants disagree with Respon-
dent whether its failure and refusal to render reports tothe General
Assembly of the United Nations constitute a violation of said
Article;
(d) Applicants and Respondent disagree whether the failure of
Respondent to transmit to the General Assembly of the United
Nations petitions from the Territory's inhahitants constitutes a
violation of any of the provisions of the Mandate;
(e) Applicants and Respondent disagree whether Respondent has
unilaterally attempted to modify substantially the terms of the
Mandate, and if so, whether such attempt constitutes a violation
of Article 7 of the Mandate.
Accordingly, the interpretation of Articles z, 4, 6, and 7 of the
Mandate clearly is in dispute. The Court is caiied upon to resolve
the dispute and to determine whether Respondent has faithfully
applied these Articles in accordance with their spirit and purpose.
Having quoted the applicable language, and having demon-
strated that the dispute comes within such language, Applicants
would rest their case on the point at issue.
Respondent, however, contends that no "dispute" is envisaged
by Article 7 unless the subject-matter affectsa material interest ofan
Applicant State or of its nationai. ' In support of its position.
Respondent cites the Mavromn~atis case, the case of Jerzrsalem-
Jaffa District Governorand another v.SuleimanMurra and others, 8
and the views of four writers, Feinberg, Judge McNair, Wessels,and
Schwarzcnbcrger.' Respondent :ils0 assGts general principles,
..~.---iiic its \.ie\vthat thc frarners of the !&indates Svstem did not
intend that a dispute of the sort involved here would be covered bv
Article 7.
It iç submitted that (1)the opinions in the Mavrommatis case and
the Jerusalem case do not, in fact, support Respondent's view;
(2) two of the scholarly authonties cited by Respondent do
not support Respondent's contention, 'and a large numher of
1 The Mnnrommntis Palcsline Cacesrial'.C.I.J.Sm.A, No.2, 1924.
* 1926A.C. 321.cited in Respondent's PreliminaT? Objedp.387.n.1,.
SeeRespondent's P~eliminnry Objeclias. p. 391.n.
3049 SOUTH WEST AFRICA
other scholars.expert in the MandatesSystem, support Applicants'
view; (3) the framers of the Mandates System intended that the
type of dispute involved in the instant cases should be covered by
Article 7 of the Mandate; (4) finaliy, even if Article 7 were inter-
preted as requiring a so-calied"material interest," such an interest
is present in these cases.
1. The Pur$ose and History of the Compromissoly Clause in the
Mandates System
Theannouncedintention ofthe foundersofthe MandatesSystern,
the circumstancessurrounding the creation of the System, and the
nature of the structure they created, demonstrate that the Perma-
nent Court of International Justice was designed to be an integral
part ofthe supe~sory machinery ofthe system. It wasintended to
adjudicate, at the instance of any Memberof the League,disputes
affecting the interpretation and application of the Mandate with
respect to the well-being of the inhabitants of the mandated
temtones.
An important factor in interpreting the comprornissory clause
is the ovemding concern demonstrated by the founders of the
Mandates System for the well-being and development of the in-
habitants of the temtories to be placed under Mandate. President
Wilson expressed to the Councilof Ten his view that "the purpose
[of the Mandates System] was to serve the people in undeveloped
parts, to safeguardthem against abusessuch as had occurred under
German Administration and such as migltt be found under other
administrations." (Italics added.)' The concept of "the sacred
trust," the explicit noms and standards imposedonthe Mandatory,
and the unprecedented machinery of international supervision, ali
had their animating pnnciple in the desire of advanced nations
to protect and assist peoples not yet able to stand for themselves.
This Court confirmed the record of history when it said in 1950
that "the Mandate was created. in the interest of the inhabitants
of the temtory, and of humanity in generai, as an international
institution with an international object-a sacred trust of civili-
zation." 'Inasmuch asthe well-beingofthe inhabitants ofrnandated
temtones constitutes the essentialpurpose ofthe MandatesSystem,
it is impossible to accept Respondent's contention that the Court
may not entertain disputes which are pnmarily concerned with
the weil-beingof such inhabitants.
To implement the design. machinery was created to supervise
the Mandatones. The Council of the League was to receive every
year a report.of the Mandatory's stewardship; a Commission was
ofChicago Pm,WrChicago1930.pp.35,36. tb Lcapa O/Nolhr, nie University
' 1-a4 &YI of South-WsrAhim. AdvisoryOpinion: I.C.JRsportP
1950.p.128nt 132. OBSERVATIONS OF ETHIOPIA AND LIBERIA 459
constituted to receive and examine the annuai reports and to advise
the Council on "all matters relating to the obse~ance of the
mandates." It is significant that the authors of the Mandates
System included a supreme judicial power within the organic
structure of that System. Mandatories were required to agree
when a Mandate was conferred that disputes conceming the Man-
date between themselves and another Member of the Organization
to which they belonged wouid be submitted to the Permanent
Court of International Justice. The Court,itself, was, like the Man-
dates System, a creation of the Covenant. Far from objecting to
the establishment of a supreme judiciai authority. the Council not
only accepted it as an anciliary of the Mandates System by "con-
finning" the instrument in which it appeared, but alsoamended the
original draft so that the Mandatory, and only the Mandatory,
wouid be subject to compulsory jurisdiction at the instance of
another Memher of the League ' Consistent with their fiduciary
role, Mandatories were required to consent to the Court's juris-
diction in advance.
Compuisory jurisdiction in Mandate matters was instituted, then,
for the same reason that the Mandatory was required to submit
annual reports to the Council. When the League of Nations con-
ferred mandates it was not content to depend solely upon the con-
science, or, indeed, the competence of the Mandatory for the
proper exercise of the Mandate. Rather, it devised a system where-
by the Mandatory's administration of the mandated territory was
made subject to the authority of the League and its Members to
reqnire the Mandatory to report, account, and, if necessary, submit
to adjudication. The Permanent Court was intended as an integral
part of the System's supenisory machinery protecting the inhabi-
tants, and the authorities so classify and regard it. aEach Member
of the League, under the defined circumstances, was empowered to
invoke the jurisdiction of the Court to insure that the basic purpose
of the Mandates system-the weii-being and development of the
inhabitants-would be fuliüled.
Explicit indication of the intention of the authors of the Mandate
is found in the circumstances surrounding the compromissory
clause for the British Mandate for East Africa (Tanganyika Tem-
tory). Two Judges of the Permanent Court considered that these
circumstances fumished definitive evidence that Members of the
League were not empowered, under compromissory clauses lacking
the additional paragraph contained in the East Africa Mandate, to
protect the rightsof their own national5 before the Court, but couid
Drotect only interests of a generai nature. a
' See Report tathe Council of the hgusof Nations submitted by Viscount
Ishii. Februar20.1922,hgue ofNationsm. J., No. 7 (rgz).849 at 854.
' See pp. 4&47r.
' Dissontiog Opinions by Judges de Bustamante and OCm, O/th Mawmn-
dis Pnlcsli~ ConccrrMlr.P.C.I.J., Çer. A.2.1924,at 76. 85.460 SOUTH WEST AFRICA
As originally drafted, the compromissory clauses of the Mandates
comprised two paragraphs. The first of these was substantially in
the same form as Article 7 of the Mandate for South-West Africa
aqd other Mandates. A second paragraph, however, provided:
"States Membersofthe League ofNationsmay likewisebringany
claims on behalf of their nationals for infractions of their rights
under this mandate beforethe said Court for decision.1
It is not clearly established whether this second paragraph was
excised by the Milner Commission, by the Powers which approved
the draft before submitting it to the Council, or by the Council
itself. The fact remains that it was in fact excised from al1Mandate
instruments, except that for East Africa. For the rest, only the one-
paragraph text found in Article 7 of the Mandate for South-West
Afnca remained. This history creates profound difficulty for
Respondent's contention that a "material interest" of a State, or
its nationals, must be affected before the compromissory clause may
be invoked since it demonstrates that there was at least some
original thought that the general paragraph did not provide for the
claims of nationals at au.
Respondent has submitted that the interpretation of Article 7
advanced by Applicants could not have been intended because if
effected it would prove unnecessary, impracticable, and would
require the Court to deal with political questions.
Respondent contends that to assume a "need for judicial super-
vision" would be tantamount to anticipating the "probable failure"
ofthe Councilto perform its own supervisory functions. 'Respondent
also argues, in the same context, that if Member states could invoke
judicial process, they would "stand in the position of a custodian of
the rights of the inhabitants of the Mandateci terntories."
Appiicants submit that neither argument is tenable. Judicial
recourse implies no distrust of administrative supervision. On the
contrary, its purpose in the Mandates System is to enforce the
Mandate through contentious proceedings, a power not vested in
the administrative or executive organs. Furthemore, Member
states are not "custodians," nor is their right to institute judicial
proceedings an "interference ... with the policies adopted by the
Mandatories," in Respondent's language. No other method of
initiating contentious proceedings is available, for only States may
be parties to such proceedings before the Court. The State does not
supervise; the State, rather, requests the Court to adjudicate a
dispute. In doing so, it may act as the instrumentality by which
the SupeMsory Organization as a whole may obtain a binding
decision by a contentious proceeding.
'.4rtiele i3 of the British Mandate for East Africa (Tanganyika TmritoryJ,
LeagueofNations 08.J..No. 8 (Part II(1922at 868.
'Respandent's PrelirninaObirclionp. 384. OBSERVATIONS OF ETHIOPIA AND LIBERIA
461
Respondent expresses concern that hypothetically a Mandatory
might "satisfy" the Mandates Commission. yet be attacked judi-
cially on the same point. This argument merely underlines the
importance of judicial jurisdiction in order to obviate unresolved
disputes between the Mandatory, on the one hand, and Member
States on the other. If the Mandatory's position in such a dispute
were to be based upon decisions or policies of the Council and
Commission, the Court would no doubt give due weight to such
a record.
So far as concerns Respondent's implied criticism that the Court
might be induced "to act as an independent supervisory authority," l
the fact is that only one contentious case, prior to the instant
cases, was instituted under the compromissory clauses of the
several mandates, and that the instant cases were brought only
after years of unavailing negotiations with Respondent.
Respondent's fear that the Court would be improperly used, or
that the threat of proceedings would be used, minimizes the im-
portance of the requirement that under Article 7 the Court may
entertain only disputes that "cannot be settled by negotiations."
This is an explicit bar to improper or excessive use of the compro-
missory clause. The functioning of the entire system has properly
placed primary emphasis on the administrative organs, judicial
recourse being supplemerital, though vital. Each organ had its proper
sphere, as Quincy Wright maintains:
"These [League] organs are not al1 eventually responsible to a
supreme authority. They are mutually independent. The L~gue's
organization exemplifies the American theory, of separation of
powers rather than the European practice of unified responsibility.
The Assembly.the Council,the Mandates Commission,the Secreta-
riat, and the Court al1enjoy certain independent powersunder the
Covenant, the mandates, and other constitutional documents." '
The principal role of the Court is to adjudicate disputes brought
toit, within the terms of the compromissory clauses, by Members
of the League when administrative resources have been fully, and,
as in the instant cases, exhaustively employed.
Neither the Council, which approved both the Statute of the
Court and the Mandate, nor the Court itself, seem to have been
concemed that "political" cases might bepresented for adjudication.
Article 7 empowerç the Court to adjudicate cases relating to the
interpretation and application of aU of the provisions of the
Mandate; it makes no distinction between Article 2 and other
Articles.While Article 2 is broad in scope, it must be remembered
that in interpreting and applying it the Court would have the
advantage of the particular standards set forth in other Articles of
' Respondent's Preliminary Objections384-385.
Wright.Q.,Mandates Undtr thc LenguofNotions. The Universiof Chicago
PressC.hicago.,930.p.87.46z SOUTH WEST AFRICA
the Mandate and in the Covenant. These standards were the distil-
lation of a century or more of experience in colonial administration
and were included in the constitutional documents of the Mandates
System because the ideals they expressed were being put into
practice by the System itself. The Court, therefore, would have in
interpreting and applying the Mandate, a framework of law,
doctrine, and practice upon which to rely
The words used in Article 2-"material and moral well-being,"
"social progres"-are akin to other words such as "due process"
and "equal protection" which national Courts are frequently caiied
upon to interpret. Such words are broad in scope, but in the context
of the society to which they pertain they embody meaningful noms.
In the international society, the noms applicable to "the adminis-
tration of temtories whose peoples have not yet attained a full
measure of self-govemment" reflect the consensusofallthe Members
of the United Nations. They include the following principle and
doctrine :
".. .to promote to the utmost . . . the well-being ofthe inhahitants
ofthese temtories, and, to this end:
"a. to ensure,with due respect for the cultureofthe peoplescon-
cemed, their political, economic,social, and educational advance-
ment, their just treatment, and their protection against abuses;
"b. to developself-government,to take due accountofthe political
aspirations of the peoples, and to assist them in the progressive
development of their free political institutions, according to the
particular circumstancesof each temtory and its peoplesand their
varying stages of advancement;. .." (Article 73 of the United
Nations Charter.)
And in the exercise of Tmsteeships which in essence reflect the
same international concern as Mandates, Memben of the United
Nations have agreed that Trust Temtories shall be administered
so as "to encourage respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language, or
religion, and to encourage recognition of the interdependence of the
peoples of the world." (Article 76 of the Charter.)
It cannot be said, therefore, that the Court in interpreting Article
2 of the Mandate would he engaged in an essentially "political
activity," whatever Respondent may intend to connote by use of
that undefined phrase.
In the light of its refusal to accept and implement this Court's
Advisory Opinion of 1950, Respondent's argument that compulsory
juriçdidion is not needed for disputes involving the welfare of the
inhabitants because the Council of the League "could itself request
an advisory opinion from theCourt,"lhas a somewhat ironic ring.
The cases at bar are perhaps the strongest vindication of the
foresight of the founders of the Mandates System in providing for
contentious proceedings against a Mandatory to enforce the pro-
'R-ndent'a PrcliminovyObjection s.284. OBSERVATIONS OF ETHIOPIA AND LIBERIA
463
visions of the Mandates for the benefit of inhabitants of mandated
temtories.
The purpose of the Mandates System, its organizational structure,
and its experience support the judgment of Norman Bentwich to
the effect that the Court-
". ..stands there, behind, as it were. the Mandates Commission
and the Council of the League,as the su@mc guardianof the rights
of nations in the fuliïlmentof the international trust which is con-
ferred on the Mandatory, and as the embodiment of international
justice.It is the Palladium ofjustice in the developmentoftheman-
dated countries,just as the MandatesCommission1sthe Areopagus."
(Italics added.1
Ta conclude in the language of Respondent, it was indeed the
intention of the founders of the Mandates System to grant to each
Member of the League a "legal interest" in the observance by the
Mandatory of its obligations for the benefit of the inhabitants of
the Mandated temtories.
2. The Weighl ofAuthmity
(a) Judicial Authority
(1) The Mawmmatis Case '.
In the Mawmmatis Case,one of the key issuesbefore the Perma-
nent Court was whether jurisdiction was defeated because the
Applicant was espousing the claim of one of its nationals against
the Mandatory. This issue was divided into two parts: (1) whether
there was in fact a dispute between the Mandatory and another
Member of the League, or only between the Mandatory and a private
party; and (2) whether a dispute between the Mandatory and a
Member of the League concerning the private interests ofa Member's
national was covered by the compromissory clause. The Court held
that the dispute was subject to the comprornissory clause of the
Palestine Mandate, emphasizing that
"The dispute may be of any nature; the languageofthe article in
this respectisas comprehensiveas possible(any dis@fc whatnin-
toutdiflérend .uelqu'ilsoit); but in every caseit must relate to the
interpretation or the applicationof the provisions ofthe Mandate.'
The significance of the Court's holding is not that the nght of
Greece to espouse the claim of her national was recognized, so much
as that the right of espousal was strongly resisted andthe Permanent
Court was divided on the question. In other words, there was doubt
' Bentwich,N..Tha MondalesSyslcn,Longmans, Greenand Co.,London. 1930.
P.134
a Th Mawoinmatir Pakrfi~ ConcassionsP.C. I.,Ser. ANo. 2, 1924.
a Id. at15. 16. SOUTH WEST AFRICA
464
on thepart of certain members of the Court that the compromissory
clause was applicable at ali to disputes conceming nationals of
Member states. Respondent, on the contras., contends that this is
one of the two major purposes for the clause. Although the Majority
Opinion of the Court in Mavrommatis did not set forth explicitly the
actual major purposes of the clause, and was not called upon to do
so, it remains obvious that the Mavrommatis case is not authority
for Respondent's contention that only the material benefits of
the Member states and their nationals were included within the
compromissory clause. Indeed, from a reading of the Minority
Opinions and the broad scope of the Majority Opinion, Applicants
submit that it was taken as axiomatic by the Court that Article 26
of the Palestine Mandate (the counterpart to Article 7) embraced
disputes pertaining to the welfare of the inhabitants of mandated
temtories.
The Majority did not explicitly advert to this point. but the
Minority did. Judge Oda described the function of the Court as one
of "indirect supervision of the Mandatory," and added that "an
application by such a Member [of the League] must be made ex-
clusively with a view to the protection of general interests ..."The
relevant excerpt is as follows:
"Under the Mandate, in addition to the direct supervision of the
Councilof the Lea ue of Nations.. .provision is made for indirect
supervisionby the Eourt ;but the latter may only beexercisedat the
request of a Member of the League of Nations (Article 26). It is
therefore to be supposed that an application by such a Member
must be made exclusivelywith a uiew to the protectionofgeneralinter-
ests and that it is not admissible for a State simply to substitute
itself for aprivate person in order to assert his private claims."
(Italics added.)'
The Opinion of Judge de Bustamante in the same case contains
the foilowing language:
under the Mandateactsofa genernlnature affectingthe ublicrnleresl.
the Membersof the League-from whichshe holds t e Mandate-
are entitled, provided that al1other conditions are fulfilled,to have
recourse to the Permanent Court. On the other hand, when Great
Britain takes action affecting private interests and in respect of
individuals and private companies in her capacity as the Admin-
istration of Palestine, there is no question of juridical relations
between the Mandatory and the Membersof the League from which
she holds the Mandate. but of legal relations between third Part!es
whohave nothing to do with the Mandate itself from the standpoint
of public law." (Italics added.)
'DissentingOpinion by Judge Oda, The Mnvrommniis Pnlcrline Caçsrsions.
P.C.I. Ser.A. No. 2.1924.p. 85 at 86.
Dirsenting Opinion byJudge de Bustamante, Th Mnvramolir Palesfine Ca-
csrsiar. P.C.I.J., SA,.No.2. ,924,p.76 at 81. 82. OBSERVATIOSS OF ETHlOPlA AND LIBERIA 465
Speaking in the third Mavrommatis decision, Judge Nyholm
emphasized that the Court's supervisory jurisdiction conçtitutes a
fom of "guarantee" that Mandatories would "act in accordance
with the principles adopted in the interests of the community of
nations by the Covenant."' He said:
"Mandatories were not to iiifringethe rights either of States or of
indivicluals.Each State therefore has a right of control whichit may
exercise by applying tu the Court." '
(2) The case of Jerusalem-Jafa District Governor and another v.
Szrleiman Murra and other~.~
Respondent cites the above case to support the contention
that it was never intended that the Court entertain a suit based on
Articles of the Mandate such as Article z. which are primarily for
the benefit of inhabitants of mandated territories, since "This
would then mean that the Court ... [would bel required to pronounce
on al1matters of policy affecting the material and moral well-being
and the social progress of the inhabitants, which would ...[involve]
decisions of a purely political nature,"3 and "where a legislature or
an administrative body acts within the scope of powers conferred
upon it, it is not the function of Courts of Law to inquire into the
policy or soundness of its acts."'
Respondent hasnot read the Jerusalemdecision correctly. In fact,
the case stands for the opposite of the proposition advanced by
Respondent. The question before the Court was whether a legislative
act of the Administration of Palestine was permissible under Article z
of the Mandate. Far from declining to interpret Article z of the
Palestine Mandate (under which the Mandatory was respousible for
"safeguarding the civil and religious rights of al1the inhabitants of
Palestine irrespective of race and religion"), the Court conceived it
to he its duty to interpret the Mandate. It had to decide whether
Article z permitted expropriation without full compensation. In
rendering its decision, the Court not only interpreted Article 2 of
the Palestine Mandate, but passed upon an administrative act of
the Mandatory as well.
In the language of the Court:
"In their Lordships'opinionthe SupremeCourt wasfullyjustified
in entertaining an argument as to the validity of the Ordinance.
The Ordinancewasmade under the authority of the Orderin Council
of May 4,1923a, nd if and so far asit infringedthe conditionsofthat
Order in Councilthe local Court was entitled and indeed boundto
Dissenting Opinion by Judge Nyholm,Case O/theReodaplolion theMaurom-
matisJerusalemConcessions(Jurisdiction) P.C.I.J., Ser. ir. 1927p. 25at 2h.
1926 A.C.321.
Respondent'sPreliminnryObfcclionr. 386.
Id.at 386,387.466 SOUTH WEST AFRlCA
treat it as void. hmong those conditions was the stipulation that no
Ordinance should be promulgated which was repugnant to or in-
consistent with the provisions of the Mandate, and in view of this
stipulation it was the right and duty of the Court to examine
the terms of the Mandate and to consider whether the Ordinance
was in any way repugnant to those terms.
"But it appears to their Lordsliips that the construction put by
the Supreme Court upon art. z of the Mandate is not justiîied by its
terms. Thearticlestipulated that the Mandatory shall be responsible
for (amongother things) 'safeguarding the civil and religious rights
of al1the inhabitants of Palestine irrespective of race and religion.'
... Nor does it, in their Lordships'opinion, mean that in every case
of expropriation for public purposes full compensation shall be
paid." '
Only after finding that there was no statutory bais for reversing
the administrative act d'id the Court employ the language quoted
by Respondent. That language has no special significance; it is
the expression of a policy followed by al1courts, namely, that courts
of law do not legislate. But where legislation exists-as in the
Mandate-courts will examine challenged administrative acts to
determine whether such acts violate the legislation.
(b) Scholarly Authority
Respondent cites four writers to support its limited view of
"interest" as a basis for invoking judicial supervision: Feinberg,
Judge McNajr, Wessels, and Schwar~enberger.~ Two of these
writers do not, in fact, agree with Respondent.
M. Feinberg takes the position that a Member state can invoke
the compromissory clause against the Mandatory only when the
"interest" of a Memher state or its national has been harmed by a
violation of the terms of the mandate. The learned author thereupon
inquires into what is meant by the word "interest" and quotes with
approval M. Salvioli to the effect thatit is not possible to determine
a prior and in a precise manner the nature of an interest sufficient
to justify proceedings before the Court, and that the sufficiency of
"interest" must be decided in each case. M. Salvioli also is quoted
with approval for discussing and underlining the case of The S.S.
Wimbled~n In ~this connection, Feinberg says:
' Jerusalem-JO~B Dirlricf Governor and Anotv.Suleiman Murra and Othars,
1926 A.C. 321 at 327, 328.
Respondent's Pvcliminnry Objections. p.387.
Feinberg, N.. La Juridiction de la Cour Permanente de Justice Znfernotiorialc
dans le Systdme des Mandats, Librairie Arthur Rousseau, Paris, ,930; MD..ir, A.
"Mandates." C.L.J., Vol. 3. Nz,1928; WesselsL..H..Die Mondaof uir Suiduier-
Afrika (1938); Schwarzenberger,G.. ZnfernationnlLnwr,ThirdEdition, Stevens
and Sons, London, ,957.
Feinberg, N., La Juridiction de la Cour Permanente de Justice Infernationale
da'sThe S.S. Wimbledon, P.C.I.Ser.A, No.rI,1923.us,aris, 1930, at205. OBSERVATIONS OF ETHIOPIA AND LIBERIA
467
"La Cour y a admis qu'il n'est point néceqire, pour la recevabilite
d'une requête, queI'Etat demandeur invoque un intérêtde nature
pécuniaire,mais qu'unintérêt morp alut aussi étresu@sant.
"La Cour s'est donc prononcée pour une interprétation assez
lar~ede la notion d''intérêt'c:'est aumêmeuoint de vue libéralm'il
fa2 se placer dans le domaine des mandats,.pour l'application déla
clause judiciaire." (Italics added.)'
Feinberg concludes this section as follows:
"Et à ce propos, un problème intéressant se pose. Un Etat pour-
rait-il, en invoquant soit l'intérêttant matériel que moral de ses
citoyens juifs, soit un intérêt politiqperopre, citer devanla Cour la
~uissance mandataire ~our la Palestine à raison de la violation Dar
celle-ci de l'une des ilauses concernant l'établissement de Foier
National Juif. Nous pensons que oui, et il peut êtreintéressant de
rappeler a ce propos que tout recemmeni le représentant de la
Pologne hl. Zaleski, prenant la parole au sein du Conseilde la S. N.
au sujet des troubles de Palestine, a soulignéqu'il parlait comme le
ureprésentant d'un pays qui compte trois millions de Juifs.. N'est-il
pas permis de déduirede cette déclarationque ce n'est pas unique-
ment en qualité de membre du Ccinseil,c'est-à-dire de l'organe de
contrôle. quela lJologneentendaitprendreposition à l'égard de événe-
ments de Palestine, mais aussi en tant qu'Etat ayant la garde des
intérêts vitauxdes masses juives de sa population et intéressélui-
méme,du reste, à la solutiondu problèmejuif." (Italics added.) '
It is obvious that M. Feinberg has a broader conceut of "interest"
than Respondent.
-ude- McNair is cited bv Res~ondent on the basis of a auestion
heraised in 1928, whether a~ember state of the League was éntitled
to invoke a compromissory clause, "merely seeking the faithful
observance of the terrns of a Mandate."3 Any doubt Judge
McNair might have entertained in 1928 on this score obviously had
been resolved in his mind when he rendered his Separate Opinion
in the 1950 Advisory Proceeding. Judge McNair stressed that
"Every State which was a Member of the League at the time of its
dissolution still has a legal interest in the proper exercise of the
Mandate." (Italics added.)4 This legal interest may be invoked,
Judge McNair stated, to effectuate the judicial supervision of the
Mandate.
Only two writers may be said, then, to support Kespondent.
Arrayed against them on the point at issue are an impressive
nurnber of other writers.
Norman Bentwich, junst and Attorney General of Palestine
during the British Mandate fbr Palestine, has written:
' Feinberg. N.. Lo JurididiondeIn Cour Permanente ds Jurtir~ Inl~rnntionalc
dans le Systdme der Mandals. LibraArthur RousseauP ,ans. 1930.p.205.
' Id. at205.206.
McNair. A. D.. "Mandates", C.L.J., Voj.No. 2.rg28, p. 157n.8.
Africn, Advisory Opinion: I.C.Reports,950, p.146natr58.l slalO/ South-Wcsl468 SOUTH WEST AFRICA
"The International Court has not yet been called upon to deal
with the application or interpretation of any of theother Articlescon-
cerning public rights, the principle of the open door, or any of tlie
international obligations undertaken by the Mandatory. But it
stands there. behind. as it were, the Mandates Commission and the
Council of the League, as the supreme guardian of the rights of
nations in the fulfilment of the international trust which is conferred
on the Mandatory. and as the embodiment of international justice.
It is the Palladium of justice in the development of the mandated
countries, just as the Mandates Commission is the Areopagus."
(Italics added.) '
Quincy Wright, the American scholar and expert on the Mandates
System, has written in Mandates under the League of Nations:
"Every Memher of the League can regard its rights as infringed
by every violation by themandatory of its duties under the mandate,
even those primarily for the benefit of natives, and can make
representations which if not effective will precipitate a .dispute
referable to the Permanent Court of International Justice if nego-
tiation fails to settle it'"
Hales, a British scholar and student of the Mandates System,has
written:
"The aim of the generalprovision in the [Mandates] Statules, in
my vinu. is 10 encourageStates Membersof the Leaguela keep a close
watch on theaclivities of the Mandatory Power and ta challengeany
interpretation or application of the provisions of the Statutes which
wouldbecontraryto thoseprovisions, whetherthey relateto the welfare
of thenatives,the rightsof foreigners,the@en-doorpolicy 07othemise.
It w~ouldappear, therefore,thata State Memberof theLeagueneednot
haveany interestin the dispute, exceptlhat of wanting 10 seea proper
application of the provisionsof theStatutes." (Italics added.) '
The late Judge Lauterpacht, in referring to the Court's 1950
Advisory Opinion, characterized the Court's holding that Article 7
remained in force in these words: "...the Court was unanimous in
holding that the judicial supervision continued ..."'
Bliss Van Maanen-Helmer, another student of the Mandates
System, has written:
"The fact that a case involving the interpretation of a mandate
has been hrought before the Court is an important precedent in
' Bentwich. N., The Mnndofes Syrtrm, Longmans, Green and Co.. London, i93o.
P. '34.
' Wright. Q.. Mondeles Under lhc Leagur of Nations, University of Chicago
Press C.hicago. ~gjo, p. 475.
Hales. James C., "The Creation and Application of the Mandate System."
Tr94o. p. 256. th< Grotius SocietVol.25, Sweet and Maxwell, Limited. London.
' Oppenheim, L.. Internolional Law:A Treatise. Vol.1.Eighth Edition. ed.by
H. Lauterpacht. Longmana. Green and Co.. London, 1955. p.226. n. 3. OBSERVATIONS OF ETHIOI'IA AND LIBERIA 49
that it shows that the status of a mandated territoryis saleguarded
by international law as me11as by the supervision of the political
institutions of the League of Nations." (Italics added.)l
Chowdhuri, in his analysis of the Mandates System writes:
"Another cornmon feature of both the Trusteeship and the Man-
dates Systems is the express provision for indirect international
judicial supervision over the Administering Authorities."
Respondent in its Preliminary Objections refers ta the term
"judicial supervision" as a "coll~quialism,"~ despite the use of
that term by Judges Lauterpacht, McNair, and Read and some of
the other writers mentioned above. Elsewhere in its Preliminary
Objections, Respondent refers to the "so-called supervision of the
Co~rt."~ Before the United Nations fomm, however, Respondent
has demonstrated a broader appreciation of the need for, and sig-
nificance of, judicial supervision.
Ambassador Jooste, then Respondent's Representative to the
Fourth Committee of the General Assembly, in explaining why
negotiations with the General Asseinbly's Ad Hoc Committee had
failed, is reported to have stated:
.iincr tiis C;o\~rrrimcntha11evcr). intrntion of continuing to <,arry
out tlir spiriofthe sacrcd tniit,lt Iind<Ircidetlto agrc,. to aiqiima
neir international obligation in th:it rc3pect It h:id therefore proyo-
sed tliatnnewinternational instruinriit stioiildbrconcliidcd. revi\.ing
artil le2 to 5 of tlir ori~(in:ilJ1;indatc. \rith iiiinur ameridmrnts.
and also reviv'ineSouth Africa's iritemational cornmitment to carrv
out the sacred kt. It had felt that that would finally place thé
legal relationship between the Union of South Africa and the
Territory of South West Africa beyond al1further douht.
"That solution had appeared to commend itself to the Ad Hoc
Committee, which had, however, also desired that some provisions
should be made for international supervision. The South African
Governmenthad ofleredta submit ai judicial supervision and to accepl
in thut connexion the compulsory jurisdiction of the International
Court of Justice. That proposal, however, had not been regarded as
adequate by the Ad HocCommittee and no agreement had therefore
been reached on that point." (Italics added.)
By equating "judicial supervision" with "international super-
vision" Respondent displayed an understanding of what "judicial
supervision" rneans in the context of mandates or analogous
institutions.
' Van Maanen-Helmer. E., The Mandatas System in Relnlion to Africa ~5th
Pocific Islands, P. S. Ki&gSon,Ltd.. London. 1929. p. 158.
Chowdhuri. R. N., Internalional Mandales and Trusteeship Systems: A Com-
pa"aRespondent's Pvsliminary Objccfions,p. 394.55, p. 168.
Id. ai 372.
VU.. Gen. Ass. Off. Rec. 8thSess.,Izourth Comm., 357th Meeting, p. 266
(U.N. Doc. AIC.4ISR. 357) (~953).47O SOUTH WEST AFRICA
In connection with Respondent's own understanding of judicial
supervision, Applicants again respectfully direct the Court's
attention to Respondent's Statement in the 1950 Advisory Pro-
ceedings, which, in Applicants' view, clearly demonstrates that
Respondent "has nonetheless conceded that Article 7, if in force,
entitled League members to institute proceedings to uphold the
rights of inhabitants of the Territory." '
Respondent now claims that its statement referred only to the
right of League Members "ta participate in the proceedings of
the League as the supervisory body in respect of Mandates, and
not to their -right to institute judicial proceedings under Article
7." 2 In support thereof, Respondent then quotes a further passage
from its 1950 Statement, but al1 that passage says is that no
because the League has been dis-
State may invoke Article 7
solved, which is a different proposition than that of whether. if
Article 7 is in force, it may be invoked ta uphold the rights of in-
habitants of the Territory.
In fact, Dr. Steyn, Respondent's Representative in the 1950
Proceedings, displayed no ambiguity at al1 in his statement. This
is what he said:
"Rightsof the peoplesofSouth-WestAfrica
"57. It may also be argued, as the representative of the Çecretary-
General has pointed out,that even though the Mandate has lapsed
as between the linion of South Africa and the League of Nations,
it nevertheless continues to exist as between the Union and the
peoples of South-West Africa.
"Iliith your permission, 1 shall now deal with that argument."'
*
*
[Dr. Steyn then contends that the inhabitants of the Territory
were not a party to Article zz of the Covenant or to the Mandate
itself; nor was therea stipulation in favour of the inhabitants as a
third party; nor did the inhabitants acquire any rights as a legallv
competent community.]
Under the same heading, "Rights of the peoples of South-West
Africa," Dr. Steyn then proceeds to discuss whether other parties
could uphold the rights of inhabitants. He States:
"62. While the League of Nations was in existence, third States,
if they were Members of the League, had legal rights in respect
of mandated terrilories. The procedure envisaged in Articles II (2)
and 19 of the Covenant could be invoked in case a mandatory failed
ta implement its obligations. Moreover,any dispute betweena man-
datoryaiid anotherMemberof theLeaguerelatingtutheinterpretatiorb
' Mcmorials.p. gj.
a Respondent's Preliminary Objectionp. jgz.
International statof South-West Africa. Pleadings, Oral Arguments. Docu-
ments. p. 273 at 288. OBSERVATIONS OF ETHIOPIA AND LIBERIA
47I
or the application of theprovisions of the Mandate couldbe submitted
to the Permanent Courtof International Justice. The League of
Nations itself, as anganization,had supervisory powersin respect
of the administration of mandateii territories and granted to the
inhabitants the right topetition in a prescribed manner."'(Italics
added.)
*
[Dr. Steyn then proceedson the question of the rights of inhabi-
tants, and makesthe statements wliichare quoted on page 64 of the
Memorials.]
If Dr. Steyn did not consider that Article 7 was for the benefit
of the inhabitants, why did he discuss it under the heading: "Rights
of the Peo$les O/South-West Africa?" If al1that he meant was that
League Members could participate in League proceedings to up-
hold the inhabitants' rights, as Respondent now contends, why did
Dr. Steyn mention Article 7 at all? And why did he mention
Article 7 right after mentioning Articles II (2)and 19 of the Cove-
nant, which provide for participation in League proceedings, and
begin the reference to Article 7 with the word "moreover?"
Applicants ,reaffirm the statement made in their Memovials:
"Moreover, <hough the Union has denied that Article 7 is in
force, the Union has nonetheless conceded that Article 7, if in
force, entitled League Members to iristitute proceedings to uphold
the rights of inhabitants of the Territory."
(c) Summary
Although Article 7 is clear in stating "any dispute whatever
concerning the interpretation and application of the Mandate,"
Respondent has now attempted to import into Article 7 a further
unstated requirement, that the "material interests" of the Appli-
cant State or its nationals must be involved. The contention
ignores the crucial reason why the Mandates System endowed
Member States with a legal interest in the proper exercise of the
Mandate, and would effectively eradicate judicial supervision as a
means ofenforcingcompliancewith the obligations ofthe Mandatory.
The proposition that Article 7, or any other Article, should be
read as embodying qualifications not stated therein can be sus-
tained only by authority of the highest standing. Yet Respondent
has cited only two writers who in fact support its, contention. In
square disagreement with the two writers are Judges Oda, Busta-
mante, Nyholm, McNair and Read, al1 of whom considered the
point in judicial proceedings relating to Mandates, the numerous
other writers mentioned above, and Respondent's own previous
position.
Id.,289-290.
Mcmorials. p93.472 SOUTH WEST AFRICA
3. Applicants Have a "Material Interest" in the Instant Cases
Respondent devotes much attention to "material interest" and
"legal interest" in itsPreliminary Objections, but does not define
or analyze those terms.
"Legal interest" does not require extensive discussion. As Appli-
cants have demonstrated herein, they come within the descriptive
category of States entitled to invoke Article 7 in accordance with
its terms. Thus they have a legal interest because Article 7, to
which Respondent agreed to be bound, endowed them with such
an interest.
In regard to "material interest," Applicants submit that Respon-
dent advances far too narrow a definition of the term. States in
the contemporary warld do not regard their highest national in-
terests as limited to actions by other States which directly and
immediately affect them or their nationals. lThe reasons under-
lying national interest may be many, including strategic, humani-
tarian, moral, ideological, political, economic-or any combination
thereof.
With respect to "peoples not yet able to stand by themselves,"
in the words of the Covenant, or "peoples who have not yet at-
tained a full measure of self-government," in the words of the
Charter, it is obvious that States have considered their interests
involved in the welfare of the inhabitants of such areas. How else
explain their adoption of Article 22 of the Covenant and their
creation of the Mandates System? How else explain Chapters XI
and XII of the United Nations Charter and the creation of the
Trusteeship System? Indeed, the Covenant, the Charter, the
Mandates System, and the Trusteeship System al1 are witness to
the fact that States have considered their aforementioned interest
to be of the highest order-"a sacred trust."
The proceedings in the United Nations are further evidence of
the interest of States. For more than ten years, State after State
has disputed with Respondent in regard to the Mandate, both in
the General Assembly itself and in its Fourth Committee. These
States have obviously considered it their interest to assure that
Respondent abide by its undertakings in the Mandate and in
Chapter XI of the Charter.
Respondent is not entitled unilaterally to define the permissible
scope of interests of other States. Contrary to Respondent's posi-
tion, most States, in the increasingly inter-related community of
nations, today regard the problems of less developed areas as a
matter of great importance to their own welfare.
Applicants helieve that their interest in the proper exercise of
the Mandate, and the interests of al1other States similarly situated,
reflect the highest international concern, and have, therefore,
instituted these proceedings in accordance with the terms of
' SeeRespondent's contention at p. 379 Pveliminary Obfedions. OBSERVATIONS OF ETHIOPIA AND LIBERIA 473
Article 7 of the Mandate. In any meaningful sense of the term,
interests of such scope and nature must be regarded as "material
interests."
C. THE DISPUTECANNOT BE SETTLED BY NEGOTIATION
Chapter II of Applicants' Mernorials and Chapter II of Respon-
dent's Preliminary Objections set forth lengthy accounts of more
than ten years' negotiations hetween Respondent and Members
of the United Nations, including Applicants, in which each side
bas offered its views and has heard the views of the other.
Such negotiations have been variously and successively attempted
through an Ad Hoc Committee. a Good Offices Committee, the
Fourth Committee of the General Assembly, and the Committee on
South West Africa. After more than ten years of frustrated efforts
at negotiation, the General Assembly concluded in a Resolution
adopted in 1960, that "the dispute which has arisen between
Ethiopia, Liberia and other Memher States on the one hand, and
the Union of South Africa on the other, relating to the interpre-
tation and application of the Mandate has nol and cannot be settled
by negotiation." (Italics added.) ' This is a finding of fact by the
highest administrative organ of the United Nations. It embodies a
conclusion amply warranted by an exceptionally full record.
Despite the foregoing record, Respondent professes the view
that the dispute can be settled by negotiation. It omits to state,
however, the unspoken qualification shown by the lengthy record:
negotiation can succeed only upon acceptance of Respondent's
conditions and interpretations.
Respondent, itself, bas frequently avowed the failure of nego-
tiations. The following are illustrative examples:
"As the tems of referenceof your Committee appear to be even
more inflexible than those of the Ad Hoc Committee the Union
Government are doubtfnl whether tltera is any hope that nem nego-
linlionswithin thescopeof your Committee'sterna ofreferencewill lead
to nny positive results." (Italics addea.)
*
*
"It is also mentioned in your letter that the Committeeon South
West Africa isready to continue negotiations with the Union in
order to implement fully the advisory opinion of the International
Courtof Justice regardingthe question ofSouth West Africaand the
Committee invites the Union Government to nominate a represen-
tative to confer with it.
"The Union Government have consistently maintained thut the
Resolution r565 (XV) of r8 Decemb1960.U.N. Gen.Ass.Off .ec.15th Sess..
Supp. No. 16ut jz(A14684) (1960).
Letterdated 25March 1954 from thePermanentRepresentativ ef the Union
of South Africa the United Nations, addressedtheChairman ofthe Cornmittee
on South West Africa, RepooftheCommilisconSouth Wcsl AtricaU.N. Gen. Ass.
Off.Rec. 9thSes.. Supp.No. 14,Annex 1 (c).p.6 at7 (Alz666) (1954).
31474 SOUTH WEST AFRICA
Mandate in respectof South West Africa has lapsedand that theyhave
no other international commitments as aresult of the demise of the
League of Nations. Nevertheless, in order to find a solution which
would remove the question from the United Nations, they offered
to enter into an arrangement with the three remaining Principal
Allied and Associated Powers. This offer was repeatedly rejected by
the United Nations on the grounds that it did not provide means
whereby the advisory opinion of the International Court of Justice
could be implemeuted. In the circumstances that offer has now
lapsed. As there has been no material change in the position as
outlined in my communication of 25 March 1954. the Union Gov-
ernment have come to the same conclusion as they did last year,
namely, that they cannot see that further negotiationswould lead to
any positive results." (Italicsadded.)'
*
* *
"You also state that the Committee remains ready tpcontinue
negotiations with the Union of South Africa in order to implement
fully the advisory opinion of the Intemational Court of Justice
regarding the question of South West Africa and therefore invites
the Union Govemment to designate a representative to confer with
...
"In my communications sent to you on 25March 1954and 21 May
1955, 1 conveyed to you the views of my Government concerning
the submission of reports and petitions as well as the renewal of
neaotiations with vour Committee. As therehasin themeantime been
nomaterid changéinth position outlinedin my previous communic-
ations the attitude of the Union Government remains unchanged."
(Italics added.)a
As the General Assembly has repeatedly found in Resolutions
adopted by ovenvhelming majorities, Respondent has refused,
and continues to refuse, to act on the basis of its international
responsibilities under the Mandate, in the teeth of the Advisory
Opinion of this Court. Thisremains the centre and core of the dispute
between Applicants and Respondent. The very contentions ad-
vanced by Respondent in its Preliminary Objections clearly demon-
strate that its continuous, historic position persists. By its own
contentions it proves, if proof is needed, that the dispute cannot
he settled by negotiation.
Union of South Africa to the,ünitedeNations. addressed to the Chairman of the
Committee on South West Africa, RepovlO/ lha Committee on South WestAfrica,
U.N. Gen. Ass.Off. Rec. 10th Ses., Supp. N~z.Annex 1 (c),p. 7 (Alz913) (1955).
Letter dated 21April 1956 from the Deputy Representative of the Union of
South Africa to the United Nations, addressed to the Chairman of the Committee
on South West Africa, Report of the Conzmittcon South West Afriço,Gen. Ass.
Off. Rec. ~rth Sess., Supp. No. rz. Anne1 (h). p4 (Aijr51) (1956). OBSERVATIONS OF ETHIOPIA AND LIBERIA 475
v1
THE HUMANITARIAN OBJECTIVES OF THE MANDATE
CALL FOR AN INTERPRETATION WHICH WILL MAKE
THE MANDATE EFFECTIVE TO SERVE ITS PURPOSES
Applicants respectfully submit that on the bais of the strictest
reasonable interpretation of the Mandate instrument al1 jurisdic-
tional prerequisites of Article 7 are satisfied in the cases at bar.
Nevertheless it would rnerely ignore the destiny of a multitude of
human beings whose welfare is a charge upon the conscience of
civilization, if Applicants were to pass over in silence the over-
riding humanitarian importance of these cases and their similarity
to certain other cases before this Court and its predecessor, the
Permanent Court.
Precedent, reason and elernental principles of justice support
the propcisition that the issues presented to the Court in these
casesare not of a kind to be handled within narrow and rigid bounds.
Article 7 of the Mandate for German South West Africa must be
interpreted in the context and spirit of the Mandate itself and Ar-
ticle22 of the Covenant of the League of Nations.' It is in this
manner, and this rnanner alone, that the Mandate will be able
to serve the humanitarian objects for which it was created. "That
interpretation is to be favoured which will make the instrument
effective to serve its purpose. No niles of interpretation, therefore,
can be of universal validity, applicable in the same way to al1
international instruments." 2
Article 22 of the Covenant of the League of Nations clearly sets
forth the purpose of the Mandates System-to create a "sacred
trust of civilization" for the"u~ell-beingand development" of the
inhabitants of the rnandated territories. To accomplish this goal the
Mandate for German South West Africa was created asan inter-
national institution ernbodying specifically certain international
obligations. As pointed out by the Court in Internationalstatusof
Sozcth-WestAfrica.8 these international obligations were of two
kinds. The first, embodied in Articles 2 to 5 of the Mandate, corres-
ponded to the "sacred trust of civilization," while the second, set
out in Articles 6 and 7, "related to the machinery for irnplemen-
tation." 3
1 SerOppenheirn. LInlrrnalim~lI.ow.'rreatiss. Vi.Founli Edition. ed.by
A. D.McNair.Longrnans.GreenandCo., London.,928Section554(41p761 nt 765.
Hudson. AI0.. The Fcrmu.ic&r' /ntcr>ief~alurltreA Trcatise. The
MacmillanCornpan;,New York,1943,p. 651
Mvisory Opinion: I.C.J. ReportF xp.o128at i33.476 SOUTH WEST AFRICA
"These obligations [the first above mentioned] represent the very
essence of the sacred trust of civilization. Their raisoird'être and
original object remain. Since their fulfilmentdid not depend on the
existence of the League of Nations, they could not be brought to
an end merely because this supervisory organ ceased to exist. Nor
could the right of the population to have the Territory administered
in accordance with these rules depend thereon." '
Since Article 7, as Article 6, is a vital provision, necessary
for the implementation of this "sacred trust of civilization," it
should be interpreted liberally so as to give effect to the humani-
tarian objects of the Mandate. 2
For the Court to interpret liberally a treaty provision such as
Article 7 of the Mandate, which is embodied in a humanitarian in-
strument, wiil bein accord with a longline of casesdecided by the
International Court of Justice and its predecessor, the Permanent
Court of International Justice. As pointed out by Sir Hersch
Lauterpacht in The Develofimentof International Law by the Inter-
national Court,
,'
. . . in a considerable number of cases the Court, in interpreting
international law, has been in fact confronted with a choice between
the principle of the niinimum of restrictions upon the sovereignty
of States and tlie attribution of full effect to what appears to be the
purpose of the obligations binding upon or undertaken by them.
We have seen that the result of that choice has been such thüt the
jurisprudence of tlie Court in this sphere can to a large çxterit be
conceived in terms of a restrictive interpretation of claims of State
sovereiçnty. It is sufficient to recall the rejection of the rule of
absolute unaiiimity in the interpretation of the Covenant of the
League of Nations; the cases of affirmation of the competence of the
Court through a bold interpretation of jurisdictional clauses: the
assumption of an iiiiplied submission by the parties and the dis-
regard of requirements of form; the interpretation of Alinorities
Treaties in favour iiot of States but of the system of protection of
minorities, and, generally, the construction of clauses providing for
equality of treatment in a manner calculated to secure tlieir obser-
vance not only in law, but also in fact; the wide interpretation of
the scope of the competence of the International Labour Organi-
zation and of other international organs such as the International
River Commissions; the recognition of the prohibition of abuse of
rights; the pronouncements confining within its proper scope the
exception of domcstic jiirisdiction both under Article 15of the Cove-
nant of the League of Nations and elsewhere; and the emphasis
upon the superiority of international obligations over municipal
law." a
Ibid.
Charles Scribner's Sons, New York.1879. Section rr3(5) p. 181; Vattel, The Law.
of Natrons wthc Principles ofthe Lnlvrof Nature, ed. by J. Chitty. JohnsonBrCo.,
Philadelph a1858, Chapter 17. Sectiozgo, p. 257.
a Lauterpacht. H., The Devcloptnenl ofInlerndianl Lnw by the Infernalionai
Col'rt, Stevens and Sons. London. 1958. p. 297. OBSER\'ATIOSS OF ETHIOPIA ANI) LIBERIA
477
One of the prime examples of the foregoing priiiciple is the
Permanent Court's interpretations of the Rlinorities Treaties
which were enacted after World War 1 for the protection of racial,
religious and linguistic minorities against discrimination. To give
effect to the purpose of these treaties the Court continually looked
to the probable consequences of laws which on their faceappeared
to be non-discriminatory. In each case the question was whether
there was discrimination in fact as well as in law. In every one of
these cases it was argued that the Court should iiiterpret the pro-
visions of the Treaty restrictively because it represented an inter-
national regime restrictive upoii national sovcreignty. The Court,
however, rejected these contentions and interpreted the Treaty
provisions liberally so as to implen~ent the prohibitions against
discrimination. A representative example is the Advisory Opinion,
Minority Schools in Albania. ' In the consideration of the problem
hefore it, the Gurt received the views of the two States most
immediately interested, Albania and Greece. The Court referred to:
"Tlic contc.nrionof tlic.-\lh;ininn(;overiiriieiit . tlttic;il>oi.t.-
nientioncdrl:iiit. iiiipo><iior~iherobligationiil>on 11. icducatioii:il
or linguistic minorities a righttiequal to that possessed by otherious
Albanian nationals.Oncethe latter haveceasedto beentitled to have
On the other hand, it is argued, aiiy interpretation which would .
compel Albania to respect the private minorit? schools would
create a privilegein favour of the minority and run counter to thr:
essential idea of the law governing minorities. Moreover, as the
minority régimeis an extraorrlinaryrd~ime.constitutinga derogation
froni the ordinary law, the tert in question should,in caseof doubt,be
construedin the manner most favourahle 10 the sovereigntyof the Al-
banian State."(Italics added.)'
The Court. stressing the importance of the purpose of protecting
minorities, reiterated a statement made in an earlier case. of the
need to assure that the minorities enjoyed "equality in fact as
well as ostensible legal equality in the sense of the absence of dis-
crimination in the words of the law,"S and concluded that the plea
of the Albanian Government was not well founded.' The same
principle was enunciated by the Court in Trealmenf O/ Polish
Nationals in the Danzig Territory :
"lt should be remarked in this connection that the prohibition
against discrimination. in order to be effective, must ensure the
absence of discrimination in fact as well as in law .. . Whether a
measure is or is not in fact directed against these persons 1s a
' Advisor) Opinion. P.C.I.J.. Ser. AIB. N64, 1935
Id.at rg.
' Id. at 23.478 SOUTH WEST AFRICA
question to be decided on the merits of each particular case. No
hard and fast mle can be laid down."'
In the Advisory Opinion, GermanSettlers in Poland, 8 the Court
considered whether the competence of the Council of the League
of Nations under a Minorities Treaty extended to the interpretation
of another treaty under which Poland sought to justify her treat-
ment of a German minority in Poland. Before handing down its
opinion, the Court heard statements on behalf of the Polish and
German Governments. The competence of the Council of the League
of Nations was based upon Poland's consent as embodied in the
Minonties Treaty. and an expansive interpretation of that pro-
vision would be attended by a corresponding degree of restriction
upon Poland's sovereign freedom of action. Poland argued that her
actions were pursuant to rights conferred upon her by Article 256
of the Treaty of Versailles and that the interpretation of that
Treaty was beyond the jurisdiction of the Council of the League
acting uoder the Minority Treaty. Had the Court been persuaded
by Poland's restrictive interpretation argument, it could have
easily construed the provision in question in accordance with the
Polish contention. Instead, the Court rejected the Polish conten- -
tion, asfollows:
". . . The Court is unable to share this view. The main object of
the MinoritiesTreaty is to assurerespect for the rights of Minorities
and to prevent discrimination against them by any act whatsoever
of the Pobsh State. It does not matter whether the rights the in-
fraction of whichisallegedare derived from a legislative,judicial or
administrative act, or from an international engagement. If the
Council ceased to be competent wbenever the suhject before it
involved the interpretation of such an international engagement,
the MinoritiesTreaty would to a great extent be deprived of value.
The reasons urged by Poland for a restrictive interpretation of
the Treaty do not justify the Court in thus constming it ... In
orderthatthepledgedprotection[under the MinoritiesTreaty] may be
certain and efectiue. it is essential that the Council, when acting
under the MinoritiesTreaty, should be competent, incidentally, to
consider and interpret the laws or treaties on which the rights
claimed to be infringed are dependent." (Italics added.)a
In short, the Court preferred a liberal interpretation of the pro-
vision in question to one which would have denied effective en-
forcement of the Treaty, the humanitarian object of which was the
~rotection of minorities. The Court also uointed out that to satisfv
a treaty requirement of non-discrimination.
. .
"There niust IJ~eqiialityinfactasu.clasostensiblelegalequality in
the sense of the absenceof iliscriminationin the wordsof the law."'
I*carmenl of Polish Nntimiand Otkr Pcrsmis of Polish Ovigin or Spccch in
the Danzig Territovy. Advisory Opinion, P.C.I.J., Sr. AIB, No. 44, 1928. at
P.C.I.J.SerB. No. 6.1923.
a Id.at 25.
' rd.at 24. OBSERVATIONS OF ETHIOPIA AND LIBERIA 479
In a similar vein. the Court in Acquisition of Polish Nationality, 1
stated:
".. .Poland, by consenting, in Article 12 of the Treaty, to the
precedingArticlesbeing placed under the guaranty of the League of
Nations in so far as they concem persons belonging to racial or
linguistic minorities, also consents tothe extension ofthis protection
to the application of Articles 3 to6.
"... an .interpretation which would deprive the Minorities Treaty
of a great part of its valueis inadmissible."'
Further support for the contention that international instru-
ments which have as their object the bettement of humanity
should be interpreted liberally so as to give full effect to their
purpose can be found in the Permanent Court's interpretation of
the scope of international organizations. In the Case Relating to
The Territorial Jurisdiction of the International Commission of the
River Oder, a brought by the Unit:ed Kingdom, Czechoslovakia,
Denmark. France, Germany and Sweden against Poland, the
Court was faced with the question of whether the Commission's
jurisdiction extended to tributaries of the Oder within Poland.
In reaching its conclusion that the Treaty of Versailles, in contra-
distinction to most previous treaties, provided for complete inter-
nationalization of the watenvays in question and their free use for
al1States, the Court disposed of a contention by Poland concerning
principles of interpretation:
"Nor can the Court, on the other band, accept the Polish Gov-
emment'scontention that, the text being doubtful, the solution
shouldbe adopted whichimposesthe lest restriction on the freedom
of States. This argument, though sound in itself, must be em loyed
only with the greatest caution. To rely upon it, it is not sukcient
that the purely grammatical analysis of a text should not lead to
definite results; there are many other methods of interpretation. in
particular, referenceisproperly had to the principles underlying the
matter to which the text refers; it will be only when, in spite of al1
pertinent considerations, the intention of the Parties still remains
doubtful, that the interpretation should be adopted which is most
favourableto the freedom of States."'
In EmPloyment of Women During the Night, 6 the Court held that
a prohibition against women's working at night adopted by the
International Labor Conference in 1919 applied to women who held
management and supervisory positions and were not ordinarily
engaged in manual work. The Court reached this conclusion even
after it admitted that the authors of Part XII1 of the Treaty of
' AdvisaryOpinion, P.C.I.J.Sr. B. No. 7,1gz3.
Id. at 16-17.
Id.at26.Ser.A.No. 23.,929.
' ZnicrprctaI ofonh Cau~niia of rgrg conurning Enr~loyntcnlof Womcn
During th Nighl. AdvisoryOpinion.P.C.I.J.,Ser. AIB, No. 50.1932. SOUTH WEST AFRICA
480
Versailles, providing for the creation of the International Labour
Organisation, had as their main preoccupation the amelioration
of manual workers. It was the view of the Court that the Organi-
sation need not circumscribe the scope of its activity so closely.
The humanitarian purpose of the Organisation acted as an affirm-
ative force in the Court's expansive interpretation of its scope.
In the case of the Competenceof the InternationalLabourOrgani-
sation to Regtrlate,Incidentally, thePersonal Work of the Employer, '
and Tlte Regulationof tfteConditions of Persons Employed in Agri-
culture, the Court was asked whether the competence of the
International Labour Organisation extended into areas concerning
which Part XIII of the Treaty of Versailles was silent. A restrictive
interpretation in either case would clearly have led to a negative
answer, but the Court preferred to imply the competence of the
Organisation in both areas because to do so would be consistent
with the purposes and object of the Organisation. Thus, in The
Regulation of the Conditions of Persons Employed in Agriculture,
the Court said:
"lt was much urged iii argument that the establishment of the
International Labour Organisation involved an abandonment of
rights derived from national sovereignty, and that the competence
of the Organisation tlierefore should not be extended by inter-
pretation. There may be sonie force in this argument, but the ques-
tion in every case must resolve itself into what the terms of the
Treaty actually mean, and it is from this point of view that the
Court proposes to examine the question.
"As Part XIII expressly declares, the designof the Contracting
Parties was to establish a permanentlaborrrorganisation.This in
itselfstrongly militates against the argument that agriculture. which
in the world,employing morethan haIfieoi the world'swage earners,y
is to be considered as leftoutside the scope of the International
Labour Organisation because it is not expressly mentioned by
name."
This Court has followed the same approach in .interpreting
international instruments which have as their predominant pur-
pose the betterment of mankind. In both Effect of awards of
compensation made by the U. N. Administratiue Tribunal,' and
Reparation for injuries suffered in the service O/ the United
Nations, the Court \vas faced with questions concerning powers of
the United Nations. In neither case was there a specific grant of
power over the matter in question in the Charter of the United
Nations. In both cases. however, the Court found the requisite
' Advisory Opinion. P.C.I.Ser.B. No. 13.,926
P.C.I.J.. Advisory Opinion. Ser. B.2.1922.
a Id.at23-25,
' Advisory Opinion. I.C.J. Reports 1954. p. 47.
V.C.J. Reports 1949, p. 174, OBSERVATIONS OF ETHICIFIA AXD LIBERIA 481
power arising by necessary implication out of the Charter itself
after investigating the character and aims of the Organization.
In Reservations to the Convention on Genocide, ' the Court was
asked to decide whether reservations to the Convention could be
made, andif so, what were their validity and effect in the absence
of any specific provision. Even though the factual situation isnot
in point, to be noted is the manner in which the Court used the
humanitarian objectives of the Convention as a guide to its deci-
sion. The Court stated:
"The objects of such a convention must also be considered. The
Convention was manifestly adopted for a purely humanitarian and
civilizingpurpose. It isindeed difficultto imaginea conventionthat
might have this dual character to a greater degree, since its ohject
on the one hand is to safeguardthe very existenceof certain human
groups and on the other to confirmand endorsethe most elementary
principles of morality. Insuch a convention the contracting States
do not have any interest oftheir own;they merelyhave, one and all,
a commoninterest, namely. the accomplishment of those high pur-
poses which are the raisond'étreof the convention. Consequently,
in a conventionof this type one cannot speakofindividual advanta-
ges or disadvantages to States, or of the maintenance of a perfect
contractual balancebetweenrights and duties. Thehighidealswhich
inspired the Convention provide, by virtue of the common will of
the parties, the foundation and measure of al1its provisions."'
Asthe Court pointed out, when interpreting international obli-
gations such as are embodied in the Mandate, the purposes of
which are essentially humanitarian, the high ideals which underlie
the agreement, rather than the individual advantages or disadvan-
tages to any State, should provide the measure of al1the provisions.
The implementing provisions of such agreements, being of such
paramount importance, should, therefore, be interpreted liberally,
in the spirit of the whole agreement.
This mode of interpretation has already been accepted by the
Court in interpreting Article 6 of the Mandate.3 In the Advisory
Opinion the Court concluded that Respondeot is required to
submit to the supervision of the General Assemhly of the United
Nations and render annual reports thereto. In reaching its conclu-
sion, the Court interpreted Article 6 of the Mandate so as to accom-
plish its purposes. The Court thus established the effectiveness of
one of the implements for the enforcement of this "sacred trust of
civilization." Applicants respectfully submit that a restrictive
interpretation of Article 7 of the Mandate would be inconsistent
specifically with the Advisory Opinion and in general with al1the
I.C.J. Reports 1951,15.
Id. at 23.
SeeIntevnolionastatuofSouth-WestAfrico,Advisory OpinionI.C.JReportP
1950,p. ~28.482 SOUTH WEST AFRICA
cases set forth above. As Applicants have pointed out herein, the
jurispmdence both of the Permanent Court and of this Court
and the writings of distinguished commentators have uniformly
underscored the need to interpret the provisions of Artic7ein the
spirit of the Mandate as a whole, so as to give complete effectto
the humanitarian objectives of the Mandate instmment. OBSERVATIONS OF ETHIOPIA AND LIBERIA 483
VI1
SUBMISSIONS
WHEREFORE, MAY IT PLEASE THIS IIONOURABLE COURT to dismiss
the Preliminary Objections raised by the Government of the Republic
of South Africa in theSouth West Africa Cases, und to adjudge
and declare that the Court has jurisdiction to hear and adjudicate
the questions oflaw and fact raisedhe Applicationsand Memor-
ialsof the Govemments of Ethiopia and Liberia in these Cases.
Agents for the Govemment Agents for the Govemment
of Ethiopia of Liberia
(Signed)TESFAYEGEBRE-EGZY (Signed)JOSEPHCHESSON
(Signed)ERNE~TA. GROSS (Signed) ERNESTA. GROSS
The Hague, March 1,1962 SOUTH WEST AFRICA
Annexes to theObservationsof the Governmentof Ethiopia and Liberia
AnnexA
COVENANT OF THE LEAGUE OF NATIONS
ARTICLE 22
[See Annex A lotheMernorial,9.200.supra]
AnnexB
XANDATE FOR GERMAN SOUTH WEST AFRICA
[See Annex B to the Mernoria9.zor, supra] OBSERVATIONS OF ETHIOPIA AND LIBERIA 4%
LIST OF THE RELEVANT DOCUMENTS
Article 22 of the Covenant of the League ofNationsand the Mandate
for South-West Africa are printed herein as Annexes A and B. re-
spectively.
The remainder of the documents listed below were filed with the
Registrar of the Court, either at the time of the filingof Applicants'
Memorials, or incidental ta the filingofthese Obseniations,in accordance
with Article 43 of the Rules of the Court.
1. Documents of the United Nations
A. Resolutionsof th GeneralAssembly
1. U.N. Gen. Ass. Off. Rec. 5th Sess., Supp. No. 20 (Al1775)
(1950).
2. U.N. Gen. Ass. Off. Rec. 6th Sess., Supp. No. zo (Alzrrg)
(1952).
3. U.N. Gen. Ass.Off. Rec. 8th Sess., Supp. No. 17 (AIz630)
('953).
4. U.N. Gen. Ass. Off. Rec. 15th Sess., Supp. No. 16 (Al4684)
(1960).
B. Records of the Fourth Committee
1. U.N. Gen. Ass. Off.Rec. 3rd Sess., 1st Part, Fourth Comm.
(U.N. Doc. No. A/603) (1948).
2. U.N. Dac. No. A/C.4/185 (1950).
3. U.N. Gen. Ass. Off. Rec. 5th Sess., Fourth Comm. (U.N.
Doc. No. A/C.~/S.R.I~~(1950).
4. U.N. Gen. Ass. Off.Rec. 8th Sess., Fourth Comm. (U.N.
Dot. No. A/C.4/SR.357).(1953).
5. U.N. Gen. Ass. Off. Rec. 9th Sess., Fourth Comm. (U.N.
Dac. A/C.4/SR.407) (1954).
6. U.N. Gen. Ass. Off. Rec. :14thSess., Fonrth Comm. (U.N.
Doc. No. A/C.4/SR.goo) (1959).
7. U.N. Gen. Ass. Off. Rec. 14th Sess., Fourth Comm. (U.N.
Doc. No. A/C.~/SR.~I~)(1059).
8. U.N. Gen. Ass. Off.Rec. 14th Sess., Fourth Comm. (U.N.
Dac. A/C.~/SR.~I~)(1959).
9. U.N. Gen. Ass. Off. Rec. 14th Sess., Fourth Comm. (U.N.
Dac. A/C.4/SR.916)(1959).
C. Documentsof tke Committeeon SouthWest Africa
I. U.N. Gen. Ass. Off. Rec. 9th Sess., Supp. No. 14, Annex 1
(cl (Al26661(1954).
2. U.N. Gen. Ass. Off.Rec. 10th Sess., Supp. No. 12,Annex 1
(c) (A12913)(1955).
3. U.N. Gen.Ass. Off. Rec. 11th Sess., Supp. No. 12, Annex 1
(b) (A/3151)(1956).486 SOUTH WEST AFRICA
D. RelatedDocuments
I. Documentsof the UniteùNations Conferenceon International
Organization,San Francisco,1945,U.N. Information Organ-
ization, New York, 1945,Vol. 13.
2. Charter of the United Nations
II. Documents of the League of Nations
A. Minutes of the Permanent Mandates Commission
1. PMC(Min.6th Sess.) (1925).
B. Leagueof Nations OficialJournal
1. League of Nations Off. J., pp. 854, 868 (1922).
2. League of Nations Off. J., 21st Ass. p. 58(plenary) (1946).
C. RelatedDocumentsof the League O/ Nations
I. Article22 of the Covenant of the League of Nations.
2. The Mandate for German South West Africa.
III. Misceiianeous
A. Books
I. Bentwich. N., The MandatesSystem, Longmans, Green and
Co., London, 1930.
2. Chowdhuri, R. N., International Mandatesand Trusteeship
Systems, Martinus Nijhoff, The Hague, 1955.
3. Feinberg, N.. La JuridictiondelaCourPermanentedeJustice
Internatiode dans le Systtme des Mandats, Librarie Arthur
Rousseau, Paris, 1930.
4. Goodrich, L. M. and Simons, A.P., The UnitedNations and
theMaintenanceof InternationalPeaceand Security, Brook-
ings Institution, Washington, 1955.
5. Houpin, C. and Bosvieux, H., TraitéGénéradles Socidlés,
Librairie de la Soci6t6du Recueil Sirey. 1929.
6. Hudson M. O.,ThePermanent Couro tfInternationalJustice:
1920-1942.ATreatise. The MacmillanCompany,NewYork,
1943.
7. Margalith, A. M., The International Mandates, Johns Hop
kins Press, Baltimore, 1930.
8. Lauterpacht. H., The Devclopmentof InternationalLaw By
The International Court. Frederick A. Praeger, New York.
1958.
9. Oppenheim, L., International Law: A Treatise. Vol. 1.
Fourth Edition, ed. by A.D. McNair, Longmans, Green and
Co..London, 1928.
IO. Oppenheim, L., International Law: A Treatise, Vol. 1,
Eighth Edition. ed. by H. Lauterpacht, Longmans, Green
and Co., London. 1955.
II. Rosenne, S., The International Court of Justice, Sijthoff,
Leyden. 1957. OBSERVATIONS OFETHIOPIA AND LIBERIA 487
12.Stoyanovsky, J.. The Mandate for Palestine-A Contribution
to theThemy and Practiceof International Mandates, Long-
mans, Green and Co., London. 1928.
13. Van Maanen-Heùner, E., The Mandates System In Relation
to Africa d the Pacific Islands, P. S. King & Son, Ltd.,
London, 1929.
14. Vattel, The Law of Nations or the Principles of the Law of
Nature, ed. by J. Chitty, T. & J. W. Johnson and Co.,
Philadel.hia..-858.
15. Woolsey, T. D., Introduction to the Stwdy of International
Law, Fifth Edition, CharlesScribner'sSons,NewYork, 1879.
16. Wright, Q., Mandates Under the Leagueof Nations, TheUni-
versity of Chicago Press, Chicago, 1930.
B. Articles
I. Brierly, J. L., ''Trusts and Mandates," The British Ycarbook
of International Law, 1929.
2. Fitzmaurice, G., "The Law and Procedure of the Inter-
national Court of Justice: International Organizations and
Tribunals," The British Yearbookof Internafional Law, 1953.
3. Hales, J. C., "The Creation and Application of the Mandate
System," Transactions of the GrotrusSociety, Vol. 25, 1940.
4. McNair, A. D., "Mandates," Vol. 3, No. 2.CambridgeLaw
Journal, 1928. SOUTH WEST AFRlCA
TABLE OF AUTHORITIES
1. List of Cases Cited
A. INTERNATIONC AOLURT OF JUSTICE
I.Case concerningthe Aerial Incident of July z7th, 195. (Israel
v. Bulgaria) Preliminary Objections, Jndgment of May 26.
1959: I.C.J. Reports 1959, p. 127.
2. Admissibility of hearings of petitioners by the Committeeon
South West Africa, Advisory Opinion of June ~st, 1956:
I.C.J. Reports 1956,p. 23.
3. Effect of awards of compensation madeby the U.N. Admini-
strative Tribunal, Advisory Opinionof July 13th, 1954:I.C.J.
Reports 1954,P.47.
4. Reseruationsto the ConventiononGenocide,Advisory Opinion:
I.C.J. Reports 1951, p. 15.
5. International status of South-West Africa, Advisory Opinion:
I.C.J. Reports 1950,p. 128.
6. International status of South-West Africa, Pleadings, Oral
Arguments. Documents.
7. Interpretation of Peace Trenties with Bulgaria, Hungary and
Romania, Advisory Opinion: I.C.J. Reports 1950, p. 65.
8. Rcparation for injuries suffered in the seruiceof the United
Nations, Advisory Opinion: I.C.J. Reports 1949,p. 174.
1. Minority Schoolsin Albania, Advisory Opinion :P.C.I.J. Ser.
AlB. No. 64. 1~35.
. .--
2. Interpretation oftheConvention O, 1919ConcerningtheEmploy-
ment of WomenDuring the Night, Advisory Opinion: P.C.I.J.
Ser. A/B, No. 50,1932,
3. Treatment of Polish Nationals and Other Persons of Polish
OriganorSpeechin the Danzig Territo., Advisory Opinion,
P.C.I.J.Ser. A/B, No. 44, 1932.
4. Case Relating to theTerritorialJurisdictionO/ theInternational
Commission of the River Oder,P.C.I.J. Ser. A, No. 23. 1929.
5. Competenceof theInternationalLabourOrganizationtoRegulate.
IncdentaUy, the Pe~sÛnnl Wwk of the Employer, Adviwry
Opinion P.C.I.J. Ser.B. No. 13, 1926.
6. Case Concerning Certain German Interests in Polish Upper
Siiesia (The Merits), P.C.I.J. Ser. A, No. 7, 1926.
7. Case Concerning Certain German Interests in Polish Upper
Silesia, P.C.I.'J.Ser. A, No. 6, 1925.
8. Case of the Readaptation of the Mavrommatis Palestine Con-
cessions (Jurisdiction), P.C.I.J. Ser. A,No. II.1927. OBSERVATIONS OF ETHIOPIA AND LIBERIA 489
9. The Mavrommatis Palestine Concessions,P.C.I.J. Sr. A,No. 2,
1924.
IO. Acquisition of Polish Nationality, Advisory Opinion: P.C.I.J.
Ser. B, No. j, 1923.
II. GermanSettlersin Poland, Advisory Opinion: P.C.I.J. Ser. B,
No. 6, 1923.
12. The S. S. Wimbledon,P.C.I.J. Ser. A., No. 1,1923.
13. The Regulation of the Conditions of Persons Employed in
Agriculture, P.C.I.J. Ser. B. No. 2, 1922.
C. MISCELLANEOUS
I. Jerusalem-Jaga District Governor and Another v. Suleiman
Murra and Others, 1926 AI:. 321.
II. Listof StatutesCited
A. UNITEDSTATES:
I.California: West's Annotutzd Corporation Code, Vol. 24,
86 5400-~4~2(1. .~~
2. ~&iana: West's Louisiana Statutes Annotated, Title 12,
§§ 53-62 (1951).
3. Maryland: Annotated Code of Maryland, Vol. 2, Article 23,
§§ 76(b), 78(b)and82(a) (1957).
4. Minnesota: Minnesota Statutes Annotated, Vol. 20,Chap. 301,
""-01.4,-5-1.5-.
5. NewJersey: NewJerseyStatuk!sAnnotated,Title14,@14x3-14,
14:13-15(1939).
6. New York: Stock Corporation Law 5 105(8)(1951) ; General
Corporation Law 5~2. (1943).
7. Ohio: Page's OhioRevised Code, § 1701.88 (Supp. 1960).
8. Uniform Business Corporation Law 49-60 [9 Uniform
Laws Annotated 204-213 (195j)l.
9. Washington: Revised Code of Washington, Title 23,
01.5~o-z3.01.650(1958). 23.
B. ARGENTINA:
Codeof Commerce,Article 435.
C. ECUADOR:
Codeof Commerce,Articles 357 and 361.
D. SPAIN:
CorporationLaw of Spain of July 17,1951. Articles 154 and 159.
E. VENEZUELA:
Codeof Commerce,Articles 350 and 351.
Observations of the Governments of Ethiopia and Liberia